Document Fragment View

Matching Fragments

17. It would, however, be necessary to highlight that suit as framed in the said case was for declaration that there existed a binding and valid contract between the parties. Thus, it was a suit for declaration simplicitor and the Court was not required to go into the question of right or interest in any immovable property.

FAO (OS) No.108/2008 25 of 25

18. Second Division Bench judgment is in the case of Vipul Infrastructure Developers Ltd. & Anr. V. Rohit Kochhar and Anr. [FAO (OS) 196-197/2005) decided on 11.3.2008. In that case agreement to sell dated 16/20th January 2004 was entered into between the parties in respect of property at Gurgaon, Haryana. Suit for specific performance was filed in Delhi. The Court was required to deal with the same question of jurisdiction with reference to the same provisions, namely, Section 16(d) of the Code, its proviso, Section 20 of the Code and Section 22 of the Specific Relief Act. The learned Single Judge had held the suit to be maintainable in Delhi on the ground that only a declaration of right and title in the suit property was sought and not the delivery of possession. The Division Bench overruled this judgment holding that Delhi Court has no jurisdiction and in the process placed reliance upon the decision of the Supreme Court in Babu Lal (supra). Though the judgment in Adcon Electronics (supra) was also noticed, the Division Bench was of the opinion that even when no prayer for declaration of delivery of possession of the suit property was made, when the plaint is to be read in entirety along with different clauses of the agreement to sell, delivery of possession was a consequence of the execution of sale deed and as this could not be done by mere presence of the defendant and therefore, Section 16(d) applied and not the proviso to Section 16 of the Code. The Court also held that as per the ratio of Babu Lal (supra), in satisfaction of a FAO (OS) No.108/2008 25 of 25 decree for specific performance of a contract for sale, the handing over of the possession of the property is incidental and therefore, the judgment debtor has not only to execute the sale deed but also to deliver the property to the decree holder. The relevant portion of the said judgment is reproduced below:-

19. One can possibly argue that there is some conflict of opinion in the aforesaid two Division Bench judgments. But for our purposes it is not necessary to go further. In K.G. Ringshia (supra), admittedly suit filed was for declaration simplicitor and that too, to the effect that there was a subsisting contract. In Vipul Infrastructure (supra), the Court proceeded on the basis that relief for possession was inherently claimed. We have already noted in the beginning that the legal principle which was accepted by both the parties, is that, if the suit is for specific performance simplicitor, relief can be obtained through the personal obedience of the defendant directing him to execute the sale deed (or lease deed as the case may be) as per the proviso to Section 16, such a suit can be filed in a particular court if it is shown that the defendant actually and voluntarily resides and carries on business or works for gain within the local limits of that Court even if the property is situated outside the local limits of that Court. On the other hand, if, along with the suit for specific performance, possession is also claimed, the suit has to be filed in a court where the immovable property is located inasmuch as, in that case relief cannot be obtained ordinarily through the personal obedience of the defendant. Reason is simple. For claiming relief of possession, even while executing the decree, one may have to approach FAO (OS) No.108/2008 25 of 25 the Court where the immovable property is situate by seeking transfer of that decree and thus, proviso would not apply in such a situation.