Calcutta High Court
Kirti Vinimay Pvt. Ltd vs Chemtex Speciality Ltd. & Ors on 8 November, 2017
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
GA No.1701 of 2017
CS No.110 of 2017
KIRTI VINIMAY PVT. LTD.
-Versus-
CHEMTEX SPECIALITY LTD. & ORS.
GA No.2110 of 2017
CS No.110 of 2017
KIRTI VINIMAY PVT. LTD.
-Versus-
CHEMTEX SPECIALITY LTD. & ORS.
For the Petitioner/Plaintiff : Mr. S.N. Mookherjee, Sr. Adv.,
Mr. Sabyasachi Chowdhury, Adv.
For the Defendants/Respondents : Mr. Surojit Nath Mitra, Sr. Adv.,
Mr. Nirmalya Dasgupta, Adv., Mr. Srinanda Bose, Adv., Mr. Pritha Basu, Adv., Mr. Aryaa Chatterjee, Adv.
Hearing Concluded On : 01.11.2017 Judgment On : 8th November, 2017
Soumen Sen, J.:- Both the applications are taken up for hearing and disposed of by this common order.
The defendant Nos.1, 2 and 3 have filed an application being G.A. No.1701 of 2017 for revocation of leave under Clause 12 of the Letters Patent.
Subsequently, the plaintiff has filed an application being G.A. No.2110 of 2017 for amendment of plaint.
The basis of the application for revocation is that the suit is essentially a suit for land and, accordingly, this Court has no territorial jurisdiction to try, receive and adjudicate the claim of the plaintiff.
In order to appreciate the objection raised by the applicant- defendants, it is necessary to consider the nature of the suit and the reliefs claimed in the suit.
By a Memorandum of Understanding (MoU) dated 16th November, 2016, the defendant nos.1, 2 and 3 granted short term financial accommodation to the defendant no.4 for a sum of Rs.3.25 crores. In consideration of the defendants agreeing to grant such loan, the plaintiff had agreed to execute a deed of guarantee and also agreed to create equitable mortgage of its property at Sankrail in the district of Howrah. The said MoU was alleged to have been executed at the office of the defendant no.1 at 33, Brabourne Road, 7th Floor, within the jurisdiction of this Court. The plaintiff as guarantor had mortgaged the said property by depositing the title deeds of the said property with the defendant nos.1, 2 and 3 at the aforesaid office. On 21st April, 2017 the plaintiff received an undated letter written by the defendant nos.1, 2 and 3 at its office at 143, Canning Street, Kolkata- 700 001 within the jurisdiction of this court addressed to the plaintiff and the defendant no.4 alleging that the defendant no.4 had committed default of repayment of a sum of Rs.3.25 crores and, as a consequence whereof, the said defendant nos.1, 2 and 3 are entitled to appoint security guards over the said property and enforce the security interest in the property by conveying the said property in favour of the defendant nos.1, 2 and 3 or their nominees. It was also alleged that the said defendant had executed and registered a deed of conveyance conveying the said property in favour of their nominee, being the defendant no.5 residing at Salt Lake, outside the jurisdiction of this Court for a consideration of Rs.3.25 crores as per the MoU and have taken symbolic possession of the said property. The said conveyance was alleged to have been done by utilizing a registered special power of attorney executed by the plaintiff in favour of one Mr. Narayan Das Bhattar empowering him to sign and execute any deed of sale or conveyance in respect of the said property. In the said communication it was further alleged that while the debts to the extent of the principal amount borrowed by the defendant no. 4 stood discharged, there were other amounts due and payable on account of alleged interest and the plaintiff was asked to immediately give peaceful possession of the said property in default whereof the plaintiff was held liable to pay damages, compensation and other charges.
The plaintiff alleged that even assuming but not admitting that the defendant no. 4 had failed and neglected to pay the principal amount of Rs. 3.25 crores, the plaintiff as guarantor had the right to repay the said amount towards discharge of his obligation and under the MoU redeem the mortgage. The plaintiff was never served with any notice about alleged default committed by the defendant no. 4 and as such was completely unaware of the same. Consequently, the plaintiff also could not exercise its rights and/or obligations as a guarantor as envisaged in the MoU. It was further alleged by the plaintiff that even assuming that there was default on the part of the defendant no. 4, the defendant nos. 1, 2 and 3 could not have enforced the mortgage without giving an opportunity to the plaintiff as the guarantor to redeem the mortgage. The right of the plaintiff to redeem the mortgage has been illegally and wrongfully taken away by the defendant nos. 1, 2 and 3. It is alleged that the purported sale in favour of the defendant no. 5 by the defendant nos. 1, 2 and 3 by utilizing the power of attorney given without any notice to the plaintiff and without following the due course of law is void ab initio and is liable to be declared as such. On the basis of such averments, the plaintiff has prayed for the following reliefs in the suit:-
a) Declaration that the purported sale made by the Deed dated 17th April, 2017 being Annexure "D" hereto, in favour of the Defendant No. 5 towards purported enforcement of rights as a purported Mortgage by the Defendant Nos. 1, 2 and 3 without following the due process of law is void ab initio;
b) The Deed dated 17th April, 2017 being Annexure "D" hereto be adjudged void and be delivered up and cancelled;
c) Perpetual injunction restraining the Defendant Nos. 1, 2 and 3 and the Defendant No. 5 from giving any effect and/or further effect to the purported Deed dated 17th April, 2017 being Annexure "D" hereto and/or claiming any rights and pursuant thereto and/or in furtherance of any terms thereof;
d) Injunction;
e) Receiver;
f) Attachment;
g) Costs;
h) Further or other reliefs.
The plaintiff also had taken out an interlocutory application being GA No. 1673 of 2017 praying, inter alia, for an order of injunction restraining the defendants from giving effect or further effect to the deed of conveyance dated 17th April, 2017. The Court, however, had refused to pass any interim order on 17th May, 2017 on the ground that the plaint does not show that the registered power of attorney holder had acted contrary to the MoU or that the power of attorney in favour of Narayan Das Bhattar has been revoked soon after the plaintiff became aware of such purported sale. This observation has resulted in the plaintiff filing an application for amendment of the plaint being GA No. 2110 of 2017 in which the plaintiff has essentially prayed for addition of Narayan Das Bhattar as defendant no. 6 and has introduced few paragraphs alleging fraud, collusion and connivance between the defendant nos. 1, 2, 3, 5 and 6.
In the application for revocation, the applicants have alleged that the petitioner is virtually and/or substantially seeking reliefs in respect of a landed property situated at Sankrail in the district of Howrah which is admittedly outside the jurisdiction of this Court. The deed of conveyance dated 17th April, 2017 was registered with ADSR, Howrah. It is apparent that the plaintiff was seeking relief in respect of an immovable property situated outside the jurisdiction of this Court. The suit essentially involves an adjudication of questions of title, possession, control and management of land and the property being admittedly situated outside the jurisdiction of this Court, this Court has no territorial jurisdiction to adjudicate the claims. The primary object of the suit is seeking adjudication on the question of title of a land or possession, control or management thereof. With regard to the proposed amendment it is submitted that a completely new cause of action has been introduced by way of amendment inasmuch as the said amendment is not bona fide. Moreover, since the suit is essentially a suit for land, this Court has no jurisdiction to entertain this application for amendment of the plaint as it is elementary that the Court having jurisdiction over the lis can only entertain an application for amendment of the plaint.
Mr. Surajit Nath Mitra, learned Senior Counsel appearing on behalf of the petitioner has referred to a Division Bench judgment of our Court in Mst. Zohra Khatoon Vs. Janab Mohammad Jane Alam and Others reported at AIR 1978 Cal 133 for the proposition that where the Court inherently lacks jurisdiction to entertain a suit, it cannot make any order for amendment to bring the suit within its jurisdiction.
Mr. Mitra has also referred to Hindusthan Gas & Industries Ltd. and Another Vs. Adhish Chandra Sinha reported at AIR 1981 Cal 307, Tridandeeswami Bhakti Kusum Sraman Maharaj and Others Vs. Mayapore Sree Chaitanya Math and Others reported at AIR 1983 Cal 420 and Rashmoy Das Vs. Rajashree Enclave Pvt. Ltd. reported at AIR 2011 Cal 148 to argue that if the primary object of the suit is to seek an adjudication with regard to the rights in relation to an immovable property and the property is situated outside the jurisdiction of this Court, it has been the consistent view of the Courts that the plaint may be returned to the appropriate Court for adjudication. Mr. Mitra submits that the reliefs claimed involve consideration of the question of title to land and any of the reliefs, if granted, would directly affect title to or possession of the land. In the suit the plaintiff is seeking to establish its title to land and possession and control thereof and the decree sought for is for all intents and purposes is enforceable against and binding on the land itself. Mr. Mitra submits that Rashmoy Das (supra) has recognized that a declaration of a deed of conveyance as null and void involves questions relating to title to the property and having regard to the fact that by reason of the deed of conveyance, title had passed to the defendant no. 5, the Court would be required to adjudicate the rights of the respective parties in relation to the land in question. This adjudication of title or possession will render the suit as one for land.
Per contra, Mr. S.N. Mookherjee, the learned Senior Counsel appearing on behalf of the plaintiffs submits that the plaintiff is essentially seeking a declaration in respect of a deed of sale purported to have been executed by Mr. Narayan Das Bhattar in favour of the defendant No.5. In deciding the said issue, it is not necessary to decide the question of title of the plaintiff in relation to the said property as it is an admitted fact that the plaintiff is the owner of the said property and had created mortgage of the said property in favour of the defendant Nos.1,2 and 3 in consideration and said defendants extending the credit facilities to the defendant No.4. If the plaintiff at the trial could establish that the said deed of sale was executed dehors law and thereby affects valuable right of the plaintiff to redeem the mortgage the sale needs to be set aside. It is submitted that in the amendment application Mr. Narayan Das Bhattar is now sought to be impleaded as Mr. Narayan Das Bhattar had acted in derogation of the power given to him. It is submitted that in the application of amendment, the plaintiff has alleged fraud, collusion and connivance of Mr. Narayan Das Bhattar with the other defendants in relation to the said deed of sale.
Mr. Mookherjee submits that the Transfer of Property Act gives a valuable right to the plaintiff to redeem the mortgage inasmuch as there is a contravention of Section 69 of the Transfer of Property Act, 1882 as the deed of sale could not have executed by Mr. Narayan Das Bhattar at the instance of the defendant Nos.1,2 and 3 in favour of the defendant No.5, the said sale is ex facie void. Mr. Mookherjee submits that the plaintiff has alleged collusion of the defendant Nos.1, 2 and 3 with the defendant No.5 in the original plaint and in the proposed amendment further particulars of such fraud have been furnished. The defendant No.6 being the power of attorney holder is proposed to be added as a defendant. In the proposed amendment, the plaintiff has alleged fraud of the defendant No.6 as well. These allegations of the fraud are directed against individuals jointly and it is an action in personam. In deciding the said claim no adjudication of title is involved. Mr. Mookherjee in this regard has referred to a Single Bench judgment of our Court in Sm. Parimal Mitra & Ors. Vs. Paresh Chandra Hazra & Ors. reported at AIR 1982 Cal 361. It is submitted that the plaintiff has clearly stated in the plaint that the plaintiff is in possession of the property and as such has not made any prayer for possession. Accordingly, a suit for delivery up and cancellation of an agreement without any prayer for possession cannot be held to be a suit for land. Reliance is placed in this regard on the Division Bench judgment of our Court in Gloster Limited Vs. Bowreah Jute Mills Pvt. Ltd. & Ors. reported at AIR 2014 Cal
230. Mr. Mookherjee has relied upon Kanthal India Ltd. Vs. Anant Prasad Bhatia & Ors. reported at AIR 1987 Cal 24 to argue that the power of the Court to allow amendment of pleadings under Order 6 Rule 12 is in any way restricted or controlled by Order 7 Rule 11 though a Court may reject the plaint under Order 7 Rule 11(a) of the Code of Civil Procedure, if the plaint which did not disclose any cause of action still the Court has power to allow its amendment so that it would disclose a cause of action.
The decision in Subodh K. Chatterjee VS. Union of India reported at AIR 1960 Cal 540 is also relied upon for the self-same proposition where it has been held that if insertion of words may be allowed in the plaint to show that the plaintiff has a cause of action against the defendant as failure to do so could result in injustice, amendment may be allowed.
In reply, Mr. Mitra submits that in Gloster Ltd. (supra), the plaintiff virtually abandoned its entire claim in relation to immovable properties and restricted its claim to monetary relief only as would appear from the order passed by the Hon'ble Supreme Court in SLP No.29713/2014. It is submitted that Subodh (supra) and Kanthal (supra) do not as such lay down any ratio on the basis of which this Court at this stage can proceed and allow the proposed amendment. Mr. Mitra has reiterated that the original plaint, if read as a whole, would show that the plaintiff is essentially seeking an adjudication of its right, title and interest in relation to an immovable property situated outside the jurisdiction of this Court.
On the basis of the arguments advanced on behalf of the parties, the Court is now required to decide whether the suit as originally framed is a suit for land. Since such a decision would affect the jurisdiction of this Court, I propose to decide the said issue first.
On the issue as to whether the instant suit is a suit for land, I feel, the Court is required to find out the dominant purpose and feature of the plaint. If the primary object and dominant feature of the plaint is an adjudication of a right, title or interest in an immovable property situated outside the jurisdiction of this Court, this Court has no jurisdiction to entertain the said suit. The said tests were applied in Debendra Nath Chwdhury v. Southern Bank Ltd. reported at AIR 1960 Cal 626 and Smt. Saroj Agarwal & Ors. Vs. Mohanlal Seal & Ors. reported at 2003 (2) WBLR (Cal) 42. The said decisions have clearly stated that if from the plaint itself it becomes clear that the primary object of the suit is to establish title to the land and the natural consequence of granting reliefs as prayed for in the plaint is to seek possession of the property in question, such shall be treated as a suit for land. The Hon'ble Justice P.B. Mukherjee who later on became the Chief Justice of this Court with his erudition and inimitable style in Debendranath Chowdhury (supra) laid down the tests to be applied for determining if a suit is suit for land. His Lordship after scanning various case laws on the subject available as on that date held that the primary object of the suit should be the determining factor for this purpose. The land should be the heart, soul and theme of the plaint. The nerve centre of the suit should be the land and others are peripheral. On reading of the plaint, the Court is to ascertain if the suit is for the purpose of obtaining any 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. The equitable principle on which English Courts have granted reliefs to litigation in respect of lands situated outside the jurisdiction of this Court are applicable to the High Courts in the Ordinary Original Civil Jurisdiction. The suit whether would involve determination of a title is also required to be taken into consideration. Following the decisions of the Federal Court in Moolji Jaitha and Co. Vs. Khandesh Spg. And Wvg. Mills Co. Ltd. reported at AIR 1950 FC 83 it was held 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 a suit for land within the meaning of Clause 12 of the Letters Patent. The Hon'ble Division Bench relied upon the Division Bench decision of the Madras High Court which stated that where the plaintiff had obtained in a previous suit a decree against the defendant for specific performance of an agreement to sell certain immoveable property to the plaintiff and had got a sale deed in his favour for execution of the decree a subsequent suit for recovery of possession of his lands would not be barred under Order 2 Rule 2 of the Code of Civil Procedure. The principle of law recognized in Debendra Nath (supra) at Paragraph 23 states:-
"23. The foundation of this Court holding that a suit for specific performance, where the only relief claimed is a decree for execution of a document of transfer and nothing else is not a suit for land, is first the principle that it is a suit for enforcing a contract where the court is required to act only in the personam; secondly, the cause of action for such specific performance is not the cause of action for the recovery of land as such or recovery of possession of land as such and the fact that such will or may be the consequence is immaterial for the purpose; the cause of action for specific performance of a contract and not the cause of action for a titular or possessory claim for land; and thirdly, the context of clause 12 of the Letters Patent in providing three basic tests for suits (i) for land, (ii) cause of action and (iii) place of residence or business of the defendant, - clearly indicates that where Courts are intended to act in equitable jurisdiction in personam it is the second or third test which has to be applied. The fact that a decree for specific performance will result in ultimate possession being given or obtained, does not convert it into a suit for land, for in that case the suit for land would not have been grouped as a class by itself apart from the class governed by the test of the cause of action or the test of the place of residence or place of business of the defendant in Clause 12 of the Letters Patent. Historically, as Fry points out in his celebrated work on Specific Performance, 6th Edition, page 7, the Old common Law before equity intervened to act in personam, so that now a decree for specific performance orders the defendant, or failing him this Court in his place, to execute a document of transfer. In modern jurisprudence and practice, this is now well settled. In Volume X, page 397 of Atkin's Encyclopedia of Forms, the only prayer shown in the pleading is for specific performance and not for possession. Indeed, in the forms of the Civil Procedure Code, both the Forms are used, one for specific performance simpliciter and the other for joint claim for specific performance and possession."
The said view was upheld by the Hon'ble Supreme Court in Adcon Electronics Pvt. Ltd. Vs. Daulat & Anr. reported at 2001 (7) SCC 698. In Paragraph 15 of the said judgment, the Hon'ble Supreme Court held that a suit for land is a suit in which the relief claimed relates to title to or delivery of possession of land or immoveable property. Whether a suit is a suit for land or not has to be determined on the averments made in the plaint with reference to the reliefs claimed therein where the relief relates to adjudication of title to land or immoveable property or delivery of possession of the land or immoveable of property it would be considered as a suit for land. It was held that in its true sense, a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land is not the subject matter of the suit. The view expressed by Justice Mahajan as quoted in Adcon (supra) reads:-
"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.
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." (emphasis supplied) In Adcon (supra) the views of the Division Bench in Debendranath (supra) was approved. It would fruitful at this stage to refer to few paragraphs of Adcon (supra) which are stated below:-
"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. (supra) 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 Moolji Jaitha case." (emphasis supplied) The reading of the original plaint as well as the proposed amendment unmistakably shows that it involves an adjudication with regard to the title and possession of an immovable property situated outside the jurisdiction of this Court. The title of defendant No.5 will be directly affected by the result of the decision in the suit. The defendant No.5 has purchased the property for a valuable consideration. The right to redeem a mortgage by the plaintiff would directly and substantially involve adjudication of right, title and interest in an immovable property. Moreover, a valuable right to possess and enjoy the property as owner on the basis of the deed of sale has accrued in favour of the defendant No.5. The cancellation of the deed will affect the possession of the defendant No.5 either juridical or otherwise. The deed of sale clearly records that the purchaser has accepted peaceful possession from the vendor over the scheduled land and property and shall hereafter peacefully and quietly possess and enjoy the said land and properties as absolute owner thereof. The suit involves an adjudication of the right, title, possession and enjoyment of the immovable property.
In Gloster Limited (supra) which appears to be the sheet anchor of the plaintiff to persuade this Court in accepting that the suit is not a "suit for land", the dispute was with regard to an agreement concerning an immovable property. The reliefs claimed in the plaint are:-
"(a) The purported agreement dated 12th January, 2009 between the defendant no. 1 and the defendant no. 2 with regards to North Mill a copy whereof is contained in Annexure 'C' hereto is wrongful and illegal and the said purported agreement be adjudged null and void and directed to be delivered up and cancelled;
(b) Mandatory injunction directing the defendant nos. 1 and 2 to forthwith restore and reconnect supply of water from the Hooghly river to the plaintiff through the pipe line and the water pump laid on the jetty servicing the North Mill;
(c) Perpetual injunction restraining the defendants either by themselves or through their servants, agents assigns or howsoever otherwise from in any way interfering with the right of the plaintiff to obtain supply of water from Hooghly river through the pipe line and the water pump laid on the jetty servicing the North Mill;
(d) Decree for Rs. 83,44,993.66 against the defendant nos. 1 and 2 as pleaded in paragraph 18 hereinabove;
(e) Interim interest and interest on judgment at the rate of 15% per annum;
(f) An enquiry be made into loss and damage suffered by the plaintiff and a money decree be passed against the defendant no. 2 for such sum as may be found upon such enquiry;"
The Hon'ble Division Bench drawing analogy from Adcon (supra) in Paragraphs 21 and 22 held:-
"21. We have considered the rival contentions of the parties. A 'suit for land' is essentially a suit which involves direct adjudication of title and/or possession in respect of land or other immovable property. If a decree or order passed in a suit indirectly and/or consequentially affects title to and or possession in respect of land, the suit cannot be said to be a 'suit for land'. A suit for specific performance of a contract for sale of immovable property without any prayer for possession has been held to be not a 'suit for land' by our Apex Court in Adcon Electronics Pvt. Ltd (supra), although the decree in the suit may indirectly affect title to the concerned immovable property. By reverse analogy a suit for delivery up and cancellation of an agreement relating to immovable property without any prayer for possession should also not be a 'suit for land' even though the decree in the suit may indirectly or consequentially affect title or possession to land. The Division Bench decision of this Court in the case of Debendra Nath Chowdhury (AIR 1960 Cal 626) (supra) also lends support to this view.
22. In view of the aforesaid, with the deepest regard we have for the learned Judge, we are unable to agree with His Lordship that in spite of plaintiff/appellant having given up prayers (b) and (c) of the plaint, prayer (a) of the plaint would still make the suit a 'suit for land'. The appeal succeeds. The judgment and order impugned is set aside. The plaintiff will be at liberty to proceed with its suit shorn of prayers (b) and (c) of the plaint."
In a Special Leave Petition preferred by Bowreah Jute Mills Pvt. Ltd. (supra) the plaintiff gave up prayer (a) of the plaint and the suit was directed to proceed in respect of prayer (d), (e) and (f) of the plaint. The order of the Hon'ble Supreme Court passed on July 7, 2017 reads:-
"Mr. Jaideep Gupta, learned Senior Counsel appearing for the respondents, very fairly made a statement at the outset that Respondent No.1 (plaintiff) does not wish to prosecute on merits the reliefs contained in paragraph 39(a)(b)(c) of the plaint in C.S. No.41 of 2010 filed an pending before the High Court, whereas Respondent No.1 (plaintiff) wishes to prosecute on merits only the reliefs contained in paragraph 39(d) (e) and (f). In other words, now in the light of the statement made by Mr. Gupta, the suit filed by Respondent No.1 would be tried on its merits only in relation to reliefs claimed in paragraph 39(d) (e) and (f) of the plaint.
In the light of the above statement, this Special Leave Petition is disposed of with a request to the High Court to decide the suit on merits confirming its adjudication to prayer 39(d) (e) and (f). The petitioner (defendant) is granted eight weeks' time to file written statement in answer to the claim of the plaintiff in relation to paragraph 39(d) (e) and (f).
Pending interlocutory applications, if any, stand disposed of."
In Rashmoy Das (supra) a suit seeking declaration for cancellation of a deed of sale was held to be a suit for land. The relevant observations are:-
"9. The Deed of Conveyance dated 28th May, 2008 deals with premises P-82, Lake Road, Calcutta (said premises). By the said Deed of Conveyance the vendors (the defendants) who were possessed, seized and entitled to part, sold their share to third parties. The purchaser (defendant no.1) by virtue of the said Deed is possessed of the said premises and entitled to its enjoyment. The relief sought in C.S. 144 of 2008 is -
a) Declaration that the deed of conveyance dated 28th May, 2008 executed by and between the Defendant Nos.3 to 5 and the Defendant No.1 is null and void;
b) Perpetual injunction do issue restraining the defendants either by themselves or through their servants, agents, assigns from taking any steps and/or exercising any rights pursuant to and in terms of the deed of conveyance dated 28th May, 2008.
10. In the event the relief is granted, the said would entail cancellation of the Deed of Conveyance and, therefore, deprive the purchaser therein of possession and enjoyment of the premises. It would also amount to handing over possession of the said premises and as held in AIR 1982 Cal. 361 where adjudication of title or possession is in issue, will render the suit as one for land.
11. By the second schedule all the right, title and interest of the vendors has been transferred to the purchaser and cancellation will deprive the purchaser of the same, therefore, questions of title will be in issue.
12. As cancellation will entail adjudication of title and possession C.S. 144 of 2008 is a suit for land and this Court lacks jurisdiction to entertain or try the said suit. The tests applied in AIR 1983 Cal 420 aids the petitioner-defendants and not the respondent.
13. The cases cited by the plaintiff-respondent is not applicable to the facts of this case as in (2007) 1 CLT 656 the complaint was restricted to breach of obligation arising out of contract. In the instant case invasion or threatened invasion of the plaintiff- respondent's right to enjoyment of the premises by virtue of the Deed of Conveyance has been pleaded. It will not be out of place to mention that in the said decision it has also been held that declaration of title is required when a particular person's right is denied by the defendants as in the instant case.
14. The execution of the Deed of Conveyance will affect the petitioner- defendant's share in the premises outside the jurisdiction, therefore, AIR 1950 Cal 510 will not apply to the facts of this case.
15. AIR 1960 Cal 626 is distinguishable on facts as it was a case where simpliciter specific performance of agreement was sought without seeking possession. In the instant case, cancellation sought will require adjudication of Title and will affect the possessory right of the petitioner-defendant more so in view of prayer (b) of the Plaint. Clause (iii) of the Deed of Conveyance dated 28- 05-2008 entitles the respondent-defendant to quietly possess and enjoy the premises. On cancellation of the Deed the respondent-defendant will be deprived of such possession and enjoyment."
I am in agreement with the view expressed in Rashmoy Das (supra). In the instant matter the Court has no jurisdiction over the subject matter of the dispute.
On such considerations, the application filed by the defendants for revocation of leave under Clause 12 of the Letters Patent being G.A. No.1701 of 2017 is allowed. The plaint is directed to be taken off the file and returned to the plaintiff for presentation before the appropriate Court.
In view of the aforesaid order, the application for amendment of the plaint being G.A. No.2110 of 2017 cannot be considered due to lack of jurisdiction. On such considerations, the said application is dismissed. However, it is made clear that the merits of the said application have not been gone into and it would be open for the plaintiff to seek self-same relief before the appropriate forum.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)