Delhi High Court
Mrs. Bhawna Seth vs Dlf Universal Limited And Anr. on 19 February, 2007
Equivalent citations: AIR2007DELHI189, 138(2007)DLT639, AIR 2007 DELHI 189, 2007 (5) ALL LJ NOC 776, 2007 (5) AKAR (NOC) 645 (DEL), 2007 A I H C (NOC) 450 (DEL), (2007) 138 DLT 639
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The plaintiff has filed a suit for specific performance of the Agreement dated 15.9.1987 entered into with the defendants in respect of space No. 149, The Shopping Mall, DLF Qutab Enclave Complex, Gurgaon. It is the case of the plaintiff that the plaintiff paid the initial amounts but subsequently the defendants arbitrarily increased the covered area and sought further amounts from the plaintiff, which was in violation of the Agreement. The disputes between the parties resulted in the defendant ultimately issuing a letter dated 2.5.1997 informing the plaintiff that the space has been cancelled for non-payment of dues by the plaintiff but the Agreement could be restored if the full amount claimed along with the holding charges were paid. Since the disputes did not get resolved the suit was filed. The prayer made in the suit is as under:
It is, therefore, respectfully prayed that this Hon'bel Court may be pleased to pass a decree in favor of the plaintiff and against the defendant, directing the defendant to execute the sale deed in respect of property No. 149, "The Shopping Mall", DLF Qutab Enclave, Gurgaon, in favor of the plaintiff.
2. Defendant No. 1 has contested the suit on various grounds. The defense on the merits is that the plaintiff has failed to pay the amounts under the Agreement. It has also been stated that the same was conveyed to M/s. Apollo Land & Housing Finance Limited, defendant No. 2. One of the preliminary objections raised is of lack of territorial jurisdiction to try the present suit since the property is situated in Gurgaon and defendant No. 2 has a registered office also in Gurgaon, Haryana.
3. On the pleadings of the parties, issues were framed on 17.1.2007 and issue No. 6 was directed to be treated as preliminary issue, which reads as under:
6. Whether the suit is barred on account of territorial jurisdiction? OPD
4. Learned Counsels for the parties have put forth their respective case in respect of the aforesaid.
5. Insofar as the factual matrix of the case is concerned it is not in dispute that the Agreement between the parties has Clause 50, which reads as under:
50. That the High Court of Delhi at New Delhi or Courts subordinate to it, alone shall have jurisdiction in all matters arising out of, touching and/or concerning this transaction.
6. Thus the pre-formatted Agreement in the printed form of defendant No. 1 itself contains a Clause conferring jurisdiction on this Court. In paragraph 16 of the plaint, which is the paragraph dealing with the territorial jurisdiction, the following has been stated:
16. That the plaintiff resides within the jurisdiction of this Hon'ble Court and the defendant also has its office at Parliament Street, New Delhi and, therefore, this Hon'ble Court has the jurisdiction to entertain and adjudicate upon the present suit. Even otherwise also as per Clause 50 of the agreement, this Hon'ble Court has jurisdiction to entertain and adjudicate upon the present suit.
7. Learned Counsel for the defendants contends that the aforesaid Clause 50 would not confer jurisdiction on the Courts in Delhi since the settled legal position is that jurisdiction by consent can be conferred only on a Court where some cause of action arises and which is one of the Courts which may have jurisdiction. Thus, by consent the jurisdiction cannot be conferred on a Court which has no jurisdiction at all. Learned Counsel has referred in extensio to the judgment of the Apex Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr. which is against the same defendants and the prayer clause sought the relief of declaration of a valid and existing contract in respect of a plot located in DLF, Qutab Enclave Complex in Gurgaon. A decree for specific performance, a decree for permanent injunction and a decree for delivery of possession of the plot was sought. A preliminary issue had been framed about the jurisdiction of the Delhi Civil Courts and the trial court held that the Delhi courts would have no jurisdiction to try the suit. The revision petition filed before the Delhi High Court was also dismissed which gave rise to the Special leave Petition. The Agreement between the parties contained a similar clause as in the present case.
8. The Supreme Court considered the effect of Section 16 & 20 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) which read as under:
16. Suits to be instituted where subject-matter situate, subject to the pecuniary or other limitations prescribed: suits,
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resider, or carries on business, or personally works for gain.
...
20. Other suits to be instituted where defendants reside or cause of action arises, Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
9. In view of the aforesaid provisions the question which was framed was that as to which court the suit for specific performance of Agreement relating to immovable property would lie. It would be useful to reproduce the observations of the Supreme Court:
16. Section 16 thus recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate. A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment. Proviso to Section 16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on well known maxim "equity acts in personam", recognized by Chancery Courts in England. Equity Courts had jurisdiction to entertain certain suits respecting immovable properties situated abroad through personal obedience of the defendant. The principle on which the maxim was based was that courts could grant relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam, i.e. by arrest of defendant or by attachment of his property.
17. In Ewing v. Ewing (1883) 9 AC 34 : 53 LJ Ch 435, Lord Selborne observed:
The Courts of Equity in England are, and always have been, courts of conscience operating in personam and not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts in trusts as to subjects which were not either locally or ratione domicilli within their jurisdiction. They have done so, as to land, in Scotland, in Ireland, in the Colonies, in foreign countries.
18. The proviso is thus an exception to the main part of the section which in our considered opinion, cannot be interpreted or construed to enlarge the scope of the principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be obtained by personal obedience of the defendant.
19. In the instant case, the proviso has no application. The relief sought by the plaintiff is for specific performance of agreement respecting immovable property by directing the defendant No. 1 to execute sale-deed in favor of the plaintiff and to deliver possession to him. The trial court was, therefore, right in holding that the suit was covered by Clause (d) of Section 16 of the Code and the proviso had no application.
20. In our opinion, the submission of the learned Counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of the transaction has also no force. Such a provision, in our opinion, would apply to those cases where two or more courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one court.
21. Plain reading of Section 20 of the Code leaves no room of doubt that it is a residuary provision and covers those cases not falling within the limitations of Sections 15 to 19. The opening words of the section "Subject to the limitations aforesaid" are significant and make it abundantly clear that the section takes within its sweep all personal actions. A suit falling under Section 20 thus may be instituted in a court within whose jurisdiction the defendant resides, or carries on business, or personally works for gain or cause of action wholly or partly arises.
22. It is, no doubt true, as submitted by Ms. Malhotra that where two or more courts have jurisdiction to entertain a suit, parties may by agreement submit to the jurisdiction of one court to the exclusion of the other court or courts. Such agreement is not hit by Section 28 of the Contract Act, 1872, nor such a contract can be said to be against public policy. It is legal, valid and enforceable.
23. Before more than thirty years, such question came up for consideration before this Court in Hakam Singh v. Gamon (India) Ltd. . It was the first leading decision of this Court on the point. There, a contract was entered into by the parties for construction of work. An agreement provided that notwithstanding where the work was to be executed, the contract 'shall be deemed to have been entered into at Bombay' and Bombay Court 'alone shall have jurisdiction to adjudicate' the dispute between the parties. The question before this Court was whether the court at Bombay alone had jurisdiction to resolve such dispute.
24. Upholding the contention and considering the provisions of the Code as also of the Contract Act, this Court stated:
By Clause 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the city of Bombay. In any event the respondents have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the courts of Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding on agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.
25. Hakam Singh was followed and principle laid down therein reiterated in several cases thereafter. (See Globe Transport Corporation v. Triveni Engineering Works and Anr. , A.B.C. Laminart (P) Ltd. and Anr. v. A.P. Agency, Salem , Patel Roadways Ltd., Bombay v. Prasad Trading Co. , R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd. , Angile Insulations v. Devy Ashmore India Ltd. and Anr. , Shriram City Union Finance Corporation Ltd. v. Rama Mishra , New Moga Transport Co. v. United India Insurance Co. Ltd. and Ors. .
26. The question, however, is whether Delhi Court has jurisdiction in the matter. If the answer to that question is in the affirmative, the contention of the plaintiff must be upheld that since Delhi Court has also jurisdiction to entertain the suit and parties by an agreement had submitted to the jurisdiction of that court, the case is covered by Section 20 of the Code and in view of the choice of forum, the plaintiff can be compelled to approach that court as per the agreement even if other court has jurisdiction. If, on the other hand, the contention of the defendant is accepted and it is held that the case is covered by Section 16 of the Code and the proviso to Section 16 has no application, nor Section 20 would apply as a residuary clause and Delhi Court has no jurisdiction in the matter, the order impugned in the present appeal cannot be said to be contrary to law. As we have already indicated, the suit relates to specific performance of an agreement of immovable property and for possession of plot. It is, therefore, covered by the main part of Section 16. Neither proviso to Section 16 would get attracted nor Section 20 (residuary provision) would apply and hence Delhi Court lacks inherent jurisdiction to entertain, deal with and decide the cause.
10. Learned Counsel for the defendants thus submits that the aforesaid discussion leaves no manner of doubt that since the suit has been filed for specific performance and the property is situated in Gurgaon, in view of provisions of Section 16 of the said Code, Delhi courts will have no jurisdiction as neither the proviso to Section 16 nor Section 20 of the said Code would have any application to the present case.
11. Learned Counsel for the defendants also sought to derive strength from three judgments of the learned single Judges of this Court (as they then were). In the first case of Sheela Agarwal v. Infocom Digital Systems Ltd. it was held that since the suit for specific performance had raised a bonafide contest between the parties regarding possession of the property even though the relief for possession was not specifically prayed for, the suit was not one only for specific performance of Agreement to Sell but essentially one for possession and thus the Delhi courts would have no jurisdiction.
12. The second judgment referred to by learned Counsel for the defendants is the case of Uttam International v. Jogender Pal Singh it was held while discussing the scope and ambit of Section 22 of the Specific Relief Act, 1963 (hereinafter referred to as the SR Act) that where a decree for specific performance of a contract is sought and the relief makes it clear that there is also delivery of possession of suit property prayed for by seeking directions against the defendant to take all necessary steps for transfer of the industrial plot in question in favor of the plaintiff, the court is empowered to grant a decree for possession of immovable property besides the relief for specific performance. It was thus held that the relief of possession was inherent in the relief of specific performance. Since the property was situated in Sahibabad, Uttar Pradesh, it was held that in view of the provisions of Section 16 of the said Code, the Delhi courts would not have territorial jurisdiction in the matter.
13. The last judgment referred to is in the case of Anil Verman v. Raheja Developers Private Limited once again holding that a relief for possession is inherent in the relief for specific performance of Contract for Sale under Section 22 of the SR Act. Since the property was situated in Nainital, Uttar Pradesh it was held that Delhi courts would not have territorial jurisdiction.
14. Learned Counsel for the plaintiff, on the other hand, referred to the judgment of the Supreme Court in Adcon Electronics Pvt. Ltd. v. Daulat and Anr. . The said judgment has discussed the scope and ambit of Section 22 of the SR Act.
15. The question posed by the Supreme Court for examination was as to whether the suit simpliciter for specific performance of Contract for Sale of immovable property is a suit for land? This in turn gave rise to the question as to what is meant by suit for land. The different judgments rendered in this behalf were discussed by the Supreme Court and the relevant paragraphs read as under:
12. In His Highness Shrimant Maharaj Yashvantrav Holkar of Indore v. Dada Bhai Cursetji Ashburner 1890 (14) I.L.R. Bombay 353 a Division Bench of the Bombay High Court held that a suit for specific performance would not fall within the meaning of that expression. There the suit was filed for specific performance of an agreement to mortgage certain immovable property. The agreement was made in Bombay between the parties on January 8, 1883. The Divisional Court held, it had jurisdiction and granted decree. On appeal a Division Bench referred to an earlier judgment of that court in Yenkoba Balset Kasar v. Rambhaji 9 Bombay H.C.Rep.13 which laid down that suit for land was a suit which asked for delivery of land to the plaintiff. The High Court also referred to the view of the Calcutta High Court in The Delhi and London Bank v. Wordie I.L.R., 1 Calcutta 249 at p.263 construing that expression to mean, substantially for land -- that is for the purpose of acquiring title to, or control over, land. It also noticed the view of a learned single Judge of the Calcutta High Court in Sreenath Roy v. Cally Doss Ghose I.L.R. (5) Calcutta 82 holding that the court had no jurisdiction to make a decree in a suit for specific performance. The Division Bench of the Bombay High Court held that the suit was within the jurisdiction whether regarded as a suit for specific performance or to enforce equitable mortgage by deposit of title deeds as a court of equity in England could entertain it.
13. In Moolji Jaitha and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd. A.I.R. (37) 1950 Federal Court 83, there is divergence of opinion among the learned Judges of five-Judge Bench of the Federal Court in regard to the import of the expression suit for land. Chief Justice Kania opined, Taking the suit as a whole, one has to consider whether 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 but involves the consideration of the question of title to land indirectly. Justice Fazl Ali observed, If I had really felt that I was called upon to decide it, I would have agreed with the line of cases in which it has been held that, broadly speaking, the expression suit for land covers the following three classes of suits : (1) suits for the determination of title to land; (2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land. Justice Patanjali Sastri took the view, The words in question, besides obviously covering claims for recovery of possession or control of land, are apt to connote also suit which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein. Justice Mahajan observed, If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. I therefore content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression. He added, In my opinion, if the suit is for specific performance and a decree for possession of the land sold is claimed, such a suit would certainly be a suit for land; but if the suit is simpliciter for specific performance, i.e., for the enforcement of the contract of sale and for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for determination of title to land or that the decree in it would operate on the land. In that view he expressed his agreement with the decision of the Full Bench of the Madras High Court in Velliappa Chettiar v. Govinda Doss AIR (16) 1929 Madras 721 F.B. Justice Mukherjea perceived, It seems to me fairly clear that the expression suit for land occurring in Clause 12, Letters Patent, means a suit which is instituted with the object of establishing claims regarding title to the property or possession of it. Whether or not possession is claimed, if title to any immovable property is to be directly affected by the result of the decision, the suit would be a suit for land.
14. In Debendra Nath Chowdhury v. Southern Bank Ltd. a Division Bench of the Calcutta High Court took the view that the suit for specific performance of the contract to execute and register a lease with alternative claims for damages is not a suit for land within the meaning of Clause 12 of the Letters Patent.
15. From the above discussion it follows that a suit for land is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a suit for land or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a suit for land. We are in respectful agreement with the view expressed by Mahajan.J. in M/s.Moolji Jaithas case (supra).
16. In a suit for specific performance of contract for sale of immovable property containing stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs:
22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for -
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused.
(2) No relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as my be just for including a claim for such relief.
17. It may be seen that Sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in Clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of Sub-section (2) of Section 22 is that no relief under Clauses (a) and (b) of Sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.
18. In the instant case the suit is for specific performance of agreement for sale of the suit property wherein relief of delivery of the suit property has not been specifically claimed as such it cannot be treated as a suit for land.
16. Learned Counsel, thus, submits that this judgment has not been taken note of by the Supreme Court while delivering the judgment in Harshad Chiman Lal Modi case (supra). Learned Counsel submits that in any case the judgments are both by a bench of two Hon'ble Judges of the Supreme Court. The distinction made in Adcon Electronics Pvt. Ltd. case (supra) in respect of a suit for specific performance simpliciter and a suit where possession of property is also claimed is not subject matter of adjudication in the present case. Learned Counsel points out that the reliefs in the plaint in Harshad Chiman Lal Modi case (supra) specifically prayed for relief of possession while the same is absent in the present case. Learned Counsel also points out that the three judgments referred to of this Court by the learned Counsel for the defendants were prior to the legal position as it emerged in Adcon Electronics Pvt. Ltd. case (supra) and thus the view expressed therein cannot be said to be good law after the judgment in Adcon Electronics Pvt. Ltd. case (supra).
17. Learned Counsel also points out that a learned single Judge of this Court in Rohit Kochhar v. Vipul Infrastructure Developers Ltd. 122 (2005) DLT 480 has taken note of the various judgments to come to the conclusion that in view of what has been held in Adcon Electronics Pvt. Ltd. case (supra), unless possession of immovable property is specifically prayed for, suit could be instituted within the local limits of the court having jurisdiction where defendant resides, carries on business or personally works for gain. A vendee may be happy to gain title to immovable property at pains of vendor having lost title and since possession was pursuant to title, labelled as unauthorised occupant, if after execution of sale deed and possession being required to be delivered, refuses to do so; the vendor is liable to pay damages/mesne profits for unauthorised occupation. The learned Judge also observed that Order 2 Rule 2 of the said Code would not operate against the plaintiffs since the said provisions are aimed against the multiplicity of suits in respect of the same cause of action and thus complete identity of cause of action and various reliefs flowing there from has not to be confused with various causes of action which may accrue under the same transaction.
18. Learned Counsel also referred to the judgment of the learned single Judge of this Court (as he then was) in Sidharth Choudhary v. Mahamaya General Finance where it was held that where only directions have to be issued to the defendants to execute the Sale Deeds in respect of the suit property in favor of the plaintiff and to get the same registered the relief can be obtained through personal obedience of defendants who are carrying on business within the local limits of jurisdiction of court and thus in view of the proviso of Section 16, the Delhi Courts would have territorial jurisdiction.
19. Learned Counsel for the plaintiff submits that in the present case no relief for possession is asked for nor is the plaintiff is going to claim any relief for possession and would reserve her rights to file a separate suit, if need be at a later stage.
20. On consideration of the aforesaid judgments, I am of the view, that there can be no doubt that where in a suit for specific performance possession is also claimed as a relief, the competent court to deal with the matter is the court where the property is located in view of Section 16 of the said Code. the judgment in Harshad Chiman Lal Modi case (supra) clearly lays down the said proposition. However, what cannot be lost sight of is that the judgment is in the facts of the case where the relief of possession was specifically claimed. The question as to what would happen where the relief for possession is not claimed does not form subject matter of a relief in Harshad Chiman Lal Modi case (supra).
21. The three judgments referred to by learned Counsel for the defendants of this Court in Sheela Agarwal case (supra); M/s. Uttam International case (supra) & Anil Verman case (supra) propounded the legal position that even where relief of possession is not prayed for in a suit for specific performance the said relief is intrinsic to the relief for specific performance and thus if the plaintiff is not in possession of the suit property and seeks specific performance the suit can be filed only within the jurisdiction of the Court where the property is situated. However, all the three judgments are prior to the pronouncement by the Apex Court in Adcon Electronics Pvt. Ltd. case (supra) which is by a bench of two Hon'ble Judges of the Supreme Court as is the position in Harshad Chiman Lal Modi case (supra). However, a reading of the two judgments show that they operate in a different factual matrix.
22. M/s. Adcon Electronics Pvt. Ltd. case (supra) deals with the distinction in a case simpliciter for specific performance as against a case where possession is also prayed. This issue is not discussed in Harshad Chiman Lal Modi case (supra) nor has the judgment in Adcon Electronics Pvt. Ltd. case (supra) been apparently cited in the proceedings in Harshad Chiman Lal Modi case (supra). Thus, both the judgments would operate in their respective areas. M/s. Adcon Electronics Pvt. Ltd. case (supra) clearly sets down that in a suit for simpliciter specific performance the same does not amount to a suit for land. If it is a simpliciter suit for specific performance, i.e. for enforcement of Contract for Sale and for execution of sale, in that event there can be no good ground for holding that such a suit is for determination of title to the land or that the decree in it would operate on the land. The observations made in the judgment in Moolji Jaitha & Co. v. The Khandesh Spinning & Weaving Mills Co. Ltd. referred to in the said judgment being a judgment of the Federal Court was approved by the Supreme Court, as noted in paragraph 15 of the Adcon Electronics Pvt. Ltd. case (supra). Thus a distinction has been carved out in respect of a suit where no possession has been claimed of the land in question.
23. The relief prayed for in the present suit is not for possession. Not only that the counsel for the plaintiff categorically stated during the submissions that in the present suit the plaintiff will not press for the relief for possession but reserves the right to file a separate suit if need be at a later stage. Learned Counsel drew strength from the observations made by the learned single Judge of this Court in Rohit Kochhar case (supra) which discussed the ramifications of the judgment of the Supreme Court. The payments in the present case have all been made at Delhi to the Delhi office of defendant No. 1.
24. Learned Counsel for the defendants, however, stated that a fresh suit would not be maintainable in view of Order 2 Rule 2 of the said Code despite the observations in Rohit Kochhar case (supra). I am of the view that this aspect is not required to be gone into in the present proceedings since if such an eventuality arises and a fresh suit is filed by the plaintiff it will be for that court to examine whether the subsequent suit is barred by Order 2 Rule 2 of the said Code. It would suffice to say that the plaintiff is at present not claiming the relief of possession and that aspect is specifically confirmed by the learned Counsel for the plaintiff during the course of the arguments.
25. I am thus of the view that since the plaintiff is not claiming possession of the suit property and has specifically stated so and the relief is confined to specific performance of the Agreement in question without the relief of possession, the judgment in Adcon Electronics Pvt. Ltd. case (supra) would squarely apply to the facts of the present case and thus this Court would have territorial jurisdiction to try and entertain the present suit. The issue is accordingly answered in favor of the plaintiff and against the defendants.
26. In view of the aforesaid, the remaining issues have to be tried.
27. The parties to file their additional documents and list of witnesses within fifteen days. Plaintiff to file the affidavits of evidence within six weeks. The Joint Registrar is appointed as the Local Commissioner to record evidence. On completion of evidence of the plaintiff, the defendants are permitted to file their affidavits of examination-in-chief. On completion of trial list before the Court.
28. List before the Joint Registrar for admission/denial of documents and directions regarding trial on 5.4.2007.