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2017 Supreme(Cal) 468
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SOUMEN SEN, J.
Kirti Vinimay Pvt. Ltd. & Ors. - Petitioners
Versus
Chemtex Speciality Ltd. & Ors. - Respondents
GA No.1701, 2110 of 2017, CS No.110 of 2017
Decided On : 08-11-2017
Important Points
Subject
Civil Law - Jurisdiction
Act Referred
TRANSFER OF PROPERTY ACT : S.69
Headnote
Jurisdiction - Suit for Land - Transfer of Property Act - [Clause 12 of the Letters Patent] - [Debendra Nath Chwdhury v. Southern Bank Ltd. AIR 1960 Cal 626, Smt. Saroj Agarwal & Ors. Vs. Mohanlal Seal & Ors. 2003 (2) WBLR (Cal) 42, Moolji Jaitha and Co. Vs. Khandesh Spg. And Wvg. Mills Co. Ltd. AIR 1950 FC 83, Adcon Electronics Pvt. Ltd. Vs. Daulat & Anr. 2001 (7) SCC 698, Rashmoy Das Vs. Rajashree Enclave Pvt. Ltd. AIR 2011 Cal 148] - The Court held that the suit as originally framed is a suit for land and lacks jurisdiction over the subject matter of the dispute. The application for revocation of leave under Clause 12 of the Letters Patent was allowed and the plaint was directed to be taken off the file and returned to the plaintiff for presentation before the appropriate Court. The application for amendment of the plaint was dismissed due to lack of jurisdiction.
Fact of the Case:
The plaintiff sought relief in respect of a deed of sale purported to have been executed by Mr. Narayan Das Bhattar in favor of the defendant No.5. The plaintiff alleged fraud, collusion, and connivance between the defendant nos. 1, 2, 3, 5, and 6. The defendant nos. 1, 2, and 3 filed an application for revocation of leave under Clause 12 of the Letters Patent, alleging that the suit essentially involved an adjudication of questions of title, possession, control, and management of land situated outside the jurisdiction of the Court. The Court refused to pass any interim order and observed that the plaint did not show that the registered power of attorney holder had acted contrary to the MoU or that the power of attorney had been revoked. The plaintiff filed an application for amendment of the plaint, seeking to add Mr. Narayan Das Bhattar as defendant no. 6 and introducing allegations of fraud, collusion, and connivance.
Finding of the Court:
The Court held that the suit as originally framed is a suit for land and lacks jurisdiction over the subject matter of the dispute. The application for revocation of leave under Clause 12 of the Letters Patent was allowed and the plaint was directed to be taken off the file and returned to the plaintiff for presentation before the appropriate Court. The application for amendment of the plaint was dismissed due to lack of jurisdiction.
Issues: The primary issue was whether the suit as originally framed was a suit for land and whether the Court had jurisdiction over the subject matter of the dispute. Additionally, the Court had to consider the application for amendment of the plaint and whether it could be entertained given the lack of jurisdiction.
Ratio Decidendi: The Court applied the tests laid down in Debendra Nath Chwdhury v. Southern Bank Ltd. AIR 1960 Cal 626 and Smt. Saroj Agarwal & Ors. Vs. Mohanlal Seal & Ors. 2003 (2) WBLR (Cal) 42 to determine if the suit was a suit for land. It held that if the primary object and dominant feature of the plaint is an adjudication of a right, title, or interest in an immovable property situated outside the jurisdiction of the Court, the Court has no jurisdiction to entertain the suit. The Court also considered the application for amendment of the plaint and held that it could not be entertained due to lack of jurisdiction.
Final Decision: The application for revocation of leave under Clause 12 of the Letters Patent was allowed, and the plaint was directed to be taken off the file and returned to the plaintiff for presentation before the appropriate Court. The application for amendment of the plaint was dismissed due to lack of jurisdiction.
For the Petitioner: Mr. S.N. Mookherjee, Sr. Adv., Mr. Sabyasachi Chowdhury, Adv.
For the Respondents: Mr. Surojit Nath Mitra, Sr. Adv., Mr. Nirmalya Dasgupta, Adv., Mr. Srinanda Bose, Adv., Mr. Pritha Basu, Adv., Mr. Aryaa Chatterjee, Adv.
Soumen Sen, J.
1. Both the applications are taken up for hearing and disposed of by this common order.
2. The defendant Nos.1, 2 and 3 have filed an application being G.A. No.1701 of 2017 for revocation of leave under Clause 12 of the Letters Patent.
3. Subsequently, the plaintiff has filed an application being G.A. No.2110 of 2017 for amendment of plaint.
4. The basis of the application for revocation is that the suit is essentially a suit for land and, accordingly, this Court has no territorial jurisdiction to try, receive and adjudicate the claim of the plaintiff.
5. In order to appreciate the objection raised by the applicant-defendants, it is necessary to consider the nature of the suit and the reliefs claimed in the suit.
6. By a Memorandum of Understanding (MoU) dated 16th November, 2016, the defendant nos.1, 2 and 3 granted short term financial accommodation to the defendant no.4 for a sum of Rs.3.25 crores. In consideration of the defendants agreeing to grant such loan, the plaintiff had agreed to execute a deed of guarantee and also agreed to create equitable mortgage of its property at Sankrail in the district of Howrah. The said MoU was alleged to have been executed at the office of the defendant no.1 at 33, Brabourne Road, 7th Floor, within the jurisdiction of this Court. The plaintiff as guarantor had mortgaged the said property by depositing the title deeds of the said property with the defendant nos.1, 2 and 3 at the aforesaid office. On 21st April, 2017 the plaintiff received an undated letter written by the defendant nos.1, 2 and 3 at its office at 143, Canning Street, Kolkata- 700 001 within the jurisdiction of this court addressed to the plaintiff and the defendant no.4 alleging that the defendant no.4 had committed default of repayment of a sum of Rs.3.25 crores and, as a consequence whereof, the said defendant nos.1, 2 and 3 are entitled to appoint security guards over the said property and enforce the security interest in the property by conveying the said property in favour of the defendant nos.1, 2 and 3 or their nominees. It was also alleged that the said defendant had executed and registered a deed of conveyance conveying the said property in favour of their nominee, being the defendant no.5 residing at Salt Lake, outside the jurisdiction of this Court for a consideration of Rs.3.25 crores as per the MoU and have taken symbolic possession of the said property. The said conveyance was alleged to have been done by utilizing a registered special power of attorney executed by the plaintiff in favour of one Mr. Narayan Das Bhattar empowering him to sign and execute any deed of sale or conveyance in respect of the said property. In the said communication it was further alleged that while the debts to the extent of the principal amount borrowed by the defendant no. 4 stood discharged, there were other amounts due and payable on account of alleged interest and the plaintiff was asked to immediately give peaceful possession of the said property in default whereof the plaintiff was held liable to pay damages, compensation and other charges.
7. The plaintiff alleged that even assuming but not admitting that the defendant no. 4 had failed and neglected to pay the principal amount of Rs. 3.25 crores, the plaintiff as guarantor had the right to repay the said amount towards discharge of his obligation and under the MoU redeem the mortgage. The plaintiff was never served with any notice about alleged default committed by the defendant no. 4 and as such was completely unaware of the same. Consequently, the plaintiff also could not exercise its rights and/or obligations as a guarantor as envisaged in the MoU. It was further alleged by the plaintiff that even assuming that there was default on the part of the defendant no. 4, the defendant nos. 1, 2 and 3 could not have enforced the mortgage without giving an opportunity to the plaintiff as the guarantor to redeem the mortgage. The right of the plaintiff to redeem
