IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 FAO.No. 93 of 2008 --------------------------- (OS.NO.820/2007 OF I ADDL.SUB COURT,ERNAKULAM) .................... APPELLANT/PLAINTIFF: ----------------------------------- M.P.MOHAN DAS, AGED 43, S/O.P.PURUSHOTHAMAN NAIR, "NARAYANAMANDHIRAM" EROOR SOUTH P.O., PIN 682 306 NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.C.ELDHO. RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. SRI.MIRZA, AGED 30, S/O.GOPALAKRISHNAN, THADATHIL HOUSE, ADIMALY P.O, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT. 2. SRI.M.T.VISWAMOHANLAL, AGED 52, S/O.THAMPI, MATHALIPARA HOUSE, ADIMALY P.O., MANNAMKANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT. R1 & R2 BY ADV. SRI.THOMAS M.JACOB. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = FAO 93 OF 2008 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of May, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is filed against the decision of the court below holding that the suit from which this appeal arises has been instituted in a court which has no territorial jurisdiction to try the matter. 2.The indisputable position is that the appellant had pleaded in the plaint, as regards cause of action, as follows: “The cause of action for the above suit arose on 05.02.2007 the date on which the agreement for sale was executed at the residence of the plaintiff at Thripunithura and an amount of FAO93/2008 -: 2 :- Rs.5,00,000/- was paid through the Federal Bank Limited, Statue Junction, Thripunithura along with an amount of Rs.10,000/- paid in cash at the time of executing the agreement for sale at Thripunithura at Nadama village, Kanayannur Taluk in Ernakulam District, within the jurisdiction of this Hon'ble Court.” 3.The relief sought for in the suit is for a decree allowing the plaintiff to recover a sum of Rs.5,10,000/- with future interest @ 18% per annum from the date of suit. 4.The court below has proceeded on the footing that the plaint claim is based on an agreement and what the plaintiff has claimed is a decree for money charged on an item of property which is situated within the jurisdiction of yet another court. Because of the fact that the plaintiff had made reference to an agreement to sell, the court below had also presumed that the suit is FAO93/2008 -: 3 :- one based on an agreement to sell. 5.In our considered view, the aforesaid two assumptions are erroneous in as much as the plaint proceeds to be one only for recovery of money and the cause of action is built on the plea that the amount claimed was paid at Thripunithura by issuing a cheque from a bank which is situated in Thripunithura. The territorial jurisdiction so built up puts the suit squarely within the jurisdiction of the court below. It is not a case where the plaintiff has claimed specific performance of an agreement to sell and in the alternative, a relief for return of advance. No decree charged on immovable property is also sought for. For the aforesaid reasons, we are satisfied that the impugned judgment is wrong. The same is accordingly set aside and the court below is directed to proceed with the plaint, however without prejudice to the defendants raising any FAO93/2008 -: 4 :- question of jurisdiction on the basis of pleadings and evidence that may be placed before it in due course. The appeal allowed accordingly. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/1905