Madras High Court
The Government Of Tamil Nadu vs Singapore Reality Private Limited
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
In the High Court of Judicature at Madras
RESERVED ON
DELIVERED ON
09-07-2018
02-08-2018
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Application Nos.6457 of 2016 and 4250 of 2018
in C.S.Diary No.22017 of 2016
1. The Government of Tamil Nadu
Rep.by the Additional Chief Secretary
to Government
Industries Department,
Fort St. George,
Chennai 600009.
2. The State Industries Promotion Corporation
of Tamil Nadu Limited (SIPCOT)
Represented by the Managing Director,
No.19-A, Rukmani Lakshmipathi Road,
Egmore, Chennai 600008. ... Petitioners/Plaintiffs
[in both applications]
vs.
Singapore Reality Private Limited
represented by its Director
No.23, 1st Floor, Kasi Arcade
No.116, Sir Thyagaraya Road,
T.Nagar, Chennai 600017. ... Respondent/Defendant
[in both applications]
Prayer in A.No.6457 of 2016
This application has been filed to grant leave to the Applicants/plaintiffs to sue the respondent/defendant in the suit in C.S.Diary No.22017 of 2016.
Prayer in A.No.4250 of 2017
This application has been filed seeking permission to amend the plaint in C.S.D.No.22017 of 2016.
For Applicants : Mr.P.H.Aravinda Pandian
Additional Advocate General
Assisted by
Mr.A.Dev Narendran
Government Advocate
For Respondent : Mr.Sriram Panchu,
Senior Counsel for
M/s. Srinath Sridevan
COMMON ORDER
1. Application No.6457 of 2016 is filed to grant leave to file suit as the property registered under the sale deed situate outside jurisdiction of this Court. The suit is originally filed for the following reliefs:
(i) to declare that the defendant is in gross breach of its obligations under the contract and under the sale deeds.
(ii) to declare that the Sale Deeds dated 6.5.2004 and 16.12.2004 executed by the 2nd plaintiff pursuant to the MOU entered into by the 1st plaintiff registered as Document No.1689 of 004 and 5898 of 2004 respectively be cancelled and the defendant ordered to reconvey the lands by a Registered Deed.
(iii) for mandatory injunction directing the defendant to reconvey the lands morefully described in the schedule and return all the original title deeds of the schedule mentioned property to the plaintiffs and the 2nd plaintiff to return the sale consideration received from the defendant under the sale deeds.
(iv) to grant injunction on the defendant from alienating, encumbering or otherwise dealing with the properties more fully described in the schedule.
2. When the application for leave to sue is pending, an amendment application also filed by the Government of Tamil Nadu to bring the following amendment in the plaint in C.S.D.No.22017 of 2016:
(i) Declaration that the Memorandum of Understanding dated 16.09.2003 executed at Chennai between the 1st plaintiff and the Defendant has become void as having hit by the principle of frustration due to the breach committed by the Defendant.
(ii) Declaration that resultantly the allotment orders made in Chennai dated 13.02.2004 and 10.12.2004 executed between the 2nd plaintiff and the defendant ceases to have any effect.
(iii) Mandatory injunction directing the Defendant to enter into Deed of cancellation of sale deeds dated 06.05.2004 and 16.12.2004 registered as Doc.No.1689 of 2004 and 5898 of 2004 with the 2nd plaintiff, upon receiving the refund of the sale consideration.
Both the applications are heard together and the common order is delivered.
3. The brief facts leading to file the suit is as follows:
3.(a) The 1st plaintiff Government of Tamil Nadu issued G.O.Ms.No.86, Industries (MIG.2) Department, dated 08.10.2002 for setting up Integrated Knowledge Industry Township at the IT park at Siruseri. The respondent company shown interest in the above project and filed an application for allotment of 165 Acres of land at Siruseri on outright sale basis to set up of integrated/model township with an investment of Rs.500 Crores. The second plaintiff in his letter dated 09.04.2003 has agreed in principle to allot 100 acres of land at SIPCOT IT Park, Siruseri on outright sale basis at a cost of Rs.13.00 lakhs per acre subject to certain conditions. Thereafter on 16.09.2003, the Government of Tamil Nadu entered into a Memorandum of Understanding with Lee Kim Tah Holding Ltd., Singapore (hereinafter referred to as 'LKTH Ltd'.). As per the provision of the MoU, these lands would be offered for setting up township at prefixed price of Rs.15.00 lakhs. Out of this amount Rs.13.00 lakhs was to be paid to the SIPCOT upon allotment of the lands and the balance amount to be paid by the LKTH Ltd.upon the completion of first phase of the project or at the end of three years from the date of allotment whichever is earlier. One of the crucial terms of the MOU was that the first phase of 2000 housing units was to be completed within three years of the date of the registration of the lands.
3.(b) After entering the MoU the dispute which arose between the defendant and the Government of Tamil Nadu subsequently had to do with the grant of the Environmental Clearance for the completion of the project. As the defendant has not obtained environmental clearance, the Ministry of Environment and Forest directed the Principal Secretary, Environment Department, Government of Tamil Nadu under Section 5 of the Environment (Protection)Act 1986 to direct the project proponent to stop the construction work immediately; stop the electricity and water supplies to the said constructions site; Take action on the project proponent for violating the provisions of the Environment (Protection) Act, 1986; and submit an action taken report within 15 days from the receipt of the above directions. Above order of the Ministry of Environment and Forest has not challenged by the defendant till date. Therefore, Government of Tamil Nadu passed an order dated 16.09.2003 terminating the MOU on the ground that the performance of the contract by the project company in terms of MOU has become practically impossible.
3.(c) The above order has been challenged in W.P.Nos.6243 and 6244 of 2006. Both the writ petitions were allowed on 14.03.2012. Aggrieved by the order of the learned Judge, the Government of Tamilnadu as well as the second plaintiff filed writ appeals. The writ appeals were also dismissed. SLP preferred by the Government is also disposed by the Honourable Supreme Court on 13.10.2015. However, the SLP filed by the Government of Tamilnadu was permitted to be withdrawn the petition with liberty to work out the remedy before the Civil Court. In the suit it is alleged that the defendant has not obtained environmental certificate and have put up constructions in violation of the provisions in the Environmental Impact Assessment notification by the undertaking the developmental activity without obtaining prior clearance/permission. Even pending Writ Petition and Writ Appeal or even the pendency of Special Leave Petition, the defendant have not obtained any clearance. Therefore, it is the contention of the plaintiff that the defendant violated the terms of the sale deeds dated 16.12.2004 and 6.5.2004. Hene the contract has become virtually impossible to perform. Similarly one of the crucial terms of the MOU was that the first phase of 2000 housing units was to be completed within three years of the date of the registration of the lands. However, the defendant have not obtained necessary approvals. Hence the suit has been laid on the ground that the contract has become virtually impposible and the allotment has become frustrated due to the breach of the terms and conditions of allotment and also for other reliefs as stated above. As the land situate outside jurisdiction of the Court, leave to file the suit is also prayed.
4. The respondent filed counter interalia contended that by G.O.Ms.No.17(Industries Department) dated 17.2.2006, Government of Tamil Nadu cancelled the MOU, which was challenged before the Court in W.P.Nos.6243 and 6244 of 2006 and this Court vide Judgment dated 14.03.2012 rejected all the contention of the plaintiffs against which both the plaintiffs filed separate Writ Appeals in W.A.Nos.2179 and 2180 of 2013 which were also dismissed by this Court and the SLP filed by the second applicant in SLP(Civil) Nos.17449 and 17450 of 2014 were also dismissed on 01.09.2014 by the Honourable Supreme Court. Review Petition Nos.2817 and 2818 of 2014 were also rejected on 13.1.2015. Even Curative Petitions filed by the second applicant was also rejected on 13.10.2015. Therefore, there is no iota of doubt between the 2nd applicant and respondent as the matter had come to an end. After the 2nd applicant exhausted the entire garnut of litigation available in the Indian Judicial System, the 1st applicant started the next round of litigation by filing separate SLPs and the Honourable Supreme Court refused to entertain the same and the same was withdrawn by the 1st applicant. In that order no liberty was given either expressly or impliedly. Hence, the defendant opposed the applications on the ground of re-litigation.
5. Learned Senior Counsel and the Additional Advocate General Mr.P.H.Arvindh Pandian submitted that merely because the writ petitions reached finality, the same cannot be considered that the entire issues between the parties are agitated in writ petition. The writ petition filed challenging the Government Order, cancelling the MOU entered into between the applicants and respondent were allowed only on the ground that before expiry of three years period agreed between the parties no cause of action arose for cancelling the MOU. Mainly on the above ground, the writ petitions were allowed. The order of the Division Bench also clearly show that the Government Order passed by the Government even before the expiry of three years to complete the I Phase of project is not valid in law. Apart from the above ground on the ground of violation of principles of natural justice also, the Government Order was quashed. It is also held by the Division Bench that the Doctrine of impossibility of performance cannot be ordered before the period of three years expired. Only on the above ground the writ appeal was dismissed. Therefore, it cannot stated that the entire issues reached finality between the parties. Hence submitted that the allotment of lands are based on the fulfillment of certain obligations by the respondents. In view of certain terms are not fulfilled and the respondent have not followed the mandatory provisions of Environment (Protection) Act 1986, the contract become frustrated. Therefore, the suit has been filed for declaration on the ground of frustration of contract. Hence, the suit is very much maintainable. The SLP filed before the Honourable Supreme Court was withdrawn by the 1st applicant with liberty to file civil suit. Though no specific order granting liberty passed by the Honourable Supreme Court, the fact remains that the SLP was permitted to be withdrawn with liberty to workout remedy before civil court. Hence submitted that mere cancelling the G.O.earlier, it cannot be said that there are no other grounds available. Hence, it is the contention of the learned Additional Advocate General that the respondent cannot argue that the suit is not maintainable on the ground of re-litigation.
6. He is also placed reliance of the Division Bench Judgment of the Bombay High Court in Wimco Ltd., Mumbai v. Matoshree Shelters Pvt.Ltd., Mumbai and other [2009(5) Mh.L.J.,615] wherein it is held that it is required to be found out as to whether the suit is in question is really a suit for title or essentially a suit for possession. In order to determine the said aspect, the Court is required to consider the averment made in the plaint as well as the nature of the transaction entered into between the parties. Considering the averments made in the plaint as well as considering the prayers in the plaint and the nature of the suit which was based on the MOU and agreement between parties. It is held such suit is maintainable and cannot be said that it is a suit for land. Hence, the learned counsel prayed that the leave may be granted to sue the respondent.
7. Learned Senior Counsel Mr.Sriram Panchu appearing for the respondent submitted that the reliefs sought in the suit challenging the Memorandum of Understanding entered into between the parties and also the sale deed executed in pursuance of the MoU. The Government of Tamil Nadu has issued G.O.Ms.No.17 (Industries Department) Dated 17.02.2006. Subsequently the 2nd applicant passed orders on 28.2.2006 asking the respondent to re-convey the land and 1st applicant issued letter of termination of MOU. The same was challenged before this Court in W.P.No.6243 and 6244 of 2006. The learned Single Judge of this Court considered the entire circumstances and held that the G.O. passed by the 1st applicant is not valid in law vide order dated 14.03.2012. Writ appeal preferred by the State Government against the order of the single judge was also dismissed. SLP filed by the State Industries Corporation also dismissed by the Honourable Supreme Court on 01.09.2014. The review application filed by the State Government of Tamil Nadu also dismissed on 13.01.2015. Curative Petitions filed by the 2nd applicant also dismissed on 13.10.2015. Thereafter 1st applicant has filed SLP against the Division Bench order of this Court dated 14.3.2014. When the matter was before the Honorable Supreme Court, the applicant sought permission to withdraw the SLP. Accordingly the Honourable Supreme Court recorded the statement of the applicant to withdraw the SLP and to work out their remedy before the Civil Court. Thereafter respondent filed writ petition directing them to accept the remaining consideration. Learned single Judge allowed the writ petition, directing the 2nd applicant to receive the balance sale consideration being tendered by the respondent. The respondent has tendered the balance sale consideration to the 2nd applicant. With this the respondent's obligations have all been fully satisfied, nothing remains to be done by the respondent. Now the applicants filed suit to avoid MOU on the ground of frustration of contract and also for declaration, which is not maintainable in law.
8. It is the further contention of the learned Senior Counsel that admittedly, the properties have been transferred by outright sale in the name of the respondent by registered sale deeds. The relief in fact is in respect of the property situate outside jurisdiction of this Court. Hence, leave cannot be granted. He has also relied upon the following judgments:
1. M/s.D.R.Logistics (P) Ltd v. Pridhvi Asset Reconstruction and Secujritization Company [O.S.A.No.272 of 2015 Dated 05.01.2016 - Division Bench of this Court]
2. Delta International Limited and others v. Smt. Nupur Mitra and others. [AIR 2018 Calcutta 8 ]
3. T.Arivandandam vs. T.V. Satyapal and Another (1977) 4 SCC 467]
4. S.K.J.Dhanasekar vs. SVS. Jawaharlal [2002 (4) CTC 653]
5. Ponmar Enterprises Pvt. Ltd. V. C.Sivasubarmanian [O.S.A. No.153 to 156 of 2017]
9. In the light of the above submissions now the point for consideration is whether the plaintiff is entitled for leave to sue the respondent before this Court?
10. First I deal with the submissions of the learned counsel for the respondent that the suit is hit by re-litigation. The suit has been filed for avoiding MOU and sale deeds on the ground gross breach of its obligation under the contract and also direction to re-convey the property to the Government. Another amendment application also filed seeking further relief for declaring that Memorandum of Understanding dated 16.09.2003 executed at Chennai between the 1st Plaintiff and the Defendant has become void as having hit by the principle of frustration due to the breach committed by the defendant.
11. It is not in dispute that MoU dated 16.09.2003 was entered into between the 1st plaintiff i.e., Government of Tamiladu and the 2nd plaintiff M/s.Lee Kim Tah Holding Ltd., ( LKTH Ltd,), Singapore, for setting up an integrated Township at SIPCOT IT Park, Siruseri, Chennai, wherein the second plaintiff was made a nodal agency for the completion of the project. Further, LKTH Ltd., formed a special purpose vehicle for the objective of the setting up of the integrated township. This joint venture special purpose vehicle was called as Singapore Reality P. Ltd., the respondent herein. Pursuant to the MoU the second plaintiff issued two allotment order to the respondent company, Thereafter two sale deeds dated 6.5.2004 and 16.12.2004 were executed by the second plaintiff in favour of respondent. Thereafter, in view of the notice issued by the Ministry of Environmental and Forest, it appears that the project could not be continued and completed the I Phase of construction within three years. Therefore, the 1st applicant i.e., Government of Tamil Nadu by order dated 17.2.2006 passed a Government Order cancelling the MOU dated 16.09.2003. Subsequently, the 2nd applicant passed orders on 28.2.2006 terminating the plot allotment. The orders were challenged on the ground of violations of principles of natural justice and non-application of mind. The respondent contended that they have already taken steps for getting environmental clearance certificate and made all arrangements to fulfill the obligations under the EIA notification. The learned Single Judge of this Court, by Judgment dated 14.3.2012 allowed the writ petition and quashed the G.O. of the first applicant and cancelled the termination order passed by the 2nd applicant. Against which the applicants filed writ appeals in W.A.Nos.1546 and 1547 of 2003 and W.A.No.2179 and 2180 of 2003. In the Writ Appeal, following issues were framed by the Division Bench for consideration:
10. The issues arise for consideration are,
(a) Whether the learned single Judge was right in entertaining the writ petitions.
(b) Whether the respondents have jurisdiction to cancel the MOU and the allotment orders before the expiry of period to complete the 1st phase of work.
(c) Whether the principles of natural justice was violated by the respondents while passing the impugned orders.
(d) Whether in the facts and of the case the Docrtrine of impossibility of performance can be allowed to be pleased for passing the impugned orders.
12. Para 34 of the Division Bench Order reads as follows:
"34. The cause of action cancelling the MoU and the consequential proceedings will arise only after the completion of three year period, viz., on or after 15.12.2007 and till such time, the SIPCOT was bound to co-operate with the petitioner for completion of the 1st Phase of the projects in terms of MOU and the sale deeds and it is pertinent to note that SIPCOT also co-operated with the petitioner upto September 2005. Thus, the reasons stated in the impugned orders are not valid reasons to cancel the MOU as well as the allotment orders."
13. Considering the entire submissions of both sides, in para 56, 57, 58 and 59 the Division Bench passed the order. The order of the Division Bench is as follows:
"56. The reasons stated in the Government Order to cancel the MOU is that the purpose for which the allotment orders issued due to impossibility of performance is justified or not is to be considered at this juncture. As already stated, time to complete the 1st phase of the project viz., construction of 2000 houses was not over and 22 months were available to the petitioner company to complete the project. Thus, the reasons stated in the Government Order that the purpose for which the allotment orders have been issued due to impossibility of performance is unsustainable.
57. Provisions of (The) Government Grants Act, 1895 cannot also be invoked by the respondents in the facts and circumstances of the case, as the conditions imposed in the MOU, allotment orders and sale deeds to complete the 1st phase of the project and payment of 20% within three years from the last sale deed was not over to invoke provisions of The Government Grants Act. It is not the case of the petitioner company that they are unable to fulfil the conditions imposed in the MOU, allotment orders as well as sale deeds. Without waiting for expiry of the time to comply with the condition mentioned in the said orders, the respondents have chosen to cancel the same and, now they are trying to justify their action by referring the provisions of (The) Government Grants Act, 1895 even though, no reference is made in the impugned orders on that aspect. Hence, the learned Senior Counsels for the petitioner company are justified in contending that either in the counter-affidavit or during the course of arguments, it is not open to the respondents to state new grounds to justify the impugned orders, by relying upon the judgment of the Hon'ble Supreme Court reported in (1978) 1 SCC 405 [Mahindher Singh Gill and another v. Chief Election Commissioner, New Delhi and others].
58. The decision cited by the learned Advocate General, reported in (1999) 2 SCC 37 (Indu Kakkar v. Haryana State Industrial Development Corporation Limited and another) can be applied, if the period of three years have expired on the date of the impugned orders.
59. In fine, we answer the issues framed by us in the following manner:-
(a) Learned single Judge was right in entertaining the writ petitions, inspite of having arbitration clause in the MOU, as facts are not in dispute.
(b) Respondents have no jurisdiction to cancel the MOU and allotment orders, before expiry of the period to complete the 1st phase of the project that was up to 15.12.2007.
(c) Respondents have violated the principles of natural justice as the petitioner's civil right is affected and there is a chance to explain as on 17.02.2006 whether the petitioner was in a position to complete the 1st phase of the project before 15.12.2007 as the application for environmental clearance was pending and not rejected.
(d) Doctrine of impossibility of performance can not be pleaded as on 17.02.2006 on the facts and circumstances of the case as there was every possibility to complete the 1st phase of the project by 15.12.2007."
14. The Division Bench has taken note of the fact that the MOU was cancelled even before the expiry of time for completion of the first Phase. In the above context the Division Bench held that the impossibility of performance can not be pleaded as on 17.02.2006 on the facts and circumstances of the case, when the time to complete the contract is not expired and finally the Division Bench has held that the order passed by the Single Judge is sustainable and there is a violation of principles of natural justice and the doctrine of impossibility of performance cannot be pleaded as on 17.02.2006 on the facts and circumstances of the case as there was every possibility to complete the 1st phase of the project by 15.12.2007. The Division Bench order made it clear that the doctrine of impossibility of performance cannot be pressed into service as the time for completion of I Phase was not over. Now, admittedly SLP and Review Applications filed by the 2nd applicant before the Honourable Supreme Court were also dismissed. The Curative Petition also rejected by the Honoruable Supreme Court which is also not in dispute.
15. The SLP filed by the State Government of Tamil Nadu (1st applicant) was withdrawn on the ground that they work out their remedy before the Civil Court. The Honourable Supreme Court has not specifically given liberty to the Government to institute a Civil Suit but permitted to withdraw the Special Leave Petition on that ground only. Now the suit has been filed on the ground of frustration of contract and the respondent has failed to obtain necessary clearance even after filing the writ petition and even after the dismissal of special leave petition till now.
16. As far as the plea of frustration of contract, it is settled that whether or not there is frustration of contract and the contract become impossible to perform is a matter of evidence. Before the principle of doctrine of frustration is applied, there must be an evidence to ascertain the facts forming the basis of the contract and see how far the change in the circumstance was such stage as to remove the very contract itself. Whether or not the contract is frustrated, the Court has to take into consideration of the various circumstances to come to the conclusion, whether they are sufficient to hold the parties observed from their obligations under the contract. To arrive such conclusion the Court must consider whole evidence to find out whose fault the contract become unenforceable. Whether the contract become frustrated and become impossible due to circumstances beyond the control of the parties or change in the circumstances makes the contract impossible is a matter of evidence. Therefore, I am of the view that merely because writ petition reached finality, the issue lead to the cancellation, G.O. passed before the expiry of the agreed period to complete the I phase of the houses, and also on the ground of violations of natural justice, it cannot be contended by the respondent that the matter is already reached finality, therefore the mater cannot be re-agitated. Whether or not frustration of contract was due to the breach of conditions by the plaintiff or defendant same has to be decided in the trial. The plaintiff have come before this Court to avoid contract on the ground of frustration of contract not only for the period from inception but also subsequent period. All these facts needs to be tried. Hence, I am of the view that the contention of the respondent that the suit is not maintainable on the ground of re-litigation cannot be countenanced.
17. The judgment cited by the learned Senior Counsel in D.R.Logistics Pvt.Ltd., V. Pridhvi Asset Reconstruction and Securitization Company (O.S.A.No.272 of 2015 - Madras High Court], the Division Bench of this Court taking note of the fact that the suit has been filed to frustrate the decree passed by the Tribunal as rejected. The facts of the above case is not applicable to the facts of the case on hand.
18. In Delta International Ltd.and others v. Smt.Nupur Mitra and others [AIR 2018 Calcutta 8 ] the Honourable Supreme Court had held that a court can make embark upon maintainability of the suit even at the time of obtaining the leave. No dispute with regard to the above judgment. But the given case facts are different. The suit is filed for avoid of contract on the ground of frustration.
19. In the judgment reported in T.Arivanandam vs. T.V.Satyapal [1977 4 SCC 467] it is held as follows:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good." "
Absolutely there is no dispute with regard to the jugment of the Honourable Supreme Court. Whereas this suit is filed on different cause of action mainly frustration of contract. Hence above judgment is not applicable to the facts of the present case.
20. It is the admitted case of both sides that pursuant to the MOU, applicants have issued allotment orders to the respondent, followed by absolute Sale Deeds. Now, the suit is filed to avoid the above documents, declaring the MOU as null and void and also for direction to reconvey the property to Government. The properties are situate outside the jurisdiction. This fact is not in dispute.
21. It is well settled that if any relief in respect of immovable property situate outside the jurisdiction of this Court is sought, directly affect the title or possession. Then such suit would be only for land. Therefore, as per Clause 12 of the Letters Patent , leave cannot be granted. The suit is filed to grant leave to sue in respect of the title of property and also for direction to reconvey the property. The relief in the suit itself clearly indicate that it has a control over the immovable property not only title but also possession. Hence, the suit filed before this Court is not maintainable. I have also considered the judgement citied by the learned counsel appearing for the respondent in this regard. The prayer in the suit is not only for title but also reconveyance of the property i.e., for delivery of possession. Therefore, I am of the view that the suit instituted is only for land.
22. Though the learned Additional Advocate General relied on the judgement of the Bombay High Court reported in Wimco Ltd. case (Supra) wherein the suit is filed to declare and adjudge the MOU dated 29.07.2004 and also for termination of Power of Attorney dated 16.03.2005 and also to handover the vacant possession. The Honourable Division Bench of Bombay High Court taken into consideration of the prayers in the plaint and nature of the suit which is based on the basis of MoU and agreement between the parties, held that suit is maintainable before original side. The above suit title was with plaintiff. Whereas in this case, absolute transfer was effected in favour of the respondent. Therefore, it cannot be said that the suit is not in respect of title. Therefore, by mere clear drafting that the Memorandum is hit by doctrine of frustration it cannot be said that suit is not for land. Hence, I am of the view that the suit is only for land and no leave can be granted. Hence the application to grant leave is dismissed. Since the application to grant leave to sue the respondent is dismissed the amendment application will not lie. Hence, the amendment application is returned.
23. In the result, A.No.6457 of 2016 is dismissed and A.No.4250 of 2018 is returned. The registry is directed to return the plaint and also amendment applications after making endorsement on the plaint. The Plaintiffs can make necessary addition in the plaint in tune with their amendment applications and present the plaint before the appropriate Court within six (6) weeks from the date of receipt of copy of this Order.
02-08-2018 Index : Yes ggs N. SATHISH KUMAR, J.
ggs Common Order in:
A.Nos.6457 of 2016 and 4250 of 2018 in C.S.Diary No.22017 of 2016 02-08-2018