The suit for land is a suit in which the relief claimed
relates to the title or delivery of possession of land or
immovable property, [See: Adcon Electronics Pvt. Ltd. vs.
Daulat and Anr., (2001) 7 SCC 698]. Further it is an
established rule that to determine whether it is a suit for land,
the Court will look into barely the Plaint and no other evidence,
[Indian Mineral & Chemicals Co. and Others vs.
Deutsche Bank, (2004) 12 SCC 376]. If by the averments in
the plaint and prayers therein, it appears that the suit is one
for land, it shall be so held and if it does not so appear, then
the suit shall continue under leave granted under clause 12.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3272 OF 2015
(Arising out of S.L.P.(C) No.15900 of 2013)
EXCEL DEALCOMM PRIVATE LIMITED ...APPELLANT
:Versus:
ASSET RECONSTRUCTION COMPANY (INDIA)
LIMITED & ORS. ….RESPONDENTS
Citation;(2015)8 SCC219
2. This appeal has been preferred against the judgment
delivered by the Division Bench of the Calcutta High Court on
March 8, 2013 in A.P.O. No.180 of 2012 whereby the High Court
while holding that the Calcutta High Court does not have
jurisdiction to try civil suit, assumed jurisdiction for non-suiting
the appellant and also held that the Agreement dated
13.2.2007 is not concluded and thus not enforceable, and
dismissed Civil Suit No.299 of 2007 filed by the appellant. The
facts of the case necessary to dispose of this appeal are briefly
narrated below.
3. Uniworth Apparel Limited (hereinafter referred to as
'Uniworth'), being Respondent No.3 herein, was a company
registered in Maharashtra under the Companies Act, 1956. It
had an industrial unit in Thane District of Maharashtra. It
availed credit facilities from ICICI Bank. Uniworth could not
clear the Bank's dues, as a result the Bank assigned their claim
in favour of Asset Reconstruction Company India Limited
(hereinafter referred to as 'ARCIL'), being Respondent No.1
herein, a company incorporated under Companies Act, 1956
and registered with the Reserve Bank of India as a Company
under Section 3 of the Securitization and Reconstruction of
Financial Assets Enforcement of Security Interest Act, 2002
(hereinafter referred to as the ‘SARFAESI Act’). ARCIL took
steps under Section 13 of the SARFAESI Act and took
possession of the assets. Allegedly the ARCIL entered into a
Private Treaty Agreement dated 13.02.2007 (hereinafter
referred to as ‘the Agreement’) with the appellant Excel
Dealcomm Pvt. Ltd. (herein after referred to as 'Excel'), for sale
of the said properties for a consideration of Rs.7.50 Crores.
This was to be a sale under SARFAESI Act wherein the sale was
to be conducted by execution of sale certificate by the ARCIL in
favour of Excel. The Excel alleges that it had even issued aPage 3
3
cheque of Rs. 9.5 Crores dated March 1, 2007 to the ARCIL. In
reply thereto, Mr. Sanjoy Gupta, Vice President of the ARCIL
(Respondent No. 2 herein) had vide letter dated 20-03-2007
informed Excel to collect its cheque since the deal could not be
materialised as the management of ARCIL did not approve
such a proposal. Thus, the sale could not get through and the
present appellant brought out a suit for specific performance
of the Agreement against ARCIL, being C.S. No.299 of 2007, in
the High Court of Calcutta in December 2007. Initially, there
were three Defendants in the said suit, namely, ARCIL, Mr.
Sanjoy Gupta (Vice President of ARCIL) and Uniworth.
However, later on it was found that ARCIL had sold the suit
property to one Webtech Industries Pvt. Ltd. (hereinafter
referred to as 'Webtech'), Respondent No.4 herein, on
10.02.2011. So Webtech was impleaded as Defendant No.4 in
the said suit after the application for impleadment, being G.A.
No.3574 of 2010 was allowed on 06-01-2011. It is to be noted
that the suit property was the one mentioned in the Schedule
of the Agreement and included both movable and immovable
properties as mentioned below:
(i) Mortgage on immovable properties of the Uniworth
situate at Plot No. A606, TTC Industrial Area, MIDC,Page 4
4
Shil Mahape Road, New Mumbai, Maharashtra.
(ii) Hypothecation of the whole of movable assets of
Uniworth situate at TTC Industrial Area, MIDC, Shil
Mahape Road, New Mumbai, Maharashtra including
the movable plant and machinery, machinery spare
tools and accessories and other movables both
present and future (save and except book debts).
4. ARCIL filed an application, being G.A. No.1225 of 2011, for
revocation of leave granted under Clause 12 of Letters Patent
by the High Court of Calcutta to the Excel and asking return of
the plaint in C.S. No.299 of 2007 to be filed before the Court
having jurisdiction to try the same. The said application was
based on following grounds:
(a) The suit was effectively a “suit for land” and the
immovable property was situate in New Mumbai,
Maharashtra. Therefore, as per clause 12 of Letters
Patent the suit should be filed in a Court having
territorial jurisdiction over the immovable property.
(b) That the alleged Private Treaty Agreement between
ARCIL and Excel was entered into pursuant to
Section 13(4) of the SARFAESI Act and even the salePage 5
5
was to be conducted by execution of sale certificate
as provided in Security Interest (Enforcement) Rules,
2002 (hereinafter referred to as “Rules”). Therefore,
the jurisdiction of civil court is excluded.
(c) That the Private Treaty Agreement provided that
Mumbai Court would have exclusive jurisdiction.
5. The learned Single Judge of the Calcutta High Court under
Original jurisdiction, vide his judgment and order dated
22.12.2011 dismissed the application for revocation of leave
and refused to return the plaint for the following reasons:
(i) The suit was not a suit for land as the Private Treaty
Agreement required creation of security or charge of
the assets mentioned in the schedule i.e. “mortgage
of immovable properties” and “hypothecation of
movable properties”; the nature of this security was
not mentioned in the agreement and thus, any
security could be created on the said mortgage or
hypothecation. Therefore, the learned High Court
came to the conclusion that the enforcement of
terms of agreement would not lead to the decree in
suit for land.Page 6
6
(ii) With respect to Forum Selection Clause, the High
Court held that the ARCIL had waived its right to
object to the lack of jurisdiction by participating in
application for impleadment of Respondent No.4,
wherein orders were passed on 06.01.2011. The
learned High Court noted that ARCIL had made no
objection to the jurisdiction while the impleadment
application was argued.
(iii) On the question of the jurisdiction of Civil Court
being ousted by the SARFAESI Act, the High Court
found that the breach of present agreement would
not fall under Section 17 of the SARFAESI Act
wherein the Debt Recovery Tribunal is given the
jurisdiction to rule only that whether the sale was a
correct measure adopted and conducted properly. In
the present case, even if it is assumed that ARCIL
was the assignee of ICICI and a third party sued for
specific performance against such assignee, the
case would not fall under Section 17 of the SARFAESI
Act.
6. Aggrieved by the judgment and order dated 22.12.2011Page 7
7
passed by the learned Single Judge of the Calcutta High Court,
dismissing the application for revocation of leave granted
under Clause 12 of Letters Patent, ARCIL filed an appeal before
the Calcutta High Court, being A.P.O. No.180 of 2012. The High
Court in this appeal, analysed the judgment of the learned
Single Judge in the Original Jurisdiction of the High Court of
Calcutta. The High Court came to following conclusion while
allowing the appeal:
(I) The Private Treaty Agreement was not to be
considered a concluded contract as it was subject to
the approval of the Board of Directors of the ARCIL.
Since, the approval was not given and even the
cheque supplied by Excel was made available for
return, the said agreement was at best a term sheet.
(II) On the point of suit for land the High Court found the
alleged sale of assets was to take place by issuing
“sale certificate” in terms of Rule 5(6) of the Rules
which pre-supposes the handing over of the
possession.
(III) In view of above two conclusions, the High Court
found it was not necessary to answer the question
regarding forum selection clause.Page 8
8
7. On the basis of these conclusions, the Division Bench of
the High Court reversed the order of the learned single Judge
holding that the contract could not be specifically enforced as
it was not a concluded one and also that it would be a suit for
land if, at all, the suit is maintainable. Therefore, the Division
Bench revoked the leave granted under Clause 12 of the
Letters Patent.
8. In the above factual backdrop, following questions arise
for our consideration:
(i) Whether the suit for specific performance filed
by Excel was a “suit for land”?
(ii) Whether the Private Treaty Agreement
conferred an exclusive jurisdiction on the Court of
Mumbai and if so, Whether or not ARCIL waived this
clause by participating in impleadment application
without protest?
(iii) Whether the jurisdiction of civil Court is barred
in the present case by virtue of Section 17 of
SARFAESI Act?
Suit for land
9. Clause 12 of the Letters Patent of the High Court of
Calcutta reads:
“12. And we do further ordain that the said High
Court of Judicature at Fort William in Bengal in the
exercise of its ordinary original civil jurisdiction
shall be empowered to receive, try and determine
suits of every description, if, in the case of suits for
land or other immovable property, such land or
property shall be situated, or, in all other cases, if
the cause of action shall have arisen either wholly,
or in case the leave of the Court shall have been
first obtained, in part, within the local limits of the
ordinary original jurisdiction of the said High Court,
or if the defendant at the time of the
commencement of the suit shall dwell or carry on
business, or personally work for gain, within such
limits; except that the said High Court shall not
have original jurisdiction in cases falling within the
jurisdiction of the Small Cause Court at Calcutta, in
which the debt or damage, or value of the
property sued for does not exceed one hundred
rupees.”
A plain reading of the provision suggests that ordinary original
civil jurisdiction of the High Court of Calcutta will extend in
following cases:
(a) In a suit for land or other immovable property-
• where such land or property is wholly situated in the
territorial jurisdiction of the High Court of Calcutta;
• where such land or property is situated in part only
within the said territorial jurisdiction of the Court, if the
leave of the Court shall have been first obtained.
(b) in suits other than suit for land
• if the cause of action has arisen wholly within the said
limits;
• where the cause of action has arisen in part only within
the said limits, if the leave of the Court shall been first
obtained;
• If the defendant at the time of the commencement of
the suit dwells or carries on business or personally
works for gain within such limits.
10. In the present case, a suit was filed for the specific
performance of the Agreement which contemplated the sale of
property, as has been described in para 1 under Section 13 of
SARFAESI Act in terms of the Rules. The question with respect
to Clause 12 of Letters Patent in the present case is that
whether the present suit is suit for land.
11. The suit for land is a suit in which the relief claimed
relates to the title or delivery of possession of land or
immovable property, [See: Adcon Electronics Pvt. Ltd. vs.
Daulat and Anr., (2001) 7 SCC 698]. Further it is an
established rule that to determine whether it is a suit for land,
the Court will look into barely the Plaint and no other evidence,
[Indian Mineral & Chemicals Co. and Others vs.
Deutsche Bank, (2004) 12 SCC 376]. If by the averments in
the plaint and prayers therein, it appears that the suit is one
for land, it shall be so held and if it does not so appear, then
the suit shall continue under leave granted under clause 12. In
the present case, the prayer in the plaint was couched in
following words:
“A decree for specific performance of the
agreement for sale recorded in the document
dated February 13, 2007 being Annexure “A”
hereto by directing the Defendant no. 1 and 2 to
issue in favour of the plaintiff Sale Certificate in
respect of assets mentioned in Schedule 1 to
Annexure A hereto and on as is where is basis in
terms of the said agreement”
12. The learned counsel for the Respondent has very
emphatically argued that this prayer is in effect a prayer for
possession of the said properties since the procedure under
the Rules for execution of the sale certificate, the transfer of
possession is pre-requisite. Therefore, he has submitted that
although, the possession is not asked for in direct words but
that would be the obvious corollary to granting of the prayer.
Further, another point which has been emphasized on behalf of
respondent is that the prayer requires sale to be effected in
terms of the Agreement, and therefore, the entire agreement
may be read as a part of the prayer.
13. On the question of suit for specific performance of an
agreement to sell being a suit for land, this Court has laid
down a clear principle in Adcon Electronics Pvt. Ltd. vs.
Daulat Ram and Anr., (2001) 7 SCC 698, that a suit for
specific performance simplicitor without a prayer for delivery
of possession is not a suit for land as Section 22 of the Specific
Relief Act, 1963 categorically bars any Court to grant such
relief of possession in a suit for specific performance unless
specifically sought. In view of this judgment, in the present
case, the only question for our determination in the plaint is
whether a prayer for delivery of possession is sought or not ?
The prayer sought is issuance of sale certificate which is
provided in Appendix V to the Rules under SARFAESI Act. The
sale certificate reads as follows:
“Whereas the undersigned being the authorised
officer of the …......................... (name of the
institution) under the Securitization and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 and in
exercise of the powers conferred under Section 13
read with Rule 12 of the Security Interest
Enforcement Rules, 2002 sold on behalf of the
…........................ (name of the secured
creditor/institution) in favour of the
…......................... (purchaser), the immoveable
property shown in the schedule below secured in
favour of the …......................... (name of the
secured creditor) by …..................... (the names of
the borrowers) towards the financial facility
….......................... (description) offered by
….......................... (secured creditor). The
undersigned acknowledge the receipt of the sale
price in full and handed over the delivery and
possession of the scheduled property. The sale of
the scheduled property was made free from all
encumbrances known to the secured creditor
listed below on deposit of the money demanded
by the undersigned.”
14. It may be noted that the sale certificate sought under the
prayer requires the delivery of possession of the suit property.
Thus, we find that the prayer for delivery of possession was an
implicit one in the present case. The prayer as sought in the
plaint could not have been granted without the delivery of
possession of the suit property as the sale certificate itself
contemplates the delivery of the immovable property. Thus, in
view of this we find that the Adcon Electronics would not apply
as there was a prayer for delivery of possession in the present
case. Therefore, we hold that the present suit was indeed a
suit for land.
Exclusive jurisdiction
15. Now, we shall consider as to which court has the
jurisdiction to entertain and try the suit. Clause 5 of the
Agreement entered into between the parties reads as under:
“The payment/cheque shall be drawn and made
payable in Mumbai. The jurisdiction shall be Courts
of Mumbai.”
Clause 9(e)(viii) of the Agreements further reads as follows:
“Disputes, if any, shall be subject to the
jurisdiction of Mumbai Court/Tribunals only”
It is clear from these two clauses that the intention of the
parties to the Agreement was to restrict limitation to the
forums/courts of Mumbai only. This Court in Swastik Gases P.
Ltd. vs. Indian Oil Corporation Ltd., (2013) 9 SCC 32, has
held as under:
“The very existence of a jurisdiction clause in an
agreement makes the intention of the parties to
an agreement quite clear and it is not advisable to
read such a clause in the agreement like a statute.
In the present case, only the Courts in Kolkata had
jurisdiction to entertain the disputes between the
parties.”
Therefore, we are of the opinion that the Courts of Mumbai
were granted exclusive jurisdiction as per the Agreement and
we find no reason to create any exception to the intention of
the parties.
16. In view of the above-mentioned two findings that the
present suit is a suit for land, and that the parties had granted
exclusive jurisdiction to the Court of Mumbai, the jurisdiction of
the Court at Calcutta is clearly ousted as per law. Thus, from
the above conclusion it appears that the plaint will have to be
returned by the Calcutta High Court as it does not have the
jurisdiction. Therefore, we are of the view that the question of
jurisdiction of the Debt Recovery Tribunal need not be
answered. Consequently, this appeal is dismissed. The parties
may proceed to take any appropriate measure in an
appropriate forum as provided in law to enforce their rights.
….....…..…………………..J.
(M.Y. Eqbal)
...........…………………….J.
(Pinaki Chandra Ghose)
New Delhi;
April 01, 2015.
Print Page
relates to the title or delivery of possession of land or
immovable property, [See: Adcon Electronics Pvt. Ltd. vs.
Daulat and Anr., (2001) 7 SCC 698]. Further it is an
established rule that to determine whether it is a suit for land,
the Court will look into barely the Plaint and no other evidence,
[Indian Mineral & Chemicals Co. and Others vs.
Deutsche Bank, (2004) 12 SCC 376]. If by the averments in
the plaint and prayers therein, it appears that the suit is one
for land, it shall be so held and if it does not so appear, then
the suit shall continue under leave granted under clause 12.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3272 OF 2015
(Arising out of S.L.P.(C) No.15900 of 2013)
EXCEL DEALCOMM PRIVATE LIMITED ...APPELLANT
:Versus:
ASSET RECONSTRUCTION COMPANY (INDIA)
LIMITED & ORS. ….RESPONDENTS
Citation;(2015)8 SCC219
2. This appeal has been preferred against the judgment
delivered by the Division Bench of the Calcutta High Court on
March 8, 2013 in A.P.O. No.180 of 2012 whereby the High Court
while holding that the Calcutta High Court does not have
jurisdiction to try civil suit, assumed jurisdiction for non-suiting
the appellant and also held that the Agreement dated
13.2.2007 is not concluded and thus not enforceable, and
dismissed Civil Suit No.299 of 2007 filed by the appellant. The
facts of the case necessary to dispose of this appeal are briefly
narrated below.
3. Uniworth Apparel Limited (hereinafter referred to as
'Uniworth'), being Respondent No.3 herein, was a company
registered in Maharashtra under the Companies Act, 1956. It
had an industrial unit in Thane District of Maharashtra. It
availed credit facilities from ICICI Bank. Uniworth could not
clear the Bank's dues, as a result the Bank assigned their claim
in favour of Asset Reconstruction Company India Limited
(hereinafter referred to as 'ARCIL'), being Respondent No.1
herein, a company incorporated under Companies Act, 1956
and registered with the Reserve Bank of India as a Company
under Section 3 of the Securitization and Reconstruction of
Financial Assets Enforcement of Security Interest Act, 2002
(hereinafter referred to as the ‘SARFAESI Act’). ARCIL took
steps under Section 13 of the SARFAESI Act and took
possession of the assets. Allegedly the ARCIL entered into a
Private Treaty Agreement dated 13.02.2007 (hereinafter
referred to as ‘the Agreement’) with the appellant Excel
Dealcomm Pvt. Ltd. (herein after referred to as 'Excel'), for sale
of the said properties for a consideration of Rs.7.50 Crores.
This was to be a sale under SARFAESI Act wherein the sale was
to be conducted by execution of sale certificate by the ARCIL in
favour of Excel. The Excel alleges that it had even issued aPage 3
3
cheque of Rs. 9.5 Crores dated March 1, 2007 to the ARCIL. In
reply thereto, Mr. Sanjoy Gupta, Vice President of the ARCIL
(Respondent No. 2 herein) had vide letter dated 20-03-2007
informed Excel to collect its cheque since the deal could not be
materialised as the management of ARCIL did not approve
such a proposal. Thus, the sale could not get through and the
present appellant brought out a suit for specific performance
of the Agreement against ARCIL, being C.S. No.299 of 2007, in
the High Court of Calcutta in December 2007. Initially, there
were three Defendants in the said suit, namely, ARCIL, Mr.
Sanjoy Gupta (Vice President of ARCIL) and Uniworth.
However, later on it was found that ARCIL had sold the suit
property to one Webtech Industries Pvt. Ltd. (hereinafter
referred to as 'Webtech'), Respondent No.4 herein, on
10.02.2011. So Webtech was impleaded as Defendant No.4 in
the said suit after the application for impleadment, being G.A.
No.3574 of 2010 was allowed on 06-01-2011. It is to be noted
that the suit property was the one mentioned in the Schedule
of the Agreement and included both movable and immovable
properties as mentioned below:
(i) Mortgage on immovable properties of the Uniworth
situate at Plot No. A606, TTC Industrial Area, MIDC,Page 4
4
Shil Mahape Road, New Mumbai, Maharashtra.
(ii) Hypothecation of the whole of movable assets of
Uniworth situate at TTC Industrial Area, MIDC, Shil
Mahape Road, New Mumbai, Maharashtra including
the movable plant and machinery, machinery spare
tools and accessories and other movables both
present and future (save and except book debts).
4. ARCIL filed an application, being G.A. No.1225 of 2011, for
revocation of leave granted under Clause 12 of Letters Patent
by the High Court of Calcutta to the Excel and asking return of
the plaint in C.S. No.299 of 2007 to be filed before the Court
having jurisdiction to try the same. The said application was
based on following grounds:
(a) The suit was effectively a “suit for land” and the
immovable property was situate in New Mumbai,
Maharashtra. Therefore, as per clause 12 of Letters
Patent the suit should be filed in a Court having
territorial jurisdiction over the immovable property.
(b) That the alleged Private Treaty Agreement between
ARCIL and Excel was entered into pursuant to
Section 13(4) of the SARFAESI Act and even the salePage 5
5
was to be conducted by execution of sale certificate
as provided in Security Interest (Enforcement) Rules,
2002 (hereinafter referred to as “Rules”). Therefore,
the jurisdiction of civil court is excluded.
(c) That the Private Treaty Agreement provided that
Mumbai Court would have exclusive jurisdiction.
5. The learned Single Judge of the Calcutta High Court under
Original jurisdiction, vide his judgment and order dated
22.12.2011 dismissed the application for revocation of leave
and refused to return the plaint for the following reasons:
(i) The suit was not a suit for land as the Private Treaty
Agreement required creation of security or charge of
the assets mentioned in the schedule i.e. “mortgage
of immovable properties” and “hypothecation of
movable properties”; the nature of this security was
not mentioned in the agreement and thus, any
security could be created on the said mortgage or
hypothecation. Therefore, the learned High Court
came to the conclusion that the enforcement of
terms of agreement would not lead to the decree in
suit for land.Page 6
6
(ii) With respect to Forum Selection Clause, the High
Court held that the ARCIL had waived its right to
object to the lack of jurisdiction by participating in
application for impleadment of Respondent No.4,
wherein orders were passed on 06.01.2011. The
learned High Court noted that ARCIL had made no
objection to the jurisdiction while the impleadment
application was argued.
(iii) On the question of the jurisdiction of Civil Court
being ousted by the SARFAESI Act, the High Court
found that the breach of present agreement would
not fall under Section 17 of the SARFAESI Act
wherein the Debt Recovery Tribunal is given the
jurisdiction to rule only that whether the sale was a
correct measure adopted and conducted properly. In
the present case, even if it is assumed that ARCIL
was the assignee of ICICI and a third party sued for
specific performance against such assignee, the
case would not fall under Section 17 of the SARFAESI
Act.
6. Aggrieved by the judgment and order dated 22.12.2011Page 7
7
passed by the learned Single Judge of the Calcutta High Court,
dismissing the application for revocation of leave granted
under Clause 12 of Letters Patent, ARCIL filed an appeal before
the Calcutta High Court, being A.P.O. No.180 of 2012. The High
Court in this appeal, analysed the judgment of the learned
Single Judge in the Original Jurisdiction of the High Court of
Calcutta. The High Court came to following conclusion while
allowing the appeal:
(I) The Private Treaty Agreement was not to be
considered a concluded contract as it was subject to
the approval of the Board of Directors of the ARCIL.
Since, the approval was not given and even the
cheque supplied by Excel was made available for
return, the said agreement was at best a term sheet.
(II) On the point of suit for land the High Court found the
alleged sale of assets was to take place by issuing
“sale certificate” in terms of Rule 5(6) of the Rules
which pre-supposes the handing over of the
possession.
(III) In view of above two conclusions, the High Court
found it was not necessary to answer the question
regarding forum selection clause.Page 8
8
7. On the basis of these conclusions, the Division Bench of
the High Court reversed the order of the learned single Judge
holding that the contract could not be specifically enforced as
it was not a concluded one and also that it would be a suit for
land if, at all, the suit is maintainable. Therefore, the Division
Bench revoked the leave granted under Clause 12 of the
Letters Patent.
8. In the above factual backdrop, following questions arise
for our consideration:
(i) Whether the suit for specific performance filed
by Excel was a “suit for land”?
(ii) Whether the Private Treaty Agreement
conferred an exclusive jurisdiction on the Court of
Mumbai and if so, Whether or not ARCIL waived this
clause by participating in impleadment application
without protest?
(iii) Whether the jurisdiction of civil Court is barred
in the present case by virtue of Section 17 of
SARFAESI Act?
Suit for land
9. Clause 12 of the Letters Patent of the High Court of
Calcutta reads:
“12. And we do further ordain that the said High
Court of Judicature at Fort William in Bengal in the
exercise of its ordinary original civil jurisdiction
shall be empowered to receive, try and determine
suits of every description, if, in the case of suits for
land or other immovable property, such land or
property shall be situated, or, in all other cases, if
the cause of action shall have arisen either wholly,
or in case the leave of the Court shall have been
first obtained, in part, within the local limits of the
ordinary original jurisdiction of the said High Court,
or if the defendant at the time of the
commencement of the suit shall dwell or carry on
business, or personally work for gain, within such
limits; except that the said High Court shall not
have original jurisdiction in cases falling within the
jurisdiction of the Small Cause Court at Calcutta, in
which the debt or damage, or value of the
property sued for does not exceed one hundred
rupees.”
A plain reading of the provision suggests that ordinary original
civil jurisdiction of the High Court of Calcutta will extend in
following cases:
(a) In a suit for land or other immovable property-
• where such land or property is wholly situated in the
territorial jurisdiction of the High Court of Calcutta;
• where such land or property is situated in part only
within the said territorial jurisdiction of the Court, if the
leave of the Court shall have been first obtained.
(b) in suits other than suit for land
• if the cause of action has arisen wholly within the said
limits;
• where the cause of action has arisen in part only within
the said limits, if the leave of the Court shall been first
obtained;
• If the defendant at the time of the commencement of
the suit dwells or carries on business or personally
works for gain within such limits.
10. In the present case, a suit was filed for the specific
performance of the Agreement which contemplated the sale of
property, as has been described in para 1 under Section 13 of
SARFAESI Act in terms of the Rules. The question with respect
to Clause 12 of Letters Patent in the present case is that
whether the present suit is suit for land.
11. The suit for land is a suit in which the relief claimed
relates to the title or delivery of possession of land or
immovable property, [See: Adcon Electronics Pvt. Ltd. vs.
Daulat and Anr., (2001) 7 SCC 698]. Further it is an
established rule that to determine whether it is a suit for land,
the Court will look into barely the Plaint and no other evidence,
[Indian Mineral & Chemicals Co. and Others vs.
Deutsche Bank, (2004) 12 SCC 376]. If by the averments in
the plaint and prayers therein, it appears that the suit is one
for land, it shall be so held and if it does not so appear, then
the suit shall continue under leave granted under clause 12. In
the present case, the prayer in the plaint was couched in
following words:
“A decree for specific performance of the
agreement for sale recorded in the document
dated February 13, 2007 being Annexure “A”
hereto by directing the Defendant no. 1 and 2 to
issue in favour of the plaintiff Sale Certificate in
respect of assets mentioned in Schedule 1 to
Annexure A hereto and on as is where is basis in
terms of the said agreement”
12. The learned counsel for the Respondent has very
emphatically argued that this prayer is in effect a prayer for
possession of the said properties since the procedure under
the Rules for execution of the sale certificate, the transfer of
possession is pre-requisite. Therefore, he has submitted that
although, the possession is not asked for in direct words but
that would be the obvious corollary to granting of the prayer.
Further, another point which has been emphasized on behalf of
respondent is that the prayer requires sale to be effected in
terms of the Agreement, and therefore, the entire agreement
may be read as a part of the prayer.
13. On the question of suit for specific performance of an
agreement to sell being a suit for land, this Court has laid
down a clear principle in Adcon Electronics Pvt. Ltd. vs.
Daulat Ram and Anr., (2001) 7 SCC 698, that a suit for
specific performance simplicitor without a prayer for delivery
of possession is not a suit for land as Section 22 of the Specific
Relief Act, 1963 categorically bars any Court to grant such
relief of possession in a suit for specific performance unless
specifically sought. In view of this judgment, in the present
case, the only question for our determination in the plaint is
whether a prayer for delivery of possession is sought or not ?
The prayer sought is issuance of sale certificate which is
provided in Appendix V to the Rules under SARFAESI Act. The
sale certificate reads as follows:
“Whereas the undersigned being the authorised
officer of the …......................... (name of the
institution) under the Securitization and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 and in
exercise of the powers conferred under Section 13
read with Rule 12 of the Security Interest
Enforcement Rules, 2002 sold on behalf of the
…........................ (name of the secured
creditor/institution) in favour of the
…......................... (purchaser), the immoveable
property shown in the schedule below secured in
favour of the …......................... (name of the
secured creditor) by …..................... (the names of
the borrowers) towards the financial facility
….......................... (description) offered by
….......................... (secured creditor). The
undersigned acknowledge the receipt of the sale
price in full and handed over the delivery and
possession of the scheduled property. The sale of
the scheduled property was made free from all
encumbrances known to the secured creditor
listed below on deposit of the money demanded
by the undersigned.”
14. It may be noted that the sale certificate sought under the
prayer requires the delivery of possession of the suit property.
Thus, we find that the prayer for delivery of possession was an
implicit one in the present case. The prayer as sought in the
plaint could not have been granted without the delivery of
possession of the suit property as the sale certificate itself
contemplates the delivery of the immovable property. Thus, in
view of this we find that the Adcon Electronics would not apply
as there was a prayer for delivery of possession in the present
case. Therefore, we hold that the present suit was indeed a
suit for land.
Exclusive jurisdiction
15. Now, we shall consider as to which court has the
jurisdiction to entertain and try the suit. Clause 5 of the
Agreement entered into between the parties reads as under:
“The payment/cheque shall be drawn and made
payable in Mumbai. The jurisdiction shall be Courts
of Mumbai.”
Clause 9(e)(viii) of the Agreements further reads as follows:
“Disputes, if any, shall be subject to the
jurisdiction of Mumbai Court/Tribunals only”
It is clear from these two clauses that the intention of the
parties to the Agreement was to restrict limitation to the
forums/courts of Mumbai only. This Court in Swastik Gases P.
Ltd. vs. Indian Oil Corporation Ltd., (2013) 9 SCC 32, has
held as under:
“The very existence of a jurisdiction clause in an
agreement makes the intention of the parties to
an agreement quite clear and it is not advisable to
read such a clause in the agreement like a statute.
In the present case, only the Courts in Kolkata had
jurisdiction to entertain the disputes between the
parties.”
Therefore, we are of the opinion that the Courts of Mumbai
were granted exclusive jurisdiction as per the Agreement and
we find no reason to create any exception to the intention of
the parties.
16. In view of the above-mentioned two findings that the
present suit is a suit for land, and that the parties had granted
exclusive jurisdiction to the Court of Mumbai, the jurisdiction of
the Court at Calcutta is clearly ousted as per law. Thus, from
the above conclusion it appears that the plaint will have to be
returned by the Calcutta High Court as it does not have the
jurisdiction. Therefore, we are of the view that the question of
jurisdiction of the Debt Recovery Tribunal need not be
answered. Consequently, this appeal is dismissed. The parties
may proceed to take any appropriate measure in an
appropriate forum as provided in law to enforce their rights.
….....…..…………………..J.
(M.Y. Eqbal)
...........…………………….J.
(Pinaki Chandra Ghose)
New Delhi;
April 01, 2015.
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