Calcutta High Court
Himansu Kundu vs Satyanarayan Commosale Pvt. Ltd. & Ors on 24 June, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
GA No. 488 of 2016
CS No. 25 of 2016
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
HIMANSU KUNDU
Versus
SATYANARAYAN COMMOSALE PVT. LTD. & ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 24th June, 2016.
Mr. Pratap Chaterjee, Sr. Adv.
Mr. Anirban Roy, Adv.
Mr. Jayanta Sengupta, Adv.
Mr. Abhijit Sarkar, Adv.
Ms. Abhradita Chatterjee, Adv.
Mr. Abhik Chitta Kundu, Adv.
...for the plaintiff
Mr. Jayanta Mitra, Sr. Adv.
Mr. Jishnu Saha, Sr. Adv.
Mr. Manish Ch. Roy, Adv.
Mr. Souritra Ganguly, Adv.
Mr. Sayan Ganguly, Adv.
Ms. Arpita Saha, Adv.
...for defendant no. 1
Mr. Pallab Kr. Mitra, Adv.
...for defendant nos. 30 & 31
Mr. Arindam Banerjee,
Mr. Som Nath Nag, Advs.
...for defendant nos. 33 & 34
The Court : Mr. Mitra, learned senior Advocate appearing
on behalf of defendant no. 1 resumes his submissions. He refers to
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paragraphs 17 to 19 of a decision of the Division Bench of this Court in the
case of Debendra Nath Chowdhury vs. Southern Bank Ltd. reported in
AIR 1960 Calcutta 626. Relying on those paragraphs in particular Mr.
Mitra submits, the claim for specific performance is a separate cause while
the subsequent claim for possession on being successful on the claim for
specific performance, another separate cause. Hence the bar under Order
2 Rule 2 of the Code of Civil Procedure would not apply to the subsequent
suit. He reiterates that a decree for specific performance therefore would be
a direction in personem against the defendant within the jurisdiction of the
Court, to do or abstain from doing an act. In the case of a decree for
specific performance, to execute a document of title, the title would pass
only after the document is executed. According to him, a suit for specific
performance simplicitor may not be a suit for land but the principle was
not applicable to the case at hand in which the plaintiff is claiming that the
document of title of his client had been obtained by practising fraud. If the
plaintiff is successful, his client's document of title would be decreed to be
delivered up and cancelled which would necessarily affect the present title
his client has. That is sufficient for this Court to decide that this is a suit
for land situated outside the aforesaid jurisdiction.
He then relies on another decision of a Special Bench of this
Court in the case of Probirendra Mohan Tagore vs. State of Bihar
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reported in AIR 1959 Calcutta 767. He refers to paragraphs 14, 15 and
17 in particular. Paragraph 14 contains the claims in plaint of which claim
(c) is for a declaration that the notification published in the Bihar gazette
on 25th November, 1952 is invalid, inoperative and does not bind the
plaintiff. The Court on consideration of the plaint found that it appeared
the primary object of the suit was to obtain a permanent injunction
restraining the State of Bihar from giving effect to the said notification by a
declaration that the said notification did not in any way affect the plaintiff's
right, title and interest in the property comprised in the notification. The
statement in the plaint being interpreted or seen in that way the Court
came to the finding that in the absence of the plaintiff having pleaded any
wrong done or claim made to any property, being part of the family
settlement and will, which property was within the jurisdiction aforesaid,
the suit was a suit for land where the notified land was situated outside.
He laid special emphasis on portions of paragraph 17 of the said judgment
in which the views of the Federal Court in the case of Moolji Jaitha & Co.
vs. Khandesh Spinning & Weaving Mills Co. Ltd., reported in AIR 1950
F.C. 83, that if the primary object of the suit is to obtain an adjudication
upon title to immovable property, the suit will be a suit for land, were
relied upon.
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Mr. Mitra also refers to a decision of the Supreme Court
in Adcon Electronics Pvt. Ltd. vs. Daulat & Anr. reported in AIR 2001
SC 3712 regarding which he reiterates his submissions already made and
recorded earlier. He then relies on another decision of the Supreme Court
in the case of Sumer Builders Pvt. Ltd. vs. Narendra Gorani reported in
(2016) 2 SCC 582, to paragraphs 2 to 4, 6, 28, 31 and 32 in particular. He
draws attention to the consideration given by the Supreme Court, in
delivering that judgment, to all the cases cited by him. He submits further,
in that case the Supreme Court found that where there was an agreement
between an owner and a developer, an interest in land situated outside the
jurisdiction of the Bombay High Court was created thereby. The said Court
confirmed the concurrent findings of the Single and Division Benches of
the Bombay High Court that the application under Section 9 of the
Arbitration and Conciliation Act, 1996 for interim relief, upon obtaining
leave under Clause 12, was an application which ought to have been filed
in the Court within whose jurisdiction the land was situate. Mr. Mitra
points out that though correspondence referred to in the application
carried the assertion by the applicant that it was in possession of the land
but yet the action was found to be one akin to a suit for land which land
was situated outside the jurisdiction of the Bombay High Court.
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The plaintiff respondent will be heard on the adjourned
date. List this court application for further hearing on 29th July, 2016 marked at 3.30 P.M. (ARINDAM SINHA, J.) TR/