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FAO (OS) No.96 of 1999 HIGH COURT OF DELHI
ANIL VERMAN …APPELLANT
Through: Mr. P. Banerjee & Ms. Princy Ponnan, Advocates.
Through: Mr. G.L. Rawal, Sr. Advocate with Mr. Kuljeet Rawal, Advocate.
HON‟BLE MR. JUSTICE RAJIV SHAKDHER
JUDGMENT
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes SANJAY KISHAN KAUL, J.
1. The appellant filed a suit for specific performance and permanent injunction on the Original Side of this Court, which was numbered as Suit No.1377/1995, making the following prayers: “(a) pass a decree of Specific Performance in favour of the plaintiff and against the defendant in respect of an apartment in Neelanchal Apartments, Economy Type III, Pine Gardens, Nainital, developed by the defendant, together with the rights to the use of all common passages, entrances, terrace and any other common facilities and easements; 2011:DHC:4897-DB (b) by means of the said decree of Specific Performance, the defendant be directed to: i. to apply and obtain all permissions from all Authorities, including under Income Tax Act, that will render marketable, free from all encumbrances, the title of the said property, which is the subject-matter of the present suit in favour of the plaintiff; ii. intimate to the plaintiff of having obtained necessary permission by means of registered letters/notice. iii. to execute and sign the Sale Deed, appear before the sale and get the same registered and to receive the balance sale consideration amount; iv. all other directions be issued to the defendant for effecting the sale of the suit property and for passing clean, marketable, free from all encumbrances, title, upto the plaintiffs.
(c) This Hon‟ble Court may further observe in the decree and direct that in case the defendant fails to perform, neglects or otherwise becomes incapable of performing such acts and other directions as this Hon‟ble Court deems fit and proper, then, it may kindly direct any officer of this Hon‟ble Court to carry out all the aforesaid directions and to sign and execute proper Sale Deed for subject-matter of the present suit and accept the balance sale consideration.
(d) pass a decree of injunction permanently restraining the defendant from selling all the remaining flats/apartments in its Pine Gardens, Nainital and keep at least one flat/apartment reserved for the plaintiff till the disposal of this suit. (e) cost of the suit be also awarded in favour of the plaintiff and against the defendant. (f) Any other relief which this Hon‟ble Court may deem fit and proper in the circumstances or the case may also be granted in favour of the plaintiff and against the defendant.”
2. The plaint states that one of the employees of the respondent had visited the appellant in connection with the sale of an apartment in the complex which was being developed by the respondent in Nainital when a video tape of the site was shown to him. The appellant claims to have booked one flat on 15.1.1992 and handed over a cheque bearing No.049748 drawn on Central Bank of India for Rs.50,000.00 and another post dated cheque bearing No.948459 dated 25.4.1992 drawn on State Bank of India for Rs.15,000.00. The plaintiff claims that no documents were executed by the respondent in his favour despite lapse of three (3) years. Oral agreement is pleaded for one apartment in Neelanchal Type Economy III, having an area of 818 sq.ft. for a total price of Rs.6,50,310.00. The respondent is stated to have acknowledged the receipt of the sum of Rs.50,000.00 and the fact that the flat was to be a two bedroom unit. However, a larger area of 1076 sq.ft. was developed for which enhanced consideration of Rs.8,55,420.00 was demanded. The appellant, however, wanted to adhere to the initial contract. The appellant came across an advertisement of the respondent in respect of sale of flats and on being contacted the respondent refused to execute any agreement and wanted the current prevailing market price.
3. The respondent moved an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the „said Code‟). The respondent pleaded that it is the appellant who resiled from his obligations and failed to pay the installments. The application is predicated on the plea of absence of territorial jurisdiction of the Delhi High Court apart from the issue of non-readiness and willingness of the appellant to perform his obligations. The property in suit being located at Nainital, it is pleaded that the courts at Nainital alone would have territorial jurisdiction to try & determine the suit.
4. The prayer made by the respondent was accepted and the application was allowed vide impugned order dated 23.2.1999. The impugned order proceeds on the reasoning that the appellant seeks a decree for specific performance of the contract and in view of provisions of Section 22 of the Specific Relief Act, 1963 (hereinafter referred to as the „SR Act‟), the appellant is required to claim possession, or partition and separate possession, of the property, in addition to such performance in an appropriate case, if such relief has to be specifically claimed. Section 22 of the SR Act reads as under:
5. The impugned order relies upon the judgement of the Supreme Court in Babu Lal Vs. M/s. Hazari Lal Kishori Lal & Ors. AIR 1982 SC 818 as also on an unreported decision of the learned single Judge of this Court in Suit No.187/1989 titled G.S. Kohli & Ors. Vs. Mrs. Raj Rani Vijh & Ors. decided on 6.7.1992. It has, thus, been concluded that it may not always be necessary for a plaintiff to specifically claim possession of a property as a relief of possession is inherent in the relief for specific performance of a contract for sale.
6. The impugned order concludes that in a case where possession of the immovable property is vested with the vendor, even if no decree for possession is sought for in the plaint, in a suit for specific performance of a contract the Court shall have the power to grant a decree for possession of the immovable property in favour of the plaintiff and against the defendant besides granting the relief for specific performance. The plea of the learned counsel for the appellant that the claim was only for a decree of specific performance and not for possession of immovable property has not been accepted since though the suit has been framed as a suit for specific performance of the contract, a further declaration is sought for transfer of property in question in favour of the appellant thereby seeking a decree of possession as well. Such relief for possession has been held to be inherent in the relief for specific performance of the contract in view of Section 55(1) of the Transfer of Property Act, 1882.
7. The effect of the provisions of Section 16 of the said Code have also been analyzed. The said provision reads as under:
8. The learned single Judge has found that clause (d) of Section 16 of the said Code would apply in the present case as the property is situated in Nainital and that the proviso would not come to the aid of the appellant as the relief in the suit cannot be said to be entirely obtainable through personal obedience of the defendant. Even after the execution of the sale deed, the possession would be handed over to the appellant by the respondent only by going to Nainital.
9. The aforesaid order of the learned single Judge has now been assailed in the appeal.
10. The basic plea as canvassed by learned counsel for the appellant was that the nature of the suit in the present case was not a suit for land as the relief was only for specific performance simplicitor without the relief of possession and, thus, Section 16 of the said Code would not apply, but Section 20 of the said Code would be applicable. To buttress his submissions, learned counsel strongly relied upon the judgment in Adcon Electronics Pvt. Ltd. v. Daulat & Anr., (2001) 7 SCC 698. It is in the context of clause 10 of the Letters Patent of Bombay High Court that it was held that a suit for specific performance of an agreement for sale of suit property without claim for delivery of possession could not be treated as a suit for land and was thereafter triable under clause 10, if other conditions thereunder are fulfilled. It was further observed that the relief of possession could be granted only if specifically prayed for and, thus, a suit for specific performance of contract for sale of land is a suit for enforcement of the terms of the contract and cannot be treated as a suit for land. The title of the land concerned is not subject matter of a suit for specific performance. Sub-section (1) of Section 22 of the SR Act was held to be an enabling provision and, thus, a plaintiff in a suit for specific performance may ask for further reliefs mentioned in clause (a) and (b) thereof. In the plaint in question, no specific relief had been prayed qua possession. The legal position has been discussed in para 13 to 18 as under:- “13. Now, Sections 15 to 20 of the Code contain detailed provisions relating to jurisdiction of courts. They regulate forum for institution of suits. They deal with the matters of domestic concern and provide for the multitude of suits which can be brought in different courts. Section 15 requires the suitor to institute a suit in the court of the lowest grade competent to try it. Section 16 enacts that the suits for recovery of immovable property, or for partition of immovable property, or for foreclosure, sale or redemption of mortgage property, or for determination of any other right or interest in immovable property, or for compensation for wrong to immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate. Proviso to Section 16 declares that where the relief sought can be obtained through the personal obedience of the defendant, the suit can be instituted either in the court within whose jurisdiction the property is situate or in the court where the defendant actually or voluntarily resides, or carries on business, or personally works for gain. Section 17 supplements Section 16 and is virtually another proviso to that section. It deals with those cases where immovable property is situate within the jurisdiction of different courts. Section 18 applies where local limits of jurisdiction of different courts is uncertain. Section 19 is a special provision and applies to suits for compensation for wrongs to a person or to movable property. Section 20 is a residuary section and covers all those cases not dealt with or covered by Sections 15 to 19.
14. Section 16 thus recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate. A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment. Proviso to Section16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on well known maxim "equity acts in personam, recognized by Chancery Courts in England. Equity Courts had jurisdiction to entertain certain suits respecting immovable properties situated abroad through personal obedience of the defendant. The principle on which the maxim was based was that courts could grant relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam, i.e. by arrest of defendant or by attachment of his property.
15. In Ewing v. Ewing, (1883) 9 AC 34: 53 LJ Ch 435, Lord Selborne observed: "The Courts of Equity in England are, and always have been, courts of conscience operating in personam and not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts in trusts as to subjects which were not either locally or ratione domicilli within their jurisdiction. They have done so, as to land, in Scotland, in Ireland, in the Colonies, in foreign countries."
16. The proviso is thus an exception to the main part of the section which in our considered opinion, cannot be interpreted or construed to enlarge the scope of the principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be obtained by personal obedience of the defendant.
17. In the instant case, the proviso has no application. The relief sought by the plaintiff is for specific performance of agreement respecting immovable property by directing the defendant No. 1 to execute sale-deed in favour of the plaintiff and to deliver possession to him. The trial court was, therefore, right in holding that the suit was covered by Clause (d) of Section 16 of the Code and the proviso had no application.