Calcutta High Court
Himansu Kundu vs Satyanarayan Commosale Pvt. Ltd. & Ors on 10 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 : 10th June, 2016.
Mr. Anirban Roy, Mr. Jayanta Sengupta, Mr. Abhijit Sarkar, Advs.
...for the plaintiff Mr. Jayanta Mitra, Sr. Adv.
Mr. Jishnu Saha, Sr. Adv.
Mr. Manish Ch. Roy, Adv.
Mr. Souritva Ganguly, Adv.
Ms. Arpita Saha, Adv.
...for defendant no. 1 Mr. Swarnendu Ghosh, Mr. Pallab Kr. Mitra, Mr. Sayan Ganguly, Advs.
...for defendant nos. 30 & 31 Mr. Arindam Banerjee, Mr. Som Nath Nag, Advs.
...for defendant nos. 30 & 34 The Court : Mr. Mitra, learned senior Advocate appearing on behalf of the applicant, defendant no. 1 draws attention to the plaint. He demonstrates that all the parties except the defendant no. 29, either 2 reside or carry on business outside the aforesaid jurisdiction. It is admitted that the property, in respect of which the conveyance was executed on the strength of the power of attorney, both those documents sought to be delivered up and cancelled, is also situate outside the aforesaid jurisdiction. He demonstrates further, the defendant no. 29 which is stated in the plaint to have its registered office within the jurisdiction aforesaid, has been alleged to be a signatory to the said Deed of Conveyance and in paragraph 39, which purports to give the particulars of fraud, there is only the allegation made in sub-paragraph (f) therein and the sentence that comes after, to the effect that the defendant no. 29 has perpetrated fraud from its said office. He submits, this is insufficient for the purpose of this suit, on the basis of such vague or absence of material statements in the plaint, to be either received or tried or determined by this Court.
He also submits, without prejudice to his above contention, that in any event the suit should be termed to be one as for land situate outside the jurisdiction aforesaid. He refers two decisions, the first having been rendered by the Division Bench of this Court in the case of Debendranath vs. Southern Bank reported in AIR 1960 Calcutta 626 and a decision of the Supreme Court in the case of Adcon Electronics Pvt. Ltd. vs. Daulat reported in AIR 2001 SC 3712. He submits, both the decisions have referred to a decision in the case of M/s. Moolji Jaitha & 3 Co. vs. Khandesh Spinning and Weaving Mills Co. Ltd. reported in AIR 1950 FC 83. Mr. Mitra then relies on the case of Maharaja Probirendra Mohan Tagore vs. State of Bihar reported in AIR 1959 Calcutta 767 which case was referred to in Debendranath (supra). According to him the law regarding determination of the question whether a suit is one for land as laid down by the said judgments to be applied as precedants is that in cases of agreement for specific performance for the enforcement of a contract of sale and for execution of a conveyance simplicitor, 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. He submits, by referring to paragraph 8 in Debendranath (supra), Courts have decreed specific performance as a decree in personem which the Courts could enforce against the defendants residing or carrying on business within its jurisdiction. The plaintiff upon obtaining execution of such decree would thereafter have to file a suit for getting the consequential relief by a suit for land. It is his clients' case that the present suit is a suit for land and it cannot be held otherwise by applying the principle in determining whether or not a suit for specific performance is a suit for land. The distinction is that in the present suit if the plaintiff is able to obtain a decree, that decree would operate in rem in assertion of the plaintiff's title, extinguishing the 4 title that his clients have on the documents as at the present time till before such decree is passed. Hence this suit is but a suit for land.
The applicant will be heard further on the adjourned date. List this application on 24th June, 2016 at 3 P.M. (ARINDAM SINHA, J.) TR/