Bombay High Court
Dr. Prem Prakash vs Neetu Dharamveer Bhatia on 14 June, 1994
Equivalent citations: 1995(3)BOMCR530, (1994)96BOMLR212, 1995 A I H C 3167, (1995) 4 CURCC 5, (1995) 1 MAH LJ 869, (1995) 3 BOM CR 530
JUDGMENT S.M. Jhunjhunuwala, J.
1. By this petition, the petitioner seeks leave under Clause XII of the Letters Patent to sue the respondent in this Court.
2. The respondent having acquired shop bearing No. 21-B on the ground floor of the property known as 'Kamanwala Nagar 1' situate at Village Bolinge, Taluka Vasai, District Thane Agashi Road, Virar (for short, 'the said shop') on what is popularly known as 'ownership basis' agreed to sell the said shop to the petitioner for the consideration and on the terms and conditions contained in the Agreement dated 15th October, 1992 entered into by and between the petitioner and the respondent at Bombay (for short, 'the said agreement'). Clauses 5 and 7 of the said agreement, which are relevant for the purpose of this petition, read as under :--
"5. At the time of completion of sale, the Vendor shall against the payment of the said balance purchase price, execute duly stamped sale deed or other documents in favour of the purchaser or his nominee or nominees or such deeds, documents and writings as are necessary for affectuating the said transfer in favour of the purchaser or his nominee or nominees."
"7. The Vendor shall deliver to the purchaser or his nominees the vacant possession of the said shop till the time of completion of the sale."
3. According to the petitioner, the petitioner has at all times been and is still ready and willing to perform the said agreement but the respondent has failed to perform obligations thereunder. After calling upon the respondent to complete the sale of the said shop in favour of the petitioner in accordance with the terms and conditions of the said agreement, the petitioner intends to file the present suit against the respondent in this Court for Order and decree directing the respondent to specifically perform the said agreement and for the said purpose, has lodged the plaint in the office of this Court. The relevant prayers in the plaint are as under :--
"(a) that it be declared by this Honourable Court that the Agreement dated 15th October, 1992 being Exhibit A hereto is still valid and subsisting and the defendant is bound and liable to perform the same;
(b) that the defendant be ordered and decreed to specifically perform the said agreement dated 15th October, 1992 being Exhibit 'A' hereto in favour of the plaintiff and consequently be ordered and decreed to --
i) Transfer all right, title and interest of the defendant in Shop No. 21-B situated at Village Bolinge, Taluka Vasai, District Thane, Agashi Road, Virar in favour of the plaintiff;
ii) hand over quiet, vacant and peaceful possession of the said Shop No. 21-B situated at Village Bolinge, Taluka Vasai, District Thane, Agashi Road, Virar to the plaintiff;"
In paragraph 8 of the plaint, the petitioner has stated as under :--
"8. The plaintiff states that the aforesaid agreement dated 15th October, 1992 being Exhibit 'A' was entered into at Bombay. The said shop is situated at Virar. The defendant resides in Bombay. The defendant is bound and liable to perform the said agreement in Bombay. A material part of the cause of action has thus arisen within the jurisdiction of this Honourable Court. This Honourable Court has therefore with leave under Clause XII of the Letters Patent being granted, jurisdiction to entertain and try this suit."
4. It is in these circumstances, the petitioner has applied for leave under Clause XII of the Letters Patent to sue the respondent in this Court.
5. Mr. Vora, the learned Advocate for the respondent has objected to the grant of leave under Clause XII of the Letters Patent to the petitioner to sue the respondent in this Court. Mr. Vora has submitted that the said shop is admittedly situate outside the Ordinary Original Civil Jurisdiction of this Court and the suit to enforce the said agreement to sell the said shop being 'a suit for land' within the meaning of Clause XII of Letters Patent, leave sought by the petitioner cannot be granted. In support of his submission that the intended suit is 'suit for land', Mr. Vora has put reliance on the following cases:
(i) Moolji Jaitha & Co. v. Khandesh Spinning & Weaving Mills Co. Ltd., reported in A.I.R. 1950 F.C. 83;
(ii) Shibkumar Banerjee v. Rasul Bux, ; and
(iii) (In the matter of D. Muthukumaraswamy alias Rajakumar by Power of attorney agent M.S. Dakshinamoorthy)3, reported in 1970 Madras Law Journal, 328.
6. Mr. Makhija, the learned Counsel appearing for the petitioner has submitted that the intended suit being for specific performance of the said agreement is not a 'suit for land' within the meaning of Clause XII of the Letters Patent and despite the said shop being situate outside the Ordinary Original Civil Jurisdiction of this Court, since the said agreement was entered into at Bombay and the respondent who resides in Bombay is liable to perform the said agreement in Bombay, the material part of cause of action has arisen within the jurisdiction of this Court and on leave under Clause XII of the Letters Patent to sue the respondent being granted, this Court shall have jurisdiction to entertain and try the suit. In support of his submission, Mr. Makhija has put reliance on the following cases:
(i) Nagendra Nath Chawdhari v. Eraligool Company Ltd., reported in A.I.R. 1922 Calcutta 443;
(ii) Jasraj Fooaji v. Akubai and others, reported in A.I.R. 1924 Bombay 419;
(iii) Prahlad Madhoba Ruikar & others v. Aboobaker Abdul Rehman & Co., reported in A.I.R. 1936 Bombay 313, and
(iv) Debendra Nath Chowdhary v. Southern Bank Ltd., .
7. Under Clause XII of the Letters Patent, this Court in exercise of its Ordinary Original Civil Jurisdiction is 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 is situated, or in all other cases if the cause of action has arisen, either wholly, or, in case the leave of this Court is first obtained, in part, within the local limits of the Ordinary Original Jurisdiction of this Court, or if the defendant at the time of commencement of the suit dwells or carries on business, or personally works for gain within such limits. 'A suit for land' within the meaning of this clause is a suit substantially for land, that is, for the purpose of acquiring title to or possession of land or for declaring any interest in land. If natural meaning is given to the words in this clause, the present intended suit where the petitioner claims a decree for specific performance of the said agreement with alternative claim for damages can not be said to be 'a suit for land'. It would be suit for enforcing the said agreement to sell the said shop to the petitioner where this Court would be required to act only in personam, the cause of action for such specific performance being not the cause of action for recovery of possession of the said shop as such and the fact that recovery of possession of the said shop by the petitioner may be the consequence of granting specific performance of the said agreement is immaterial for the purpose of jurisdiction as the cause of action for specific performance of the said agreement is the breach thereof by the respondent and not titular or possessory claim for the said shop.
In the case of Nagendra Nath Chawdhuri v. Eraligool Company Ltd., (supra) it was vendors' suit for specific performance and in alternative for damages of an agreement made in Calcutta to sell a tea estate in Assam, the agreed price under which had also to be paid in Calcutta. The Division Bench of the Calcutta High Court has held :
"The words in Clause 12, if we give to them their natural meaning, in my judgment, cannot be said to cover this suit, which is a suit for specific performance of the agreement, which was made in Calcutta, and to recover a sum of Rs. 88,000/- odd said to be due from the defendant to the plaintiffs by reason of that agreement."
In the case of Prahlad Madhoba Ruikar & others v. Aboobaker Abdul Rehman & Co., (supra), the mortgaged property was situate outside then British India and defendants 1 to 5 also resided outside then British India. But the mortgage was executed in Bombay. It was a suit to enforce mortgage filed in this Court. Rangnekar, J., held :--
"This is a suit to enforce a mortgage which, under the ruling in 51 Bom. 516 which is binding on this Court, is not a suit for land, but a suit in personam to recover a debt."
Even in the case of Jasraj Fooaji v. Akubai & others, (supra) Shah, J., of this Court has held that suit by a mortgagee against property outside the jurisdiction and against the mortgagors living outside the jurisdiction could be tried by this Court in its Ordinary Original Civil Jurisdiction. The Division Bench of the Calcutta High Court in the case of Debendra Nath Chowdhury v. Southern Bank Ltd., (supra) deciding appeal from the judgment of learned Single Judge dismissing the plaintiff's suit for specific performance of an agreement to grant a sub-lease of fire-clay lands situate outside the jurisdiction of that Court, held that a suit where the plaintiff claims a decree for specific performance only, directing the defendant to execute and register a lease with alternative claims for damages is not a suit for land within the meaning of Clause XII of the Letters Patent. In that case, the cases of Moolji Jaitha & Co. v. Khandesh Spinning & Weaving Mills Co. Ltd., (supra) and Shib Kumar Banerjee v. Rasul Bux, (supra) on which reliance has been placed by Mr. Vora have amongst other cases been considered. Kania, C.J., in the case of Moolji Jaitha and Co. v. Khandesh Spg. and Wvg. Co. Ltd., observed that the test for determining whether a suit is a suit for land within Clause XII of the Letters Patent is, whether taking the suit as a whole, it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different and involves the consideration of the question of title to land indirectly. It was made clear that the equitable principle on which English Courts have granted reliefs to litigants in respect of lands situate outside the jurisdiction of the Court are applicable to the High Courts in the Ordinary Original Civil Jurisdiction. Kania, C.J., held that approaching the question in the light of these equitable principles, the plaintiff there was entitled to ask the Court to act in personam and direct the defendant to execute a conveyance in favour of the plaintiff. Kania, C.J., even observed that the addition of a prayer for declaration of title did not alter the nature of the suit for specific performance or oust the jurisdiction of the Court to act in personam. The ratio of the Federal Court decision is therefore clear that a suit for specific performance in equity jurisdiction where at any rate the only relief sought is the execution of a document of transfer and nothing else is not a suit for land within the meaning of Clause XII of the Letters Patent.
In the case of Shib Kumar Bannerjee, (supra) Mallick, J., of Calcutta High Court held that where the agreement embodies two fold obligations undertaken by the vendor defendant, namely not merely to execute a proper sale deed but to give possession as well but what is sought to be enforced in the suit is the agreement to execute a sale deed only and not the agreement to give possession, and the material prayers in the plaint are :
(1) specific performance of the agreement, (2) execution of conveyance by the defendant;
(3) delivery by the defendant of the other title deeds, the suit as framed is not a suit for land within Clause XII of the Letters Patent. In the case of D. Muthukumaraswamy, (supra), the Madras High Court while deciding the competency of Originating Summons held that since the grant of approval involved a decision that the applicant was entitled to deal with the immovable property situate outside the jurisdiction of the Court and such a decision involved a consideration of the title to the said property, the decision on merits would indirectly affect the title to the said property and hence the Court had no jurisdiction to entertain the said proceeding.
The main and substantial relief sought in the suit intended to be filed is the execution of conveyance by the respondent in favour of the petitioner in respect of the said shop in performance of the said agreement. The claim for transfer of title in respect of the said shop and delivery of possession thereof as specifically stated in prayer (b) itself are only consequential. The cause of action in the intended suit for specific performance of the said agreement to execute a conveyance in favour of the petitioner is not a cause of action for possession of the said shop. Possession of the said shop only is consequential and the right to the same arises by virtue of execution of conveyance conveying the said shop by the respondent unto the petitioner and not before. The intended suit being for enforcing the said agreement where the Court would be required to act only in personam is not 'a suit for land'. The fact that a decree for specific performance, if passed, would result in ultimate possession of the said shop being given or obtained, does not convert it into a 'suit for land'.
In the result, leave under Clause XII of the Letters Patent to sue the respondent is granted.