A suit for specific performance is a suit to enforce a personal obligation of the defendant vendor to convey the property to the plaintiff purchaser. The nature of the suit does not change if the plaintiff incidentally seeks cancellation of a subsequent sale.

S.C. GUPTE, J.

1. This Chamber Summons is taken out by the Applicants, who are original Defendant Nos. 11 to 14, for revocation of the leave granted under Clause XII of the Letters Patent to the Plaintiff to file the present suit, and dismissal of the suit for want of jurisdiction.

2. The present suit is filed by the Plaintiff for specific performance of an agreement for sale dated 2 February 1990 executed by one Dr. Ceasar M. Fernandes (predecessor-in-title of Defendant Nos.1 to 4 in the present suit), since deceased, and Defendant Nos. 1 to 4. By this agreement, late Dr. Ceasar M. Fernandes and Defendant Nos. 1 to 4 agreed to sell to the Plaintiff the suit property (consisting of land at Lonawala, District Pune along with a bungalow standing therein) for an aggregate consideration of Rs.26.50 lacs. Defendant Nos. 5 to 10 are heirs of one Dr. Michael Fernandes, brother of the said Dr. Ceasar M. Fernandes. It is the case of the Plaintiff that the agreement dated 2 February 1990 was valid, subsisting and binding on the vendors, including Defendant Nos. 1to 10 herein; that the Plaintiff is ready and willing to perform his part of the contract; that in defiance of the said agreement dated 2 February 1990 and with an intent to defeat the legitimate rights of the Plaintiff provided therein, late Dr. Ceasar M. Fernandes and Defendant Nos. 5 to 10 executed an Indenture of Sale dated 1 March 2007 in favour of Defendant Nos. 11 to 14; and that, in any event, the said Indenture of Sale does not, in any manner, effect the rights created in favour of the Plaintiff under the suit agreement dated 2 February 1990 inasmuch as Defendant Nos. 11 to 14 are not bonafide purchasers for value without notice and as such are bound to specifically perform the suit agreement jointly with Defendant Nos. 1 to 10 and/or severally in favour of the Plaintiff. The Plaintiff has, in the premises, sought a declaration in the suit that the suit agreement dated 2 February 1990 is valid, subsisting and binding on Defendant Nos. 1 to 14 and prayed for a decree of specific performance against Defendant Nos. 1 to 14 jointly and/or severally. The Plaintiff has also prayed for a declaration that the Indenture of Sale dated 1 March 2007 is invalid and not binding on the Plaintiff.

3. The present Chamber Summons is filed on the footing that the property, which is the subject matter of the suit, is situated outside the jurisdiction of this Court and that the suit being a suit for land, no leave under Clause XII ought to have been granted and that the leave granted under Clause XII of Letters Patent ought to be revoked. It is the case of the Applicants that at least in so far as the prayer for declaration of invalidity in respect of the Indenture of Sale/Conveyance dated 1 March 2007 is concerned, the suit seeks an interference with the title of Defendant Nos. 11 to 14 with the suit property and is, therefore, a suit for land, which is outside the jurisdiction of this Court. Accordingly, it is submitted that the leave granted under Clause XII ought to be revoked and the suit be dismissed for want of jurisdiction.

4. Dr. Saraf, learned Counsel appearing for the Applicants submits that the suit, which seeks cancellation of conveyance or deed of sale in respect of land or immovable property and thereafter seeks specific performance of an agreement for sale executed by the vendor, is not a suit simplicitor for specific performance. It is submitted that suit insofar as it seeks cancellation of a deed of sale in respect of land or immovable property is a suit in respect of title as well as possession of land or immovable property. It is submitted that such a suit does not find any sanction of Chapter II or any other provision of the Specific Relief Act. Dr. Saraf relies upon a judgment of the Federal Court in Messrs Moolji Jaitha and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd. AIR 1950 FC 83: 1949 FCR 849 and a judgment of the Calcutta High Court in the case Ra