TaxTMI 
TaxTMI 
2008 (3) TMI 770
X X X X Extracts X X X X
X X X X Extracts X X X X
....et, New Delhi and the Defendants carry on business and work for gain at Delhi. The Defendants made the offer to sell the suit premises to the plaintiff at New Delhi and the plaintiff accepted the said offer also at New Delhi. The payments were also made by the plaintiff to Defendant No. 1 at New Delhi. Accordingly, the Agreement was concluded at New Delhi. Further, the plaintiff is merely seeking the relief of specific performance of the contract dated 16/20.01.2004 for sale concluded between the parties, which relief can be entirely enforced through the personal obedience of the Defendants. Therefore, this Hon'ble Court has the territorial jurisdiction to entertain and try the present suit. 3. The aforesaid suit was based on the alleged contract dated 16/20.01.2004 alleging that the commercial property measuring 10,747 sq. ft. (1998.420 sq. mtrs.) on the second floor of the Fortune Global Hotel and Commercial Complex, Gurgaon was sought to be conveyed. In para 8 of the plaint it was stated thus: 8. That after discussions and negotiations Shri Achal Raina, Vice President of Defendant No. 1 sent a written communication dated January 16, 2004 (hereinafter referred to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....id plaint the respondent has not prayed for delivery of possession of the suit property. The respondent-plaintiff has only prayed for a decree for specific performance, commanding the defendants to transfer the right, title and interest in the suit premises to the plaintiff, by executing and getting registered the sale deed/document to transfer the title of the suit premises in terms of the aforesaid alleged contract dated 16/20.01.2004. 6. Upon being served with the summons, the appellants entered appearance and they filed a written statement taking, inter alia, a preliminary objection with regard to the maintainability of the suit in Delhi Court. The said objection was taken in the following manner: 46. Para No. 46 of the plaint is absolutely wrong and vehemently denied. The suit property is situated at Gurgaon. The defendants carry on business and work for gain at Gurgaon. The defendants No. 1 to 3 have also shifted their offices to Gurgaon. Since the suit property is situated in Gurgaon, the Courts at Gurgaon alone have got the jurisdiction to try and decide the present suit. The making of payment is irrelevant and inconsequential for the purpose of conferring juris....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Finance 80(1999)DLT460 ; 2. Karan Mahendru and Anr. v. Vatika Plantations (P) Ltd. 111(2004)DLT264 ; 3. Adcon Electronics Pvt. Ltd. v. Daulat and Anr. AIR2001SC3712 ; and 4. Babu Lal v. Hazari Lal Kishori Lal and Ors. [1982]3SCR94 . 9. Reference was also made by the learned Single Judge to the provisions of Section 16 of the Code of Civil Procedure and to the provisions of Section 22 of the Specific Relief Act and also to the provisions of Order 2 Rule 2 of the Code of Civil Procedure. The aforesaid findings and conclusions recorded by the learned Single Judge were challenged before us by filing the aforesaid appeals by the two defendants, who are appellants herein. 10. It was submitted on behalf of the appellants that the learned Single Judge was not justified in making the aforesaid distinction in a case of specific performance of the contract, where, according to the appellants, decree of delivery of possession is inherent in a decree for specific performance of contract. It was submitted that in a case where possession of immovable property is vested with the vendor, even if any decree for possession is not sought for and only a decree of spe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3) The power of the court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21. 11. Section 16 is one of the provisions found in the Code of Civil Procedure which deals with territorial jurisdiction of the Courts. It provides that the suits for recovery or partition of immovable property or for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property or for determination of any other right to or interest in immovable property, or for compensation for wrong to immovable property, or for recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. The proviso attached to the aforesaid provisions provides that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficant. While interpreting the said provision it was held by the Supreme Court that the said expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. The aforesaid proposition laid down by the Supreme Court was further explained holding that it may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. The Supreme Court went on to hold that in a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simplicities without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... referred to the contents of the alleged agreement to sell. When a decree is passed for specific performance of the contract necessarily all the contents of the said alleged contract shall have to be enforced and directed to be verified. The said contract dated 16/20.01.2004 also contains a payment schedule. There is also a stipulation therein that payment of the sale consideration has to be made in the manner provided therein. It is stipulated that 10% of the total sale consideration has to be paid immediately on booking, 85% of the sale consideration has to be paid by 28th February, 2004 and the balance 5% of the total sale consideration shall have to be paid at the time of notice for possession of the premises. The said alleged contract also stipulates for delivery of possession of the suit property on payment of balance 5% of the total sale consideration, which has to be paid on receipt of notice issued by the appellant to the respondent for possession of the premises. Section 55 of the Transfer of Property Act, 1882 also casts an obligation on the seller to deliver possession to the transferee pursuant to a sale deed, as it is laid down that a seller is not only bound on payme....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... they were initially residents of Delhi and that they had moved to Gurgaon and their corporate office is now also located at Gurgaon. It is the contention of the counsel appearing for the respondents that the proviso to Section 16 of Code of Civil Procedure is applicable which is sought to be invoked, for, the relief which is sought for could be entirely enforced through the personal obedience of the defendants in Delhi. There is however not only a prayer in the plaint for declaration of the right and title, but also to transfer the right, title and interest in the suit premises situate at Gurgaon. As, in our opinion, the suit can be decreed in favor of the plaintiff only when the Court can get the sale deed executed and registered in favor of the plaintiff which would confer the title of the suit premises on the plaintiff, and the execution and the registration of the sale document would have to take place at Gurgaon and, for this the Court will also have to pass a decree directing the defendant to get the sale deed executed and registered at Gurgaon, implication of the same will be that a direction will have to be given to the defendant that he shall have to move out of Delhi and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of institution of a suit would be guided by the location of the property in respect of which and for determination of any right or interest whereof the suit is instituted. The proviso to Section 16 CPC is also not applicable to the case, as the relief sought for cannot be entirely granted or obtained through the personal obedience of the respondent. 21. The decision of the Supreme Court in the case of Adcon Electronics Pvt. Ltd. v. Daulat and Anr. AIR2001SC3712 , relied upon by the respondents, would also not be applicable to the facts of the present case. The said decision was rendered in the context of the expression "suit for land". The Supreme Court in the said decision held that suit for specific performance of an agreement for sale of the suit property, without a claim for delivery of possession, cannot be treated as a "suit for land" and is, Therefore, triable under Clause 12 if the other conditions there under are fulfilled. The facts of the said case are, Therefore, distinguishable and are not applicable to the case in hand. The said decision was rendered due to specific provision therein and it is also apparent from the fact that the case of Babu Lal(supra) was not eve....