Calcutta High Court
Nilgiri Estates Private Limited vs Khaniva Housing (India) Private Ltd. on 31 January, 1997
Equivalent citations: (1997)2CALLT290(HC)
Author: Barin Ghosh
Bench: Barin Ghosh
ORDER Barin Ghosh, J.
1. This is an application for return of the plaint filed in the above suit to the plaintiff. In this suit the plaintiff Is seeking decree for specific performance of the Memorandum of understanding dated 30th August, 1990 and in the alternative an enquiry into the damages suffered by the plaintiff and decree for the sum found due thereon.
2. By the subject Memorandum of understanding, which is in writing, the defendant, described therein as assignor, agreed to assign in favour of the plaintiff, described therein as assignee, the perpetual lease-hold right of the defendant in respect of premises No. 8/2, Palm Avenue, Calcutta-700019, which premises is situate outside the Jurisdiction of this court. The said Memorandum of understanding provides. Inter alia, the following clauses:-
"The Assignee, his nominee or nominees will be entitled to use and utilise the portion assigned or part thereof as he/they may choose or like without any need for any consent from the Assignor or the Head Lessor or the Superior Landlord and the Assignee his nominee or nominees shall always be entitled to demolish, alter and to erect and build any structure or building of any description that the Assignee his nominee or nominees may lawfully choose and shall enjoy the benefits thereof including the power to further assign without any need for any consent and/or injunction from the Assignor or the Head Lessor or the Superior landlord."
"The Assignee, his nominee or nominees will be entitled to mutate their names in the Calcutta Municipal Corporation or with any other Authorities."
"The Assignee, his nominee or nominees will be entitled to demolish, alter erect and build any structures and building of any description that he/they may lawfully choose and get necessary sanction of plan of such bullding/s from the Calcutta Municipal Corporation without any consent and/or any objection from the Assingnor or the Head lessor or the Superior Landlord and shall enjoy all benefits thereof including the right to further assign the lease hold right."
"As a gesture of goodwill the Assignor has agreed to help the assignee without any obligation for obtaining vacant possession of the said premises at extra cost to the Assignee, his nominee or nominees, as the case may be, at the time of execution and registration of the Deed of Assignment."
3. In paragraph 6 of the plaint filed in the above suit, it has been alleged:
"The said premises is being possessed and/or occupied by several trespassers and/or occupiers without any right, title and interest therein and the possession of such trespassers and occupiers are illegal and wrongful".
And in paragraph 19 of the plaint it was contended:-
"The plaintiff has not claimed any relief regarding possession of premises No. 8/2, Palm Avenue, Calcutta-700019 in the present suit. The plaintiff prays for leave of this court under Order 2, Rule 2 of the Code of Civil Procedure, 1908 for instituting appropriate legal proceeding in appropriate forum."
4. For the reasons recorded in my Judgment delivered today, in UCO Bank v. Sm. Ratni Devi Jain and Ors. (Suit No. 451 of 1991) I hold that this suit is also a suit for land since the primary object of the suit is to acquire a right to use and utilise the property being the subject matter of the Memorandum of understanding with authority to demolish alter and to erect and build any structure or building of any description on the property in question and to enjoy benefits thereof and to compel the defendant to help the plaintiff, without any obligation, for obtaining vacant possession of the property in question, at extra cost, at the time of execution and registration of the Deed of assignment.
5. As the records revealed, the defendant has already instituted a suit for recession of the Memorandum of understanding in the court in whose Jurisdiction the land is situate. That suit was instituted earlier in point of time. Instead of filing a counter-claim in that suit or instituting a proper suit in that court, the plaintiff has instituted the present suit in a court which has no jurisdiction over the land and in which suit, by seeking specific performance, the plaintiff is seeking to establish his right flowing from the Mamorandum of understanding, specific performance whereof has been sought for, to erect and build on the land without the intervention of the defendant. If the suit is decreed that would tantamount to a direction of the court as against the defendant not to interfere with the right of the plaintiff to erect or build on the land situate wholly outside the jurisdiction of this court. What cannot be done directly, i.e. issuing a direction not to interfere with the right of a person to erect upon a land situate outside the jurisdiction of the court that cannot also be done by indirectly, i.e. decreeing a suit for specific performance by which itself the court approves the terms between the parties and thereby issues a direction not to interfere the right of construction and building on a land situate outside the jurisdiction of the court.
6. In that view of the matter, the application of the defendants is allowed. Let the plaint filed in the instant suit be returned to the plaintiff for being presented in the appropriate court within whose jurisdiction the tangible immovable property, being the subject matter of the contract, is situate. The Registrar, original side, is directed to return the plaint filed in the instant suit to the plaintiff or to its Advocate-on-Record within seven days from the date hereof on a signed copy of the operative portion of this Order. Until then the interim order, passed in the suit continue.
Let the Registrar, original side and all parties act on a signed copy of the operative portion of this order upon usual undertaking and let a signed xerox copy of this dictated order be made available to the parties on their usual undertaking.
Stay prayed for is refused