Madras High Court
M/S.Bollineni Developers Ltd vs Page No.1/29 on 23 January, 2017
Author: R. Subbiah
Bench: R. Subbiah
O.S.A.No.3 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 16.03.2020
Judgment Delivered on : 21.08.2020
CORAM :
THE HONOURABLE MR.JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE R.PONGIAPPAN
Original Side Appeal No.3 of 2020
and
Civil Miscellaneous Petition No.409 of 2020
---
M/s.Bollineni Developers Ltd.,
Registered Office at 6-2-913/914,
5th Floor, Progressive Towers,
Khairatabad, Hyderabad-500 004
and
Branch Office at
New No.87, Old No.36,
Poes Gardens,
Chennai-600 086,
Represented by its Chairman B.Krishnaiah .. Appellant
Versus
Page No.1/29
http://www.judis.nic.in
O.S.A.No.3 of 2020
1. K.Sailendra Kumar
2. K.Kamala
3. Naresh Mehta
4. Mr.R.Chandrasekaran .. Respondents
Original Side Appeal filed under Order XXXVI Rule 9 of the
Original Side Rules of the Madras High Court, read with Clause 15 of the
Letters Patent against the order and decretal order, dated 23.01.2017 passed
by the learned Single Judge in Application No.5805 of 2013 in C.S.No.256
of 2013 on the file of this Court.
For Appellant : Mr.R.Thiagarajan
For Respondents : Mr.K.V.Babu for RR-1 to 3
Mrs.R.Hemalatha for R-4
JUDGMENT
R. SUBBIAH, J This Original Side Appeal (OSA) is filed as against the order and decretal order dated 23.01.2017 passed in Application No.5805 of 2013 in C.S.No.256 of 2013 by the learned Single Judge of this Court, in dismissing the said application which was filed by the appellant/second defendant to revoke the leave granted in favour of the respondents 1 to 3/plaintiffs in Page No.2/29 http://www.judis.nic.in O.S.A.No.3 of 2020 Application No.1700 of 2013, dated 09.04.2013 to file the suit for specific performance before the Original Side of this Court.
2. In the said suit filed in C.S.No.256 of 2013, the appellant herein is arrayed as second defendant; the fourth respondent herein is arrayed as the first defendant and the respondents 1 to 3 are the plaintiffs. The said suit was filed for the following reliefs:
(a) to direct the first defendant to execute and register the sale deed(s) in favour of the plaintiffs, free from all encumbrance, on the date to be fixed by this Court and in the event of default, the Assistant Registrar (O.S), High Court of Judicature at Madras, to execute the sale deed(s) in respect of the suit schedule property, in favour of the plaintiffs or their nominee or nominees or in the alternative, direct the first defendant to refund the advance sale consideration of Rs.3,47,25,000/-
together with interest at the rate of 24% per annum from the date of plaint till the date of realisation and to award compensation and damages that may be fixed by this Court,
(b) to grant a permanent injunction restraining the first defendant, his men, agents, servants or anyone claiming any right either under or through him from in any manner alienating or encumbering the suit schedule property in any manner, in favour of any third parties, and
(c) to award costs of the suit.
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3. Though the appellant was shown as the second defendant, no relief was claimed in the suit as against him. Further, during the hearing of the present appeal, the learned counsel appearing for the respondents 1 and 2/plaintiffs made an endorsement on the Memorandum of Grounds of Appeal that he is not pressing the prayer (b) made in the suit, namely with regard to the permanent injunction. In the above background, we will deal with the issue involved in this appeal.
4. For the sake of convenience, the parties herein will be referred to as per their ranking in the suit as plaintiffs and defendants.
5. As per the plaint averments, the first plaintiff is carrying on business in export of garments. Apart from that, he is also a Builder and also deals with the purchase and selling of lands. The second plaintiff is the wife of the first plaintiff. The third plaintiff is a leading Jeweller in the city of Chennai. The first defendant is the owner of the suit schedule property(ies). The first plaintiff negotiated with the first defendant who was also willing to sell the lands, and hence, an agreement for sale, dated 30.06.2008 was entered into between the plaintiffs and the first defendant for purchase of Page No.4/29 http://www.judis.nic.in O.S.A.No.3 of 2020 suit schedule mentioned land for Rs.4 crores being the total sale consideration, free from all encumbrances. On signing the said agreement for sale, the plaintiffs have paid advance amount of Rs.24,50,000/- and the balance was agreed to be paid within 12 months from the said date and on registration of the sale deed in favour of the plaintiffs and/or their nominees.
5.1: As per Clause 4 of the said agreement for sale, dated 30.06.2008, in the event of the purchasers paying Rs.1,50,00,000/- of sale advance, the vendor agrees to hand over the possession along with all the original title deeds relating to the schedule mentioned agricultural land(s) to the purchasers. Accordingly, on 04.08.2008, on receipt of the further sale consideration of Rs.1.28 crores, the first defendant had handed over all the original title deeds along with the vacant possession of the suit schedule mentioned property to the plaintiffs, since, on that date, including the earlier advance sum of Rs.24,50,000/- paid, the total advance sale consideration paid by the plaintiffs to the first defendant was much more than what was agreed under Clause 4 of the said agreement for sale. Eversince then, the plaintiffs have been in absolute uninterrupted peaceful possession and enjoyment of the suit property(ies) holding possession of the same in tact Page No.5/29 http://www.judis.nic.in O.S.A.No.3 of 2020 till this date.
5.2: In all, the plaintiffs have paid to the first defendant a total sum of Rs.3,47,25,000/- by making various payments from 30.06.2008 to 23.03.2012. The plaintiffs wanted to pay the balance sale consideration and complete the registration of the suit property. But the first defendant was postponing the same. During the first week of July 2009, when the plaintiffs met the first defendant in person, to their utter shock and dismay, the first defendant informed the plaintiffs about the pendency of certain arbitration proceedings before this Court initiated by the second defendant against the first defendant. In fact, till such time, even though the first defendant has received Rs.2,83,50,000/- as per the sale consideration, he did not even bother to inform the plaintiffs the prior understanding the first defendant had with the second defendant, nor the pendency of any dispute including the arbitration proceedings before this Court.
5.3: Having parted with huge advance sale consideration and the possession having been handed over to the plaintiffs by the first defendant, the plaintiffs requested for settlement of the dispute between the first and second defendants at the earliest and have the balance sale consideration Page No.6/29 http://www.judis.nic.in O.S.A.No.3 of 2020 received to execute the sale deed. The first defendant agreed for the same and sought for some time to negotiate with the second defendant and also further wanted some more payments to settle the litigation and clear the clout over the suit schedule mentioned property, and hence, the plaintiffs had parted with further sale consideration even after July 2009 to the first defendant.
5.4: On enquiry, the plaintiffs have come to know through their counsel that the first defendant had entered into a Memorandum of Understanding (MoU) with the second defendant on 31.03.2007, agreeing to procure 250 acres of land in and around Sriperumbudur Village. It was agreed that on procurement of lands, necessary consideration towards the cost of land would be settled, besides payment of other charges to the first defendant by the second defendant. Subsequently, due to difference of opinion between the first and second defendants, the matter was referred to arbitration by this Court on the application filed under Section 9 of the Arbitration and Conciliation Act, in which a retired Judge of this Court was appointed as Arbitrator to resolve the dispute between the first and second defendants. While appointing the Arbitrator, this Court passed an order of Page No.7/29 http://www.judis.nic.in O.S.A.No.3 of 2020 interim injunction as well as attachment of all the properties belonging to the first defendant till the entire dues as per the Award is paid or the amounts payable to the second defendant is realised.
5.5: On coming to know of the above proceedings, the plaintiffs have moved this Court in Application No.3552 of 2009 in O.A.No.497 of 2009 and Application No.2181 of 2009 praying for impleading the plaintiffs herein as parties to the arbitration proceedings, and to vacate the order of interim injunction and to raise the order of attachment with regard to the suit property. According to the plaintiffs, the entire transaction between the defendants 1 and 2 is not only collusive, but a clear case of fraud on the plaintiffs herein. The plaintiffs have always been ready and willing to deposit the balance sale consideration before this Court. Hence, the plaintiffs have filed the present suit for the prayers stated supra.
6. Along with the plaint, the plaintiffs have filed Application No.1700 of 2013 before this Court to grant leave to sue the first defendant. The crux of the averments in that application are as follows:
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http://www.judis.nic.in O.S.A.No.3 of 2020 Since the possession of the property had already been handed over to the plaintiffs, they are not seeking possession of the suit property, but only trying to enforce the agreement of sale, dated 30.06.2008. The cause of action for the suit arose within the jurisdiction of this Court when the plaintiffs and the first defendant entered into an agreement for sale, dated 30.06.2008 at Old No.61, New No.136, Greenways Road, Chennai-600 028, for purchase of the suit schedule mentioned property for a sum of Rs.4 crores in Chennai and all the subsequent payments were also made in Chennai. Since the plaintiffs are only seeking to enforce the agreement for sale, dated 30.06.2008 and not against the property which is already in the plaintiffs' possession, the present suit is not the one for land, but only to enforce the contract. Thus, the plaintiffs sought for leave of this Court to sue the first defendant.
7. This Court, on 09.04.2013 in Application No.1700 of 2013, granted leave to the plaintiffs to sue, as prayed for above. On notice, the second defendant-Company, the appellant herein, which had been added as a formal party, has filed an application in A.No.5805 of 2013 in A.No.1700 of 2013 in C.S.No.256 of 2013, seeking to revoke the said leave granted by this Page No.9/29 http://www.judis.nic.in O.S.A.No.3 of 2020 Court to institute the suit. The brief averments of the application to revoke the leave, are as follows:
(a) The suit property was purchased by the first defendant on 13.06.2007 and registered as Document No.14547 of 2007 on the file of the Office of the Sub-Registrar, Sriperumbudur. The first defendant who had purchased the property from the funds provided by the second defendant, instead of purchasing the same in the name of the second defendant-
Company or its group of companies as per Memorandum of Understanding (MoU), dated 31.03.2007, entered into between the first and second defendants, purchased it in his name. Hence, the second defendant had initiated arbitral proceedings in respect of the said MoU, dated 31.03.2007 between the first and second defendants before the Arbitral Tribunal and an Award was passed thereunder in favour of the second defendant. Even before the initiation of arbitration proceedings, the second defendant had initiated proceedings under Section 9 of the Arbitration and Conciliation Act for protection and preservation of the subject matter of the MoU and had also secured an order of interim protection in respect of the properties purchased by the first defendant from and out of the funds provided by the Page No.10/29 http://www.judis.nic.in O.S.A.No.3 of 2020 second defendant.
(b) The plaintiffs are aware of the disputes between the second defendant and the first defendant. The plaintiffs have filed the present suit for enforcement of the contract in respect of the property which is located at Mannur Village, Sriperumbudur Taluk, Kancheepuram District. Admittedly, the property is located outside the jurisdiction of this Court. The agreement of sale dated 30.06.2008 entered into between the first defendant and the plaintiffs, recites that the vendor shall deliver vacant possession of the property at the time of execution of the sale deed on payment of the balance sale consideration. Now, the suit has been filed as though the possession of the property had already been handed over on 04.08.2008 on the basis of the subsequent payment(s) made by the plaintiffs herein. According to the second defendant, the plaintiffs have never been put into possession of the property(ies) pursuant to a valid contract as alleged by the plaintiffs. In fact, the four payments referred to in the agreement of sale, have been manipulated and fabricated after commencement of the arbitration proceedings between the first and second defendants, for the purpose of this case, only in order to show as if the possession was handed over to the Page No.11/29 http://www.judis.nic.in O.S.A.No.3 of 2020 plaintiffs. In any event, even if the person seems to be in possession as per Act 48 of 2001 (The Registration and other related Laws (Amendment) Act, 2001), such agreement is required to be registered, in the absence of possession not been delivered pursuant to the agreement for sale, dated 30.06.2008 and the plea made by the plaintiffs that they are in possession pursuant to the agreement for sale, is per-se, false. The suit itself ought to have been filed for enforcement of contract on or before 29.06.2011, i.e. within three years from the date of agreement, and hence, the suit is barred by limitation. The plaintiffs, who are seeking the relief of specific performance of the contract, in effect, are seeking control over the immovable property which is admittedly located outside the jurisdiction of this Court. Hence, the second defendant is seeking to revoke the leave granted by this Court in A.No.1700 of 2013, dated 09.04.2013.
8. The plaintiffs have filed counter affidavit to the said A.No.5805 of 2013 filed by the second defendant to revoke the leave granted, stating that the application filed by the second defendant to revoke the leave to sue, is a sheer abuse of process of Court. In fact, no relief whatsoever had been sought for against the second defendant. Therefore, the second defendant Page No.12/29 http://www.judis.nic.in O.S.A.No.3 of 2020 has no locus-standi to question about the maintainability of the suit/plaint. The second defendant was made a party to the suit, even though no relief had been sought against him, only for proper adjudication of the suit. The second defendant and the first defendant are colluding with each other and trying to play fraud upon the plaintiffs. The second defendant is attempting to knock away the suit property, of which, the plaintiffs are agreement- holders. If at all there is any dispute between the defendants 1 and 2, only the second defendant-Company has to work out their remedy only as against the first defendant. The agreement for sale dated 30.06.2008 came to be executed only at Chennai at the residence of the first plaintiff and all the payments towards the said transaction have also taken place only at Chennai and thus, the agreement had been entered into well within the jurisdiction of this Court. The suit has been filed only for enforcing the agreement and not possession of the property, which is already with the plaintiffs and therefore, the suit has been rightly laid before this Court, which is maintainable. The first defendant had handed over the possession of the suit property on 04.08.2008 to the plaintiffs subsequent to the signing of the agreement for sale, and therefore, the relief sought for in the present suit is Page No.13/29 http://www.judis.nic.in O.S.A.No.3 of 2020 only to enforce the agreement for sale. Therefore, the suit will not fall under the category of 'suit for land'. The plaintiffs are in possession of the suit property and therefore, they have filed the suit for specific performance directing the defendants to execute the sale deed. Hence, the cause of action for filing the suit is very much within the jurisdiction of this Court and thus, the plaintiffs prayed for dismissing the application filed by the second defendant to revoke the leave granted.
9. The learned Single Judge, after hearing the arguments of both sides, had dismissed the application filed to revoke the leave, holding that the suit has been filed by the plaintiffs only as suit-simpliciter for the relief of executing and registering the suit schedule mentioned property, and therefore, it is not a "suit for land". It is further held by the learned Single Judge that it is the case of the plaintiffs that they have taken over the possession of the property and when the possession is already with them, filing the suit for specific performance to enforce the contract, cannot be construed as the suit for land. It was also observed by the learned Single Judge that only the agreements which are sought to be enforced for the protection available under Section 53-A of the Transfer of Property Act, Page No.14/29 http://www.judis.nic.in O.S.A.No.3 of 2020 alone, are made compulsorily registrable under Section 17(1)(a) of the Indian Registration Act. Therefore, the learned Single Judge observed that such contention of the second defendant that the document is required to be registered, cannot be countenanced. Holding so, the learned Single Judge dismissed the application filed by the second defendant to revoke the leave granted. Aggrieved by the same, the present appeal is filed by the second defendant.
10. During the pendency of the present appeal, at the time of hearing the same, the learned counsel for the plaintiffs have not pressed the prayer made in the plaint in paragraph (b) therein, and also made an endorsement dated 16.03.2020 to that effect on the Memorandum of Grounds of Appeal, as indicated above.
11. The learned counsel for the appellant/second defendant submitted that the suit property is situated at Old No.109, New No.50, Mannur Village, Sriperumbudur Taluk, Kancheepuram District, measuring an extent of 7.52 acres, which falls outside the jurisdiction of this Court. Previously, the appellant/second defendant entered into an MoU with the fourth respondent/first defendant on 31.03.2007, as per which, the first defendant Page No.15/29 http://www.judis.nic.in O.S.A.No.3 of 2020 had agreed to procure 250 acres of land in and around Sriperumbudur Village from and out of the funds provided by the appellant/second defendant. Instead of procuring the property in the name of the second defendant, the first defendant ventured to purchase the property in his name. As a matter of fact, the appellant/second defendant had parted with Rs.100.97 crores with the fourth respondent/D1 for procuring the land in its name. Since the fourth respondent/first defendant had committed breach of the MoU, dated 31.03.2007 entered into between the second defendant and the first defendant, the appellant was constrained to initiate proceedings under Section 9 of the Arbitration and Conciliation Act for protection and preservation of their rights and claims over the property acquired by the first defendant from and out of the funds provided by the appellant/D2. The matter was also referred to arbitration proceedings, and ultimately, it ended in entering a reference and passing a consent preliminary Award, dated 18.12.2011 / 19.12.2011 and subsequently, a supplementary Award also came to be passed on 09.08.2012, and pursuant to the arbitration Award, an Execution Petition in E.P.No.103 of 2013 also came to be filed before this Court for attachment and sale of the identified properties of the first Page No.16/29 http://www.judis.nic.in O.S.A.No.3 of 2020 defendant. Since the properties forming the subject matter of the Execution Petition are scattered in various Districts, namely Chennai, Tiruvallur, Kancheepuram and Villupuram, the Registry of this Court raised a query/doubt with regard to the maintainability of the said Execution Petition before this Court. Since the properties are comprised in different places, with regard to the maintainability of the Execution Petition, the matter was placed before the Court, pursuant to the query/doubt raised by the Registry. Ultimately, the learned Single Judge, before whom the matter was placed, had directed the Registry to number the E.P., and thereafter, it was listed before the learned Master, who had passed the order of attachment of all the properties.
12. The learned counsel for the appellant/D2 further contended that in the meanwhile, the first defendant filed O.P.No.307 of 2013 before this Court to set aside the Award passed by the learned Arbitrator (retired Judge of this Court). This Court stayed the further consequential proceedings before the learned Master, and this Court however directed the first defendant to file an Affidavit of Undertaking that he shall not alienate or deal with the property(ies) or encumber the same, pending disposal of the Page No.17/29 http://www.judis.nic.in O.S.A.No.3 of 2020 Execution Petition in E.P.No.103 of 2013.
13. Therefore, the learned counsel for the appellant/D2 submitted that the appellant is having interest over the suit property by virtue of the Award passed by the learned Arbitrator, and hence, the appellant/D2-Company cannot be termed as a formal party. He further contended that when the property is situated outside the jurisdiction of this Court, the plaintiffs are not entitled to maintain the suit before this Court. The prayer made in the suit clearly shows that the plaintiffs are seeking to establish control over the property which is located outside the jurisdiction of this Court. In support of the above submissions, the learned counsel for the appellant/D2 relied on the following decisions:
(a) 2006 (1) MLJ 357 (Division Bench of this Court) (Thamiraparani Investments Private Limited Vs. Meta Films Private Limited);
(b) 2012 (1) LW 66 (Division Bench of this Court) (Timothy Bowen and others Vs. Clenergen Corporation and others);
(c) 2013 (1) LW 728 (Division Bench of this Court) (Jethmull Chordia Vs. C.Venkatasubba Reddy);
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(d) 2015 (8) SCC 219 (Excel Dealcomm (P) Ltd. Vs. Asset Reconstruction Co. (India) Ltd);
(e) 2016 (2) SCC 582 (Sumer Builders Private Limited Vs. Narendra Gorani), and
(f) 2018 (4) CTC 721 = 2018 (3) LW 900 = 2018 (7) MLJ 281 (Division Bench of this Court) (Harsha Estates Vs. Dr.P.Kalyana Chakravarthy).
14. Thus, the learned counsel for the appellant/D2 submitted that the leave granted by this Court had to be revoked by setting aside the impugned order passed by the learned Single Judge.
15. Countering the above submissions, the learned counsel for the respondents 1 to 3/plaintiffs submitted that a plain reading of the suit prayer clearly shows that it is only a suit-simpliciter for the relief of execution and registration of the sale deed in respect of the suit schedule mentioned property(ies) and the suit is not one for land. The plaintiffs have not claimed the possession of the property in the present suit. In fact, the possession has Page No.19/29 http://www.judis.nic.in O.S.A.No.3 of 2020 already been handed over to them on 04.08.2008 itself along with the original title deeds. The agreement was entered into only in Chennai and the entire consideration was also paid to the first defendant only in Chennai. Thus, considering all these aspects, the learned Single Judge had correctly dismissed the application seeking to revoke the leave and hence, the learned counsel for the plaintiffs prayed for dismissal of the present appeal. In support of his submissions, the learned counsel for the respondents 1 to 3/plaintiffs relied on the following decisions:
(i) 1997 (2) CTC 550 = 1997 (3) LW 391 = 1998 (1) MLJ 132 = CDJ 1997 MHC 1062 (Division Bench of this Court) (N.Dhanalakshmi and others Vs. S.Ekanathan, Proprietor, Eknath Real Estates);
(ii) 2001 (7) SCC 698 = MANU/SC/0550/2001 (Adcon Electronics Pvt. Ltd. Vs. Daulat and another);
(iii) 2008 (1) CTC 471 = 2008 (2) MLJ 169 = CDJ 2008 MHC 151 (Division Bench of this Court) (S.V.Subramaniam Vs. M/s.Cypress Semiconductor Technology India Pvt. Ltd, rep. by its Director Mr.K.Viswanath);
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(iv) 2008 (4) CTC160 = 2008 (8) MLJ 1210 = CDJ 2007 MHC 5595 (Division Bench of this Court) (A.C.Subba Reddy Vs. Jawahar International Trading Corporation Company, rep. by its Managing Partner and others), and
(v) 2016 (3) MWN (Civil) 718 (Division Bench of this Court) (Ponnammal Vs. K.V.Janarthanam);
16. On the above aspects, this Court also heard the submissions of the learned counsel appearing for the fourth respondent/first defendant.
17. Keeping the above submissions made by the learned counsel appearing for the parties, we have considered the same and perused the materials available on record.
18. Since we have dealt with the factual aspects of the matter in detail, we are not traversing into the same once again, and only the facts which are germane to the case, alone, are reiterated hereunder.
19. Though very many contentions have been raised by the learned counsel appearing for the parties, the main submission of the learned Page No.21/29 http://www.judis.nic.in O.S.A.No.3 of 2020 counsel for the appellant/D2 is that the suit property is situated outside the jurisdiction of this Court. The present suit is filed for specific performance of the contract. Therefore, this Court cannot have jurisdiction to entertain the plaint as per Clause 12 of the Letters Patent, and as such, the leave granted in the application filed by the plaintiffs, is liable to be revoked by allowing the application filed by the appellant/D2 to revoke the leave granted and consequently, the plaint may be returned to re-present the same before appropriate Court of Law, which will have jurisdiction over the subject property.
20. The learned counsel for the appellant/D2 further submitted that the plaintiffs have also sought for injunction, and therefore, in such circumstances, they are only seeking to establish control over the suit property, which is located outside the jurisdiction of this Court and hence, this Court will not have territorial jurisdiction for the same.
21. By way of reply, the learned counsel for the respondents 1 to 3/plaintiffs submitted that so far as the prayer of injunction is concerned, he is not pressing the same and made an endorsement on the Memorandum of Grounds of Appeal to that effect. Therefore, the prayer in the suit would not Page No.22/29 http://www.judis.nic.in O.S.A.No.3 of 2020 amount to control over the land and the learned counsel for the plaintiffs prayed for dismissal of the appeal.
22. In view of the above submissions made by the learned counsel appearing for the parties, the only point that arises for consideration in this appeal is as to whether the suit filed by the plaintiffs is a "suit for land". If it is suit for land, then the suit is not maintainable before this Court, since the land(s) is situated outside the jurisdiction of this Court. If it is otherwise, i.e. if it is suit simpliciter for enforcement of the contract, then this Court will have jurisdiction to entertain the suit. In order to decide the above issue, we are of the opinion that it would be appropriate to once again extract the first prayer made in the plaint:
"(a) to direct the first defendant to execute and register the sale deed(s) in favour of the plaintiffs, free from all encumbrance, on the date to be fixed by this Court and in the event of default, the Assistant Registrar (O.S), High Court of Judicature at Madras, to execute the sale deed(s) in respect of the suit schedule property, in favour of the plaintiffs or their nominee or nominees or in the alternative, direct the first defendant to refund Page No.23/29 http://www.judis.nic.in O.S.A.No.3 of 2020 the advance sale consideration of Rs.3,47,25,000/-
together with interest at the rate of 24% per annum from the date of plaint till the date of realisation and to award compensation and damages that may be fixed by this Court."
23. A plain reading of the above prayer clearly shows that the suit has been filed as suit-simpliciter" for the relief of execution and registration of the sale in respect of the suit schedule mentioned property. It is admitted that the agreement for sale was executed only within the jurisdiction of this Court and the consideration was also paid within the jurisdiction of this Court. There is no prayer for a direction to the defendant(s) to hand over the possession of the suit property, either directly or impliedly. In fact, it is the specific case of the respondents 1 to 3/plaintiffs that the possession had already been handed over to them as early as on 04.08.2008 itself. Only the execution of the sale deed has to be made. In this regard, it is appropriate to notice the judgment of this Court reported in 2018 (4) CTC 721 = 2018 (3) LW 900 = 2018 (7) MLJ 281 (Harsha Estates Vs. Dr.P.Kalyana Chakravarthy), wherein the Division Bench held that if the possession is Page No.24/29 http://www.judis.nic.in O.S.A.No.3 of 2020 sought for in a suit for specific performance, then the same had to be filed only before a competent Court of jurisdiction where the suit property is situated. In the case on hand, as per the plaint averments, the possession had already been handed over to the plaintiffs, and therefore, they are not seeking possession of the property(ies) and the suit is filed only for enforcement of the contract. The suit filed for specific performance is an action in-personam and it cannot be a suit for land. In this regard, it is worthwhile to notice a decision of the Full Bench of this Court in the case of P.M.A.Valliappa Chettiar and others Vs. Saha Govinda Doss and others, reported in AIR 1929 Madras 721 = 1929 (57) MLJ 90 to contend that a suit filed for specific performance is an action in-personam and it cannot be a suit for land. This decision has been dealt with by this Court in a recent decision of a Division Bench of this Court in O.S.A.Nos.24 of 2019, etc., dated 19.06.2020, reported in 2020 (3) LW 577 (M/s.Virgo Industries (Engineers) Pvt. Ltd. Vs. M/s.Venturetech Solutions Pvt. Ltd.
24. Therefore, the suit for specific performance is an action in- personam and the same is maintainable before this Court, since the respondents/plaintiffs have not sought for possession of the property(ies). Page No.25/29 http://www.judis.nic.in O.S.A.No.3 of 2020
25. For the foregoing reasons, we do not find any infirmity in the leave granted by this Court to the plaintiffs to sue the defendant(s), and the learned Single Judge had rightly dismissed the application filed by the appellant/D2 for revocation of the said leave.
26. Accordingly, while confirming the impugned order passed by the learned Single Judge, this O.S.A. is dismissed. No costs. Consequently, C.M.P. is closed.
(R.P.S.J) (R.P.A.J.,)
21-08-2020
Index: Yes
Speaking Order: Yes
cs
To
The Sub-Assistant Registrar,
Original Side, High Court, Madras.
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O.S.A.No.3 of 2020
O.S.A.No.3 of 2020
R.SUBBIAH, J
and
R.PONGIAPPAN, J
After delivering the judgment, the learned counsel appearing for the appellant/second defendant submitted that because of the pendency of the present O.S.A., the second defendant is not in a position to file written statement, and therefore, the second defendant may be permitted to file written statement before the Single Judge within a period of four weeks, with necessary condone delay petition.
2. We are of the opinion that the filing of written statement before the Single Judge is not in the purview of this Court. The learned counsel appearing for the respondents 1 to 3/plaintiffs submitted that he will not have any objection to condone the delay in filing the written statement by the second defendant. This submission of the learned counsel appearing for Page No.27/29 http://www.judis.nic.in O.S.A.No.3 of 2020 the respondents 1 to 3/plaintiffs, is recorded.
(R.P.S.J) (R.P.A.J)
21.08.2020
Index: Yes/no
Speaking Order: Yes/no
cs
To
The Sub-Assistant Registrar,
Original Side, High Court, Madras.
Page No.28/29
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O.S.A.No.3 of 2020
R. SUBBIAH, J
and
R.PONGIAPPAN, J
cs
Pre-delivery Judgment in
O.S.A. No.3 of 2020
21.08.2020
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