Karan Singh Binayak vs B.O.C. India Limited

Jayanta Kumar Biswas, J.—This application dated July 10, 2003 has been filed by the sole Defendant in C.S. No. 355 of 2000. The prayers in this application are as follows:

(a) Leave granted under Clause 12 of the Letters Patent in C.S. No. 355 of 2000 be revoked;

(b) C.S. No. 355 of 2000 be dismissed;

(C) The plaint in C.S. No. 355 of 2000 be rejected and/or taken off the file.

(d) Stay of C.S. No. 355 of 2000 and all proceedings thereunder;

(e) Order of Injunction restraining the Plaintiff from taking any steps or any further steps in proceeding with the C.S. No. 355 of 2000.

(f) Ad-interim orders in terms of prayers above;

(g) Costs of this application be paid by the Plaintiff;

(h) Such further order or orders and/or direction or directions be given as to this Hon''ble Court may seem fit and proper.

In September 2000 Karan Singh Binayak as sole Plaintiff filed he suit in question. In his suit he prayed for the following reliefs:

The Plaintiff prays for leave under Clause 12 of the Letters Patent and claims:

(a) Declaration that the agreement for sale by and between the Plaintiff and the Defendant had been concluded on the terms and conditions mentioned in paragraph 10 and embodied in detail in the draft agreement being annexure hereto and the said agreement is valid and binding on the Defendant.

(b) Mandatory injunction directing the Defendant to execute the format agreement for sale in terms of the draft agreement of sale annexed hereto and marked with letter ''I'' (c) Specific performance of the agreement for sale by directing the Defendant to execute the deed of conveyance in terms of the agreement in favour of the Plaintiff.

(d) Alternatively and in the event, specific performance of the agreement cannot be had, decree for refund of Earnest Money Deposit of Rs. 25,00,000/- (Rupees Twenty-five Lakhs) with interest as claimed in paragraph 31 and decre for Rs. 50,00,000/- (Rupees Fifty Lakhs) on account of compensation as pleaded in paragraph 32.

(e) Perpetual injunction restraining the Defendant and its agents and representatives from to (sic) denying or disputing the agreement for sale set out in paragraph 10 hereof and that the said agreement is valid and binding on the Defendant;

(f) Injunction;

(g) Attachment;

(h) Costs;

(i) Further or other relief.

After filling the suit the Plaintiff filed an application for interim reliefs. On September 15, 2000 when such application was taken up for consideration, the learned Counsel appearing for the Defendant, though raised the question of maintainability of the suit on the ground of lack of jurisdiction of this Court, gave an undertaking that the Defendant would not change the nature of the land in question. The undertaking was recorded in the order dated September 15, 2000 keeping the question of maintainability of the suit open. The said interlocutory application was disposed of by order dated December 7, 2001. The maintainability point was left open. Then the present application was filed on July 11, 2003. The Plaintiff is contenting this application by filling opposition dated August 13, 2003; it has been replied to by the Defendant by affidavit dated August 29, 2003.

Mr. Starker, appearing for the Defendant has raised two contentions: - (1) From the statement in the plaint it is apparent that the suit is barred by the law laid down by the Supreme court in the case of M.C. Mehta Vs. Union of India and Others, and hence in view of the provision in Order 7 Rule 11(d) of the CPC the plaint is liable to be rejected: (2) In any case, the whole of the immovable property in relation to which the suit has been filed, being situated outside the local limits of the Ordinary Original Civil Jurisdiction of this Court, and the suit being on for land, this Court lacks in territorial jurisdiction to receive, try or determine the suit; and hence leave granted to the Plaintiff under Clause 12 of the Letters Patent is liable to be revoked.

By referring to the statement in the plaint Mr. Sarkar has contended that the alleged contract sought to be enforced in the suit is clearly barred by law, because in view of the Supreme Court decision in M.C. Mehta Vs. Union of India and Others, case (in which the subject land of the present suit was also the subject matter) the use of the subject land of the present suit cannot be altered from industrial to residential commercial one. He contends that the Plaintiff offered to buy the land in question for developing it to a residential, commercial complex, thought such use of the land is clearly barred by the law laid down by the Supreme Court, and hence the alleged contract being barred by law, the Plaintiff is not entitled to enforce the same. Regarding his second contention he submits that admittedly the whole of the suit land is situated outside the local limits of the Ordinary Original Civil Jurisdiction of this Court, and hence the Plaintiff is not entitled to get leave under Clause 12 of the Letters Patent to file the suit in this Court. He submits that in a suit relating to land, for involing the Ordinary Original Civil Jurisdiction of this Court on the basis of leave granted under Clause 12 of the Letters Patent, a portion of such land must situate within the local limits of the Ordinary Original Civil Jurisdiction of this Court.

Mr. Mitra, appearing for the Plaintiff has contended that the suit is not barred by any law as alleged, and in any event, in the order passed in M.C. Mehta''s Supra case, the Supreme Court did not lay down any law within the meaning of Article 141 of the Constitution of India. He has also contended that the Plaintiff never wanted to purchase the suit land for using the same in contravention of the order passed by the Supreme Court in M.C. Mehta''s Supra case. It is his further contention that the Supreme Court decision as well as the master plan prepared by the Delhi Municipal Corporation does not prohibit development of the land in question to residential/commercial one. He has also contended that from the statement in the plaint it cannot be said that the suit is barred by any law, including the Supreme Court order in M.C. Mehta''s Supra case, assuming the Supreme Court declared a law in it. Regarding grant of leave under Clause 12 of the Letters Patent he has submitted that the suit is not one for land as will appear from the prayers made in the plaint; it is one, inter alia, for declaration and specific performance of agreement for sale, and hence on the ground that no portion of the land in question is situated within the local limits of the Ordinary Original Civil Jurisdiction of this Court, the leave granted not liable to be revoked. He has also contended that the Plaintiff prayed for leave on the ground that the cause of action for his suit partly arose within the local limits of the Ordinary Original Civil Jurisdiction of this Court, and the Defendant has its office outside the said jurisdiction. In support of his this contention has relied on the Supreme Court decision in the case of 2001 VII AD 513 (SC) .

Briefly, the case made out in the plaint is this. At 66, Sibaji Marg, Kirtinagar, New Delhi there is a plot of land measuring 8.26 acres. The Defendant is the owner of this land. On this land the Defendant had a factory. Under the order of the Supreme Court the Defendant was obliged to shift its factory from this land into industrial area. It then wanted to sell this land. The Plaintiff was interested in buying the land for developing it into a residential/commercial complex. After negotiations he agreed to purchase this land at a consideration of Rs. 25.30 crores. By letter dated March 10, 1999 the Plaintiff made the offer. By letter dated April 22, 1999 the Defendant accepted the offer subject to certain terms and conditions. After further negotiations the Defendant issued fresh acceptance letter dated May 7, 1999, and asked for payment of the earnest money fixed at Rs. 25 lakhs. Under cover of letter dated May 10, 1999 the Plaintiff paid the earnest money without accepting all the terms put by the Defendant. The Defendant received the earnest money by encashing the cheque, and it was received without reservation. The parties were trying to sort out the terms and conditions of the agreement, and finally under cover of letter dated August 10, 2000 the Plaintiff sent the draft agreement for sale in final shape. Although the Defendant was bound to execute and act upon this agreement for sale, it did not execute this agreement. Hence the suit for declaration and other reliefs.

After hearing the learned Counsel for the parties, and after going through the statement in the plaint, I am of the view that there is no merit in this application, and the suit is not liable to be dismissed or the plaint is not liable to be taken off the file, and the leave granted under Clause 12 of the Letters Patent is also not liable to be revoked.

As to the contention that it is apparent from the statement in the plaint that the suit is barred by law, after going through the decision of the Supreme Court given in M.C. Mehta''s Supra case, I am unable to accept the contention raised by Mr. Sarkar. I am of the view that this Supreme Court decision does not lay down any law so as to prohibit development of any land within the limits of Delhi Municipal Corporation into a residential/commercial complex, once such land becomes available for use consequent upon shifting of the industries from such land in terms of the Supreme Court decision. The suit also cannot be said to be barred by this Supreme Court decision, since it is not a suit only for declaration and specific performance of an agreement for sale, but also one for alternative relief of refund of earnest money and compensation. The suit, to the extent the Plaintiff seeks declaration and specific performance of the agreement for sale, even if is held to be barred by the law, if any, laid down by the Supreme Court in M.C. Mehta''s Supra case, cannot, however, be said to be barred by such law, to the extent the Plaintiff seeks refund of earnest money and compensation by way of alternative relief. Hence I find no reason to hold that the suit being barred by law is liable to be dismissed or that for the same reason the plaint is liable to be taken off the file.

Regarding the contention that the whole of the land in question begin located outside the local limit of the Ordinary Original Civil Jurisdiction of this Court the leave granted under Clause 12 of the Letters Patent is liable revoked, I find that there is no reason to revoke the leave in spite of the fact that no portion of the land in question is located within the said jurisdiction of this Court. As rightly submitted by Mr. Mitra, a suit for specific performance of an agreement for sale without a claim for delivery of possession of the land, cannot be considered a suit for a land, and hence leave granted under Clause 12 is not liable to be revoked on the ground that no portion of the suit land is located within the jurisdiction of this Court. As will appear from the statement in the plaint, the Plaintiff prayed for leave under Clause 12 on the ground that the cause of action for the suit arose partly within the local limits of the Ordinary Original Civil Jurisdiction of this Court and the office of the Defendant is outside such jurisdiction. The Supreme Court decision relied on by Mr. Mitra in this connection fully supports his contention; he has relied on the decision in Adcon Electronics'' Supra case. In this case while considering Clause 12 of the Letters patent of the Bombay High Court, Supreme Court held that a suit for specific performance of the agreement for sale of the suit property wherein relief of the suit property has not been specifically claimed, as such cannot be treated as a ''suit for land''. In the instant case it will appear from the prayers made in the suit that the Plaintiff while prayed for declaration and specific performance of the agreements for sale, has not prayed for relief of delivery of the suit land. Hence I find no reason to revoke the leave granted to the Plaintiff under Clause 12 of the Letters Patent For the aforestated reasons, I find no merit in this application, and hence it is hereby dismissed. The costs of this application shall be the costs in the suit.

Urgent xerox certified copy of this judgment and order may be supplied to the parties, if applied for.