What is basic concept of Marshalling of securities as per S 81 of Transfer of property Act?

 Marshalling of securities is a crucial legal doctrine under the Indian Transfer of Property Act, 1882, specifically governed by Section 81. This equitable principle ensures fair treatment among creditors when multiple properties are used as security for different loans.

Definition and Legal Provision

Marshalling means arranging or systematizing securities in a proper order. Under Section 81 of the Transfer of Property Act, if the owner of two or more properties mortgages them to one person and then mortgages one or more of these properties to another person, the subsequent mortgagee has specific rights regarding debt recovery.

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Whether the court can partially set aside an arbitration award if it is in violation of provisions of The Indian Contract Act?

 Thus, to summarize where a debtor, owing several distinct debts to one person, makes a payment indicating that the payment is to be applied to the discharge of some particular debt, the payment must be applied accordingly in terms of S. 59 of the Contract Act. However, where the debtor omits to so intimate, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits, according to S. 60.Where neither party makes any appropriation, the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by limitation in terms of Section 61 of the Contract Act. {Para 51}

52. In the present case, there is neither any averment nor any evidence that the respondent while making payments to the appellant in terms of the Contract ever indicated the manner of apportionment. When neither party specifies the manner of apportionment, then the amount has to be first adjusted towards earlier debts irrespective of limitation as indicated by Section 61 Contract Act. Thus, the money which was continuously being received from the respondent was to be apportioned to the previous amounts that were due in the earlier Agreements as has been reflected in the ledger accounts. The amount as due in 2018 was the claimed amount of Rs. 2,64,99,671/-.

53. The learned Arbitrator while was correct in observing that the arbitration had been invoked pursuant to the Contract of 12.11.2012 renewed in 2015, but he overlooked the statutory provisions under Contract Act for apportionment of money received from the Respondent from time to time. Rather the documents of Respondent especially the confirmation letters and also the Reply to the Legal Notice, not only reflect his own admissions of the outstanding liability but also that the apportionment of money was done in accordance with Section 61 of the Contract Act.

III. Award suffers from patent illegality as is based on no evidence and in contravention of substantive Law:

54. Section 28(1)(a) of the A&C Act, 1996 mandates the arbitral Tribunal to decide the dispute in accordance with the substantive law for the time being in force in India.

55. Section 28(1)(a) and (3) of the AC Act, 1996, which reads as follows-

“28. Rules applicable to substance of dispute.—(1) Where the place of arbitration is situate in India,—

(a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;

.—(3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.”

56. Hence, if the award is passed in violation of the provisions of the Transfer of Property Act or in violation of the Indian Contract Act, it necessarily suffers from patent illegality and has to be set aside.

57. The Ld. Arbitrator, in the present case has not only based his findings overlooking the admissions of the respondent coupled with no evidence being led by the respondent but has completely overlooked the statutory provisions of the Contracts Act, 1996 which is a substantive law applicable in the present proceedings. It is also evident that the admission/acknowledgement of the outstanding dues was in reference to the two Agreements dated 12.11.2012 and 31.03.2015. Therefore, the conclusions arrived at by the learned Arbitrator that the claim did not pertain to the two Agreements under which the arbitration had been invoked is based on non-appreciation of the evidence and ignoring the admissions which were on record and also in contravention of the statutory provisions of law.

 In the High Court of Delhi at New Delhi

(Before Neena Bansal Krishna, J.)

Amazing Research Laboratories Ltd. Vs  Krishna Pharma 

O.M.P. (COMM) 376/2020

Decided on March 13, 2023

Citation: 2023 SCC OnLine Del 1498

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Supreme Court: Landlord-Tenant Disputes Under Transfer Of Property Act Arbitrable Except When Covered By Rent Control Laws

  Landlord-tenant disputes governed by the Transfer of Property Act are arbitrable as they are not actions in rem but pertain to subordinate rights in personam that arise from rights in rem. Such actions normally would not affect third-party rights or have erga omnes affect or require centralized adjudication. An award passed deciding landlord-tenant disputes can be executed and enforced like a decree of the civil court. Landlord-tenant disputes do not relate to inalienable and sovereign functions of the State. The provisions of the Transfer of Property Act do not expressly or by necessary implication bar arbitration. Transfer of Property Act, like all other Acts, has a public purpose, that is, to regulate landlord-tenant relationships and the arbitrator would be bound by the provisions, including provisions which enure and protect the tenants.{Para 48}

49. In view of the aforesaid, we overrule the ratio laid down in Himangni Enterprises and hold that landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2402 of 2019, 

Decided On: 14.12.2020

 Vidya Drolia and Ors. Vs.  Durga Trading Corporation and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, Sanjiv Khanna and Krishna Murari, JJ.

Citation: MANU/SC/0939/2020

Read full judgment here: Click here

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Whether the dispute between licensor and licensee will be arbitrable even if the defendant has not filed application U/S 8 of Arbitration Act?

Objection of learned counsel for the plaintiffs that since no application under Section 8 of the Act has been filed by the defendant, hence the plea for rejection of the plaint cannot be accepted, deserves to be rejected in view of the decision of this Court dated 15th January, 2018 in CS (SO) No. 125/2017 Parasramka Holdings Pvt. Ltd. vs. Ambience Pvt. Ltd. and another, wherein this Court held that party invoking the arbitration clause does not have to file a formal application seeking a specific prayer for reference of the dispute to arbitration as long as it raises an objection in the written statement that the present suit is not maintainable in view of the arbitration clause in the agreement.

33. Keeping in view the aforesaid judgments as well as the judgment in Eastern Medikt (supra) and judgments of the learned Single Judge and Division Bench of this Court in Sharad P. Jagtiani (supra), this Court is of the view that the party invoking the arbitration clause does not have to file a formal application seeking a specific prayer for reference of the dispute to arbitration as long as it raises an objection in the written statement that the present suit is not maintainable in view of the arbitration clause in the agreement.

57. In the present case the defendant on the first day of the appearance itself even before filing of the written statement has raised the objection under Section 8 of the Arbitration and Conciliation Act and hence this objection cannot be summarily rejected on the ground that no application has been filed by the defendant under Section 8 of the Act.

In view of the discussion above, prima facie the plaintiffs have a right in their favour and interest in land which is more than that of a lessee or at least that of an irrevocable licensee. In MANU/SC/0359/1999 : (1999) 5 SCC 651 Olympus Superstructures vs. Meena Vijay, Supreme Court held that the relief of specific performance of an agreement can be awarded by an arbitrator. Thus if the arbitrator can direct creation of an interest in a property, the arbitrator can also award declaration of the interest of the parties in the property. Further, as held in Booz Allen in paragraph 46, an agreement to sell or an agreement to mortgage does not involved any transfer of right in rem but creates a personal obligation and, therefore, the claim for specific performance will be arbitrable contrary to a mortgage which is a transfer of a right in rem. Moreover, as noted in Vidya Drolia, there is nothing in the Transfer of Property Act or the Specific Relief Act which forbids the rights of the parties being decided by arbitration. The rights of the plaintiffs herein at best governed by the Transfer of Property Act or the Specific Relief Act, or that of an irrevocable licensee under the Easements Act can still be decided in arbitration. Consequently the present suits are not maintainable and the parties may avail the remedy of arbitration.

IN THE HIGH COURT OF DELHI

CS (COMM) 184/2020, 

Decided On: 21.07.2020

 Dharamvir Khosla  Vs. Asian Hotels (North) Ltd.

Hon'ble Judges/Coram:

Mukta Gupta, J.

Citation: MANU/DE/1394/2020

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Whether term in compromise decree restraining alienation of property transferred by it is valid?

 The decision refers to a similar case in Khiali Ram v. Raghunath Prasad (1906) 3 A.L.J. 621, in which Knox, J., held that a term of the compromise embodied in a decree that the party to whom the house was conveyed under it was not at liberty to transfer it without the consent of the other party to that compromise was void as being a restraint upon alienation and that the house could be transferred in spite of that condition. Thus the restraint imposed on the plaintiff and defendants 3 to 6 that if they want to effect a sale etc. they could do so only jointly, but not individually, in respect of their respective shares, is clearly an absolute restraint, which is void under Section 10 of the Transfer of Property Act.

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1969

 P.L.N. Paramasivam Vs.  P.K. Ramaswami Gounder and Ors.

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Whether surrender of tenancy by one co-lessee to the landlord will bind other co-lessee?

1) The appellant/plaintiff, on 6th June, 1984 instituted the suit from which this appeal arises, pleading (i) that the appellant/plaintiff and the respondent/defendant No. 1 Rakesh Kumar, vide Deed dated 3rd September, 1975 entered into a partnership, to start a firm in the name and style of M/s. Neel Jewellers, to carry on business of repair and sale of silver jewellery and repairing and making of gold ornaments, at Shop No. 47 U.B., Jawahar Nagar, Delhi which was jointly taken, on rent by the appellant/plaintiff and the respondent/defendant No. 1 Rakesh Kumar for partnership business, from the respondent/defendant No. 2 Maya Devi, who was the mother of the respondent/defendant No. 1 Rakesh Kumar.

2) A lease is nothing but a contract between the lessor/landlord and the lessee/tenant. Law relating to leases of immovable property is otherwise codified in the Transfer of Property Act. Section 4 of the Transfer of Property Act, which was enacted later in point of time, provides that the Chapters and Sections of the Transfer of Property Act which relate to contract shall be taken as part of the Contract Act. Chapter V, titled "Of Leases of Immoveable Property", of the Transfer of Property Act does not provide for relations inter se lessee, if more than one i.e. of performance of obligations of a lessee under the lease. However the same under Section 111 titled "Determination of Lease" provides for termination of lease inter alia by express or implied surrender. However it does not provide, whether surrender of lease, in the event of lease in favour of more than one person, has to be by all or even one of them is capable of so surrendering the lease and which surrender would bind the others as well. Mention may also be made of Section 108 titled "Rights and Liabilities of Lessor and Lessee", in the absence of a contract to be contrary, and which vide Section 108(B)(q) provides it to be a liability/obligation of the lessee to, on determination of lease, put the lessor into possession of the property. Here, there is no pleading or evidence of any contract between the appellant/plaintiff and the respondent/defendant No. 1 as lessees on the one hand and respondent/defendant No. 2 as lessor on the other hand, having contracted to the contrary. I had during the hearing also referred the counsels to Section 45 of the Transfer of Property Act which provides that when immovable property is transferred for consideration to two or more persons, they are, in the absence of a contract to the contrary, entitled to interests in such property equivalent to the proportion of the consideration paid by them and in the absence of evidence thereof, to equal interest in the property. A lease of property is a contract of transfer of property within the meaning of Section 45 of the Act.

3) I fail to see, that when under Section 43 of the Contract Act one of the two persons who have together taken a premises on rent, by making payment to the landlord is in a position to discharge the liability of the other tenant also, why the surrender of tenancy by respondent/defendant No. 1 herein, who along with the appellant/plaintiff had taken the premises on rent, would not bind the appellant/plaintiff. The appellant/plaintiff, if had intended to the contrary, considering that the landlord was none else but the mother of the respondent/defendant No. 1, ought to have contracted to the contrary and which was not done. In the absence of a contract to the contrary, under Section 43 of the Contract Act, the respondent/defendant No. 1 was entitled to surrender the tenancy.

IN THE HIGH COURT OF DELHI

RSA 146/2005

Decided On: 09.05.2020

 Gauri Shankar Vs.  Rakesh Kumar and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1023/2020

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Delhi HC: Suit for recovery of immovable property used exclusively in trade or commerce and for other incidental reliefs is maintainable before Commercial courts Act

“Definitions.-(1) In this Act, unless the context otherwise requires-

(c) “commercial dispute” means a dispute arising out of-

(vii) agreements relating to immoveable property used exclusively in trade or commerce;

Explanation.-A commercial dispute shall not cease to be a commercial dispute merely because-

(a) It also involves action for recovery of immoveable property or for realisation of monies out of immoveable property given as security or involves any other relief pertaining to immoveable property;

11. Clause (c) defines the “commercial dispute” in the Act to mean a dispute arising out of different sub-clauses. The expression “arising out of” in the context of clause (vii) refers to an agreement in relation to an immoveable property. The expressions “arising out of” and “in relation to immoveable property”1 have to be given their natural and general contours. These are wide and expansive expressions and are not to be given a narrow and restricted meaning. The expressions would include all matters relating to all agreements in connection with immoveable properties. The immoveable property should form the dominant purpose of the agreement out of which the dispute arises. There is another significant stipulation in clause (vii) relating to immoveable property, i.e., the property should be used exclusively in trade or commerce. The natural and grammatical meaning of clause (vii) is that all disputes arising out of agreements relating to immoveable property when the immoveable property is exclusively used for trade and commerce would qualify as a commercial dispute. The immoveable property must be used exclusively for trade or business and it is not material whether renting of immoveable property was the trade or business activity carried on by the landlord. Use of the property as for trade and business is determinative. Properties which are not exclusively used for trade or commerce would be excluded.

18. Lease of immoveable property is dealt with under the Transfer of Property Act in Chapter V thereof. The said enactment vide section 105 defines what is lease, lessor, lessee and rent and vide section 107 stipulates how leases are made and can be terminated. Leases can be both oral or in writing. Noticeably, sub-clause (vii) to clause (c) in Section 2 of the Act does not qualify the word “agreements” as referring to only written agreements. It would include oral agreements as well. The provisions of the Transfer of Property Act deal with the effect of non-payment of rent, effect of holding over and most importantly the determination of the leases or their termination. It cannot be disputed that action for recovery of immoveable property would be covered under sub-clause (vii) to clause (c) when the immoveable property is exclusively used in trade or commerce. Read in this manner, we do not think that claim for recovery of rent or mesne profit, security deposit etc., relating to immoveable property which was used exclusively in trade or commerce should not be treated as a commercial dispute in view of the language, ambit and scope of sub-clause (vii) to clause (c) to Section 2 of the Act. These would qualify and have to be regarded as commercial disputes. The use of expression“any other relief pertaining to immoveable property” would mean disputes relating to breach of agreement and damages payable on account of breach of agreement would be covered under sub-clause (vii) to clause (c) to Section 2 of the Act when it is arising out of agreement relating to immoveable property exclusively used in trade and commerce.

In the High Court of Delhi at New Delhi

(Before Sanjiv Khanna and A.K. Chawla, JJ.)

Jagmohan Behl  v.  State Bank of Indore 

FAO (OS) No. 166/2016

Decided on September 22, 2017, 

Citation: 2017 SCC OnLine Del 10706

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Supreme Court: Procedure which court should follow for trying eviction suit filed under the provisions of transfer of property Act

Eviction suit under Rent Control Act - Jurisdiction of

Rent Controller/Court under Rent Control Act - Eviction decree - Existence of landlord-tenant relationship between

parties sine qua non for grant of, where eviction suit is filed under Rent Control Act - Hence enquiry in such suit should

be limited to existence of landlord-tenant relationship - If such relationship is found to be not existing, eviction suit is liable

to be dismissed - Question of plaintiff's title based on his purchase of suit property or adverse possession thereof by

defendant is beyond scope of enquiry in eviction suit under Rent Control Act - However, question of title can be

considered incidentally, but only to ascertain bona fides of denial of plaintiff's title by defendant - Jurisdiction under Rent

Control Act to try eviction suit is limited to grounds specified therein only, except where alternative remedy is permissible

thereunder - Position is different where eviction suit is filed under Transfer of Property Act, in which case civil court can

grant equitable relief under Or. 7 R. 7 CPC on basis of title of plaintiff even in absence of landlord-tenant relationship -

On facts held, plaintiff having failed to establish landlord-tenant relationship, defendant not liable for eviction - However,

trial court's finding that defendant had perfected his title by adverse possession was beyond its jurisdiction and High

Court also erred in affirming trial court's judgment to that extent - Under these circumstances, plaintiff entitled to file fresh

suit for recovery of possession.

On a seemly analysis of the principle stated in the aforesaid authorities, it is quite vivid that there is a difference in exercise of jurisdiction when the civil court deals with a lis relating to eviction brought before it under the provisions of Transfer of Property Act and under any special enactment pertaining to eviction on specified grounds. Needless to say, this Court has cautiously added that if alternative relief is permissible within the ambit of the Act, the position would be different. That apart, the Court can decide the issue of title if a tenant disputes the same and the only purpose is to see whether the denial of title of the landlord by the tenant is bona fide in the circumstances of the case. We respectfully concur with the aforesaid view and we have no hesitation in holding that the dictum laid down in Bhagwati Prasad (supra) and Bishwanath Agarwalla (supra) are distinguishable, for in the said cases the suits were filed under the Transfer of Property Act where the equitable relief under Order VII Rule 7 could be granted.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10316 of 2013

Decided On: 13.11.2013

Tribhuvanshankar  Vs.  Amrutlal

Hon'ble Judges/Coram:

Anil R. Dave and Dipak Misra, JJ.

Citation: (2014) 2 SCC 788

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Important Notes on Transfer of property Act

1) NOTES ON LEASES OF IMMOVABLE PROPERTY

https://www.lawweb.in/2018/06/notes-on-leases-of-immovable-property.html

2) NOTES ON PART PERFORMANCE(S 53A OF TRANSFER OF PROPERTY ACT)

https://www.lawweb.in/2018/06/notes-on-part-performances-53a-of.html

3) Good article on subrogation( Transfer of property Act)

https://www.lawweb.in/2018/05/good-article-on-subrogation.html

4) Good legal article on Lis pendens( S 52 of Transfer of Property Act)

https://www.lawweb.in/2018/05/good-legal-article-on-lis-pendens.html

5)NOTES ON GIFT ( S 122-129 of Transfer of property Act)

https://www.lawweb.in/2018/06/notes-on-gift.html

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Whether eviction suit filed by unregistered partnership firm is maintainable?

Contention was raised that the suit was not maintainable since the same was filed by an unregistered firm. Repelling the contention court took the view that a suit for eviction is maintainable by an unregistered firm as such a suit is not a suit to enforce an agreement but a right therefor accrues to a landlord by reason of the provisions of the statute namely Rent Act. We are in agreement with the Patna High Court that the right of a landlord to determine a tenancy. arises under a statute, namely, Transfer of Property Act and later by Rent. Act. The Bombay High Court in Kajaria Traders (India) Ltd. v. Foreign Imports and Exports Association. MANU/MH/0013/1961 : AIR 1961 Bom 65 held that the right to make an application under section 8 of the Arbitration Act for appointment of an arbitrator or arbitrators is a statutory right and not arising from a contract, though it is not conferred in connection with a contract. Landlord is not enforcing his right arising from a contract, but seeking eviction on the basis of the provisions of the Rent Act which is a statutory right, therefore section 69(2) would not be a bar if a petition is filed by the unregistered firm as a landlord. The petition filed by an unregistered firm for eviction is therefore maintainable.

IN THE HIGH COURT OF KERALA

CRP. No. 606 of 1997 (D)

Decided On: 18.03.2004

 Dungarsi Ranchhodas  Vs.  Moolji Visanji

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Pius C. Kuriakose, JJ.

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Whether occupant of structure would be entitled to claim tenancy in respect of land underneath structure?

Before adverting to their contentions in detail, it must be borne in mind that the creation of tenancy is a matter governed by the provisions of Transfer of Property Act, 1882 and not by the Rent Act. It has been held by the Apex Court in Raizada Topandas and another v. M/s. Gorakhram Gokalchand, MANU/SC/0227/1963 : [1964]3SCR214 that the Rent Act does not create tenancy which is a matter of contract. Creation of tenancy must be established by a contract between the lessors (the plaintiffs) and the obstructionists in the present case. There has to be a privity of contract between the plaintiffs and the obstructionists. If there is no privity of contract between the landlord and the sub-lessees and where the landlord is the owner of the plot which has been let out to the lessee, who erects the structures and is the owner of the said structures and inducts licensees or sub-lessees the law recognises no independent right in the licensee or sub-lessee qua the landlord of the plot of land.

The Division Bench decision of this Court in S.R. Shetty's case make it clear that it would be almost impossible to accept the suggestion that the occupant of the structure would be entitled to claim tenancy in respect of the land underneath the structure. This would be all the more impossible where, in a multi-storied building, there are several tenants, one sitting on top of another and it would be impossible by any amount of ingenuity observed the Division Bench, for any Court to say on what portion of land, a particular occupant of the structure is a sub-tenant qua the land. There is thus no substance in the second contention of the petitioners.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2014, 2047, 2048, 2066 & 2093 of 1991

Decided On: 12.10.1999

Decided On: 13.10.1998

Ramkrishna Girishchandra Dode  Vs. Anand Govind Kelkar and Ors.

Hon'ble Judges/Coram:

A.V. Savant, J.

 Citation : AIR 1999 Bom 89

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Whether provisions of Maharashtra rent control Act is applicable if open space is given on lease with permission to make construction on it?

Appellant/defendant was inducted as tenant vide registered lease-deed dated 21st December, 1970 in the land bearing Survey No. 182, 182-A, C.T.S. No. 5923 to 5951 admeasuring 2086.04 sq.mtrs. ('Suit Property' for short). The lease was of open land and the lessee was permitted to raise construction with a rider that upon expiry of lease period, he shall remove construction at his own cost. Lease period was for 30 years, which came to end on 31st December, 2000. 

Thus, taking into consideration facts of the case and the law laid down by the Apex Court as well as by this Court in aforesaid two cases and for the reasons stated here-in-above, suit property was not "Premises" within the meaning of Section 7(9) of the Maharashtra Rent Control Act, 1999 and, therefore, suit for eviction filed under the general law of the Transfer of Property Act, 1882 was maintainable and as such, provisions of the Maharashtra Rent Control Act were not applicable as the lease in question was for open plot. 

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 638 of 2014

Decided On: 03.05.2019

 Narendra Harilal Jethwa  Vs.  Bholadasji Mandir and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(6) MHLJ 885

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Under which law eviction suit is to be filed if open plot was let out on which saw mill was constructed?

It is pertinent to note that the definition of expression 'premises' given in the Act clearly indicates that the Act is not applicable to open lands and it applies to the buildings and structures and parts thereof used as separate premises for residence, education, business, trade or storage. However, the Rent Control Order applied to open lands also but by virtue of provisions of Section 58 of the Act, the said Rent Control Order has been repealed and by virtue of the provisions of Section 46 of the Act, the Rent Control Order is applicable only to the suits or proceedings pending on the date of commencement of the Act. Admittedly, on the date of commencement of the Act, no suit or proceeding for eviction of the defendant from the suit premises was pending and, therefore, in my opinion, it is the Transfer of Property Act which would govern the field and would be applicable to the matter in question and as such, the notice to quit issued by the plaintiffs to the defendant under Section 106 of Transfer of Property Act determining his tenancy without obtaining prior permission of the Rent Controller cannot be said to be illegal or invalid and, therefore, in my opinion, the learned trial Judge has rightly held so. I, therefore, find no substance in the contentions canvassed by the learned Counsel for the applicant in this regard.

Bombay High Court

Gangdas S/O Moujibhai Patel vs Harshvardhan S/O Balkrushna ... on 14 October, 2002

Equivalent citations: 2003 (4) BomCR 712, 2003 (1) MhLj 203

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Whether lessee can seek protection of Maharashtra rent control Act if construction was to be removed after expiry of lease period?

 On the date of expiry of the lease period, i.e. on 31st December, 2003, the Rent Control Legislations were not in force as the same was repealed by provisions of Section 58(1)(b) of Maharashtra Rent Control Act, 1999 with effect from 31st March, 2000. In the given set of facts, the learned Judge has held thus;

"It is not in dispute that the leases in respect of open land are not governed by the provisions of the Maharashtra Rent Control Act Hence, the only remedy available was to file a suit invoking the ordinary jurisdiction of a Civil Court for eviction of tenant and for possession under the general law of the Transfer of Property Act, and neither the provisions of the Rent Control Legislations, nor the provisions of the Maharashtra Rent Control Act were applicable, as the lease in question was for the open land."

19. Thus, taking into consideration facts of the case and the law laid down by the Apex Court as well as by this Court in aforesaid two cases and for the reasons stated here-in-above, suit property was not "Premises" within the meaning of Section 7(9) of the Maharashtra Rent Control Act, 1999 and, therefore, suit for eviction filed under the general law of the Transfer of Property Act, 1882 was maintainable and as such, provisions of the Maharashtra Rent Control Act were not applicable as the lease in question was for open plot. Questions are answered accordingly.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 638 of 2014

Decided On: 03.05.2019

Narendra Harilal Jethwa Vs. Bholadasji Mandir and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: AIR 2019(NOC) 648 Bom

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Whether second suit filed under Transfer of property Act is to be stayed if first suit under rent Act is pending?

 I am fortified in my view by a decision of this Court in R.E. Fanibunda v. Nicholas of India Ltd. reported in 2003 (3) All 967 wherein this Court has explained what is the ratio of the decision of the Supreme Court in the case of Ambalal Sarabhai Enterprises Ltd. supra. In that case a landlord had filed a suit for eviction of a tenant on 9th June, 1977 on the ground of reasonable and bonafide requirement under the provisions of the Bombay Rent Act. The trial Court decreed the suit by a judgment dated 12th July, 1990 and the appellate Court set aside the decree. The appellate judgment was challenged by the landlord by filing a Writ Petition. During the pendency of the writ petition, the landlord filed another suit for eviction under the general law - Transfer of Property Act- as by then the provisions of Bombay Rent Act, 1947 had been repealed and the provisions of the Maharashtra Rent Act were not applicable to the tenant being a public limited company with a paid up capital of more than rupees one crore. At the hearing of the writ petition challenging the judgment of the appellate Court rendered under the provisions of the Bombay Rent Act, an objection was raised to the maintainability of the petition on the ground that the landlord had filed another suit under the general law and therefore the Writ Petition could not be continued. Relying upon the decision of the Supreme Court in Ambalal Sarabhai Enterprises v. Amrutlal (supra) it was contended that the landlord cannot pursue two parallel proceedings for the same reliefs. Negativing the objection, the court held that though the relief of possession claimed in both the suits was the same the causes of action for the two suits was entirely different. The cause of action for possession in the first suit was existence of a ground for eviction under the Bombay Rent Act while the cause of action for the second suit under the general law was only termination of the tenancy either by efflux of time or by notice. Existence of a ground under the Bombay Rent Act was not necessary for the second suit under the general law. The learned Judge therefore held that the two proceedings were not parallel as they were based on different cause of action and therefore there was no question of choosing between the two parallel proceedings. In Ambalal Sarabhai's case the Supreme Court has observed that a litigant cannot be permitted to take recourse to two parallel proceedings. In other words, two proceedings which are not parallel are permitted. This Court held that the two proceedings one for eviction under the provisions of the Bombay Rent Act and the other under the general law - Transfer of Property Act filed after repeal of the Bombay Rent Act were not parallel and were allowed to be continued and proceeded with simultaneously.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 58 of 2004

Decided On: 06.07.2004

 Godrej and Boyce Mfg. Co. Ltd.  Vs. Sridhar Jagannath Nerurkar

Hon'ble Judges/Coram:

D.G. Karnik, J.

 Citations: 2005 (1) BomCR 839, 2005 (1) MhLj 1097,2005(1) ALLMR 128

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Whether disputes arising out of Transfer of property Act can be referred to arbitration?

It may be noticed that none of the provisions of the Transfer of Property Act have been noticed by this judgment. In fact, none of the aforesaid provisions would indicate that disputes under the said Act are triable only by the civil court and not by arbitration, as has been held in this paragraph. It is clear that the Transfer of Property Act is silent on arbitrability, and does not negate arbitrability.

22. In a similar situation, this Court, in Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan and Ors. MANU/SC/0359/1999 : (1999) 5 SCC 651, held that when it came to the grant of specific performance, there is no prohibition in the Specific Relief Act that issues relating to specific performance cannot be referred to arbitration, unlike the English statute [see paragraph 34].

23. Equally, merely because a discretion had to be exercised by the court on whether or not to grant specific performance, would not militate against specific performance being granted [see paragraph 44, in particular, of Booz Allen (supra)]. It is clear, therefore, that the judgment in Himangni Enterprises (supra) will require a relook by a Bench of three Hon'ble Judges of this Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2402 of 2019 

Decided On: 28.02.2019

Vidya Drolia  Vs.  Durga Trading Corporation

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Vineet Saran, JJ.

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Whether condition mentioned in allotment letter of land is binding on purchaser after execution of sale deed?

 We do not find any merit in any of the aforesaid arguments. In the first instance, it needs to be emphasised that there is no such condition of completion of construction within a period of two years in the sale deed. Such a condition was only in the allotment letter. However, after the said allotment, the Appellant-Corporation not only received entire consideration but executed the sale deeds as well. In the sale deeds no such condition was stipulated. Therefore, the High Court is right in holding that after the sale of the property by the Appellant-Corporation to the Respondents, whereby the Respondents acquired absolute marketable title to the property, the Appellant-Corporation had no right to insist on the conditions mentioned in the allotment letter, which cease to have any effect after the execution of the sale deed.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3020, 2995, 2994,of 2018

Decided On: 10.04.2018

 The Andhra Pradesh Industrial Infrastructure Corporation Limited 

Vs.

 S.N. Raj Kumar and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: 2019(1) MHLJ 587

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NOTES ON GIFT ( S 122-129 of Transfer of property Act)

(S 122-129 OF TRANSFER OF PROPERTY ACT)

Gift defined ( S 122)

A gift is the transfer:

- of certain existing movable or immovable property,

-made 1) voluntarily,and

2)without consideration,

- by one person called the donor to another called the donee,and

- accepted by or on behalf of donee.

Such acceptance must be made during the life-time of donor,and while he is still capable of giving. If the donee dies before acceptance,the gift is void.

Gift how effected( S 123)

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NOTES ON LEASES OF IMMOVABLE PROPERTY

(S 105-117 OF TRANSFER OF PROPERTY ACT

Definition( S.105)

A lease of immovable property is a transfer of a right to enjoy such property for a certain time,or in perpetuity,in consideration of price paid or promised or money,a share of crop, service or any other thing of value to be rendered periodically or on specified occasions, to the transferor by transferee,who accepts the transfer on such terms.

In the case of a lease, the price is called the premium,and the money,share,service or other thing to be rendered is called the rent;the transferor is called the lessor,and the transferee is called the lessee.

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NOTES ON PART PERFORMANCE(S 53A OF TRANSFER OF PROPERTY ACT)

Requisite of this doctrine:-

1) There should be a contract to transfer for consideration,any immovable property by a writing signed by transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.

The Orissa high court has held that if parties execute an unregistered sale deed without prior permission of competent authority,the transaction is void,and benefit of S 53A can not be claimed.(Sadhu meher v Rajkumar patel AIR 1994 Orissa 26).

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