The seminal issue is whether on the factual score
which has been exposited, the application filed under
Section 9 of the 1996 Act before the High Court of Bombay
can be regarded as a money claim. On a studied scrutiny of
the agreement and the MoU it is clear as day that the
development agreement indubitably had created certain
interests in the land in favour of the appellant. The
assertions made in the application along with the relief
clause when read in entirety and appreciated in a holistic
manner, it becomes luminescent that the core dispute
pertains to possession of the land, for the appellant claims
to be in exclusive possession and the respondent, per
contra, has asseverated that it had taken over possession.
It can irrefragably be stated that any order passed under
Section 9 of the 1996 Act will have the impact on the land.
It is difficult to accede to the submission that it will not
conceptually fall within the category of “suit for land” as
engrafted under Clause 12 of the Letters Patent. It is clearly
a dispute with regard to the possession which is evincible
from the correspondences and the averments made in the
application preferred under Section 9 of the 1996 Act.
Thus, there has to be determination as regards possession
and impliedly issue of direction for recovery of possession.
Hence, the conclusion arrived at by the Division Bench on
the basis of the scrutiny of documents that the dispute is
embedded with regard to the possession of the land because
the fundamental claim pertains to certain constructed space
on the land and, therefore, it would conceptually fall within
the conception of “suit for land” appearing in Clause 12 of25
the Letters Patent is unexceptionable. Prayer (a) quoted
above seeks restraint by a temporary order or injunction
from entering upon the property. It is difficult to accept the
submission that it is a money claim and, therefore, the
Bombay High Court would also have the territorial
jurisdiction and accordingly we unhesitatingly repel the
same.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4267 OF 2015
[Arising out of SLP(C) No. 11215 OF 2015]
Sumer Builders Pvt. Ltd. .
V
Narendra Gorani
Citation: 2016(5) MHLJ289
The instant appeal is directed against the judgment
and order dated 10.03.2015 passed by the Division Bench
of the High Court of Judicature at Bombay in Appeal No.
572 of 2013 whereby it has concurred with the view
expressed by the learned Single Judge in Chamber
Summons No. 720/2013 in Arbitration Petition No.
799/2013 dated 10.10.2013 whereunder the learned Single2
Judge had revoked the leave granted by the court under
Clause 12 of the Letters Patent to file a petition under
Section 9 of the Arbitration and Conciliation Act, 1996 (for
brevity, “the 1996 Act”).
2. The facts which are essential to be stated are that the
parties to the lis entered into an agreement on 28.2.2008 for
development of the land of the respondent. As per the said
agreement, the appellant was required to develop a
residential project and/or commercial complex and/or
multiplex and/or hotels and/or malls etc. as permissible in
law. The respondent had handed over the vacant
possession of the land to enable the appellant to start the
development work. Clause 13 of the development
agreement contains an arbitration clause whereby the
parties had agreed to refer the matter in respect of any
difference or dispute between them with regard to the
construction or the terms of the development agreement or
with regard to the project undertaken for arbitration. A
Memorandum of Understanding (MoU) was entered into
between the parties, which stipulates that the developer was
required construct a township project consisting of one3
commercial building, 11 residential wings in four buildings
and one club house under licence from the Indore Municipal
Corporation. It was further agreed that if the MoU was
terminated, the developer would not have any right, title or
interest in the township project and would be required to
remove his employees and machineries from the land.
Clause 13 of the developer agreement was also incorporated
in the MoU.
3. As disputes arose with regard to payment, the
respondent terminated the MoU, forfeited the security
deposit and invoked the arbitration clause by issuing a
notice through his Advocate on 6.6.2013. The appellant
herein replied to the termination notice by stating that it
had carries out substantial construction on the property by
constructing three buildings and by taking many other
steps. It was also stated by the appellant that the
environmental clearance certificate for the project was not
obtained by the respondent and, therefore, further work was
stopped. The appellant required the respondent to perform
his part of the contract in obtaining the requisite4
environmental clearance, execute irrevocable power of
attorney, refund the part of the amount payable and pay
interest on the security deposit.
4. As the factual matrix would undrape, when arbitration
was demanded by the respondent, the appellant on
16.7.2013 replied that the arbitration tribunal had to be in
Mumbai. It was also put forth that it was in physical
possession of the property and its construction material,
machinery, office equipments and other equipments were at
the site. At this stage, the appellant moved the High Court
of Bombay for grant of leave under Clause 12 of the Letters
Patent by filing an application under Section 9 of the 1996
Act asserting that the courts at Bombay have the territorial
jurisdiction, and accordingly leave was granted. The
respondent after entering appearance filed an application
praying for revocation of leave. While seeking revocation of
leave, it was contended by the respondent that dispute
pertains to the land which is situate at Indore; that the
development agreement and the MoU had been executed at
Indore where the immoveable property is situated; and that5
the dispute fundamentally is for right and possession over
the land, hence, the court where the land is situated has the
territorial jurisdiction in respect of the arbitration or any
application to be filed under the 1996 Act.
5. The learned Single Judge scanned the anatomy of
Clause 12 of the Letters Patent and various decisions of the
High Court of Bombay and referred to the decision in Moolji
Jaitha & Co. v. Khandesh Spinning & Weaving Mills
Co. Ltd.1
, adverted to the issue relating to what would
constitute cause of action in the obtaining factual matrix,
analysed the decision of the Bombay High Court in Shiv
Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass &
Ors.2
, and referred to Adcon Electronics Pvt. Ltd. v.
Daulat and Anr.3
and eventually came to hold as follows:-
“... the Petitioner has put up its machinery, staff
for the construction and the ultimate
construction upon the land. Several buildings
have been constructed fully or in part. The
parties are entitled to a part of the construction
each as per the directions of the development
agreement or amount in cash as per the MOU.
The development work is in progress. An order
for protection of the property pending the
arbitration would involve the land itself. The
1
AIR 1950 FC 83
2
AIR 1952 Bom. 365
3
(2001) 7 SCC 6986
dispute has nothing to do with the rights of the
parties in personam only....”
And again:-
“... The disputes in the development agreement
are closely connected with the land, the
possession of which is disputed by the parties.
The suit is a suit for land. It would have to be
filed in Indore where the land is situate.”
6. Being of this view, the learned Single Judge revoked
the leave that was earlier granted. Being dissatisfied with
the aforesaid order, the appellant preferred an appeal before
the Division Bench. Before the Division Bench it was
contended that the appellant was in possession of the land
and the possession shall remain with it till the completion of
the entire project and he was entitled to refund of security
deposit.
7. In essence, it was urged that the application preferred
under Section 9 of the 1996 Act was tenable before the High
Court of Bombay and there was no justification to revoke
the leave. The Division Bench referred to certain clauses of
the agreement and the clauses from the MoU and the
correspondences between the parties, the assertions made7
in the Section 9 petition and the relief sought therein,
addressed to the import of Clause 12 of the Letters Patent
and what meaning had been given to the “suit for land” in
Moolji Jaitha (supra) by analyzing various passages, culled
out the principles stated in Adcon Electronics (supra), took
note of the fact that the development agreement and the
MoU had been executed at Indore, the statement of claim
and the counter claim filed by the parties before the learned
arbitrator who has already entered into reference and in the
ultimate eventuality opined thus:-
“... In the present case, we are of the vie that the
disputes between the parties hereto in relation to
the development agreement dated 28 February
2008 and the MOU dated 8 June 2012 are of
such a nature that they are rooted to the land.
The disputes are not such that they relate only to
the execution of any document and/or specific
performance thereof simplicitor. The disputes
relate to possession of the said land which is
outside the jurisdiction of the Court as also
regarding the percentage of the parties rights,
title and interest in the said land and/or their
entitlement to a sizable portion of the constructed
space thereon. These disputes would certainly
fall within the expression “suit for land”
appearing in Clause XII of the Letters Patent.”
Expressing thus, the Division Bench declined to
interfere with the order passed by the learned Single Judge.8
8. We have heard Mr. Shekhar Naphade, learned senior
counsel for the appellant and Mr. Shyam Divan, learned
senior counsel for the respondent.
9. Criticizing the orders passed by the High Court, it is
submitted by Mr. Naphade, learned senior counsel that the
learned Single Judge as well as the Division Bench has
fallen into serious error in their appreciation of the clauses
in the agreement and the relief sought inasmuch as it was a
money claim and when the amount was paid at Mumbai,
the High Court of Mumbai had the jurisdiction. He has
drawn our attention to various clauses in the agreement to
which we shall refer to in the course of our delineation. In
essence, his submission is that it is basically a claim
relating to money and it has nothing to do with the land
and, therefore, the analysis made by the High Court is
fundamentally fallacious.
10. Mr. Divan, learned senior counsel appearing for the
respondent countering the aforesaid submissions would
contend that the cause of action had arisen at Indore regard
being had to the fact that the land is situated at Indore and9
the agreement in question and the MoU were executed at
Indore. It is his further submission that the order passed
by the Division Bench is absolutely defensible inasmuch as
it is a claim for land and in the backdrop of prayer under
Section 9 of the 1996 Act, there could not have been any
other conclusion than what has been expressed by the High
Court that it has no territorial jurisdiction to deal with the
controversy.
11. To appreciate the controversy, it is appropriate to refer
to Clause 12 of the Letters Patent, which reads as follows:-
“12. Original jurisdiction as to suits – And we do
further ordain that the said High Court of
Judicature at Bombay, in the exercise of its
ordinary original civil jurisdiction, shall be
empowered to receive, try and determine suits of
every description, if, in the case of suits for land
or other immovable property such land or
property shall be situated, or in all other cases if
the cause of action shall have arisen, either
wholly, or in case the leave of the Court shall
have been first obtained, in part, within the local
limits of the ordinary original jurisdiction of the
said High Court, or if the defendant at the time of
the commencement of the suit shall dwell or
carry on business, or personally work for gain,
within such limits; except that the said High
Court shall not have such original jurisdiction in
cases falling within the jurisdiction of the Small
Cause Court at Bombay, in which the debt or
damage, or value of property sued for does not10
exceed one hundred rupees.”
12. The said clause fell for interpretation in Adcon
Electronics (supra), wherein the Court stated thus:-
“Thus, it is clear that under clause 12 of the
Letters Patent, the High Court in exercise of its
ordinary original jurisdiction will have power to
receive, try and determine: (1) suits for land or
other immovable property if such property is
situated within the local limits of original
jurisdiction of the High Court; or (2) all other
cases (a) if the cause of action has arisen wholly
within the local limits of the ordinary original
jurisdiction of the High Court; (b) if prior leave of
the Court has been obtained and the cause of
action has arisen in part within the local limits of
the ordinary original jurisdiction of the High
Court; or (c) if the defendant dwells or carries on
business or personally works for gain within such
limits.”
13. Be it noted under Section 120 of the Code of Civil
Procedure, 1908 (for short, “CPC”), Sections 16, 17 and 20
are not applicable to the High Court in original civil
jurisdiction. Thus, as far as the Bombay High Court is
concerned, it is Clause 12 of the Letters Patent that would
govern the controversy.
14. In Adcon Electronics (supra), the two-Judge Bench
referred to the divergence of opinion in Moolji Jaitha11
(supra), the Full Bench decision of the High Court of Madras
in P.M.A. Velliappa Chettiar v. Saha Govinda Doss4
,
Division Bench judgment of Calcutta High Court in
Debendra Nath Chowdhury v. Southern Bank Ltd.5
and
ruled thus:-
“From the above discussion it follows that a “suit
for land” is a suit in which the relief claimed
relates to title to or delivery of possession of land
or immovable property. Whether a suit is a “suit
for land” or not has to be determined on the
averments in the plaint with reference to the
reliefs claimed therein; where the relief relates to
adjudication of title to land or immovable
property or delivery of possession of the land or
immovable property, it will be a “suit for land”.
We are in respectful agreement with the view
expressed by Mahajan, J. in Moolji Jaitha case.”
15. It will be appropriate to reproduce what Justice
Mahajan had observed in Moolji Jaitha (supra):-
“If an attempt is made to find a comprehensive
definition of the phrase, it will eventually be
discovered that it has created further
complications. I therefore content myself by
saying that where the nature of the suit is such
that in substance it involves a controversy about
land or immovable property and the court is
called upon to decide conflicting claims to such
property and a decree or order is prayed for
which will bring about a change in the title to it,
that suit can be said to be in respect of land or
immovable property; but where incidentally in a
4
AIR 1929 Mad. 721
5
AIR 1960 Cal. 62612
suit, the main purpose of which or the primary
object of which is quite different, some relief has
to be given about land, the title to it not being in
dispute in the real sense of the term, then such a
suit cannot fall within the four corners of this
expression.”
16. He had further added:-
“In my opinion, if the suit is for specific
performance and a decree for possession of the
land sold is claimed, such a suit would certainly
be a suit for land; but if the suit is simpliciter for
specific performance, i.e., for the enforcement of
the contract of sale and for execution of a
conveyance, in that event there can be no good
ground for holding that such a suit is a suit for
determination of title to land or that the decree in
it would operate on the land.”
17. Recently, in Excel Dealcomm Pvt. Ltd. v. Asset
Reconstruction Co. (India) Ltd.6
, the controversy had
arisen from the High Court of Calcutta. The two-Judge
Bench addressed to the issue “what is the suit for land”,
and observed as under:-
“A suit for land is a suit in which the relief
claimed relates to the title or delivery of
possession of land or immovable property [see
Adcon Electronics (P) Ltd. v. Daulat]. Further, it is
an established rule that to determine whether it
is a suit for land, the court will look into barely
the plaint and no other evidence (Indian Mineral
& Chemicals Co. v. Deutsche Bank7
). If by the
6
(2015) 8 SCC 219
7
(2004) 12 SCC 37613
averments in the plaint and prayers therein, it
appears that the suit is one for land, it shall be
so held and if it does not so appear, then the suit
shall continue under leave granted under Clause
12.”
18. Be it noted, in the said case suit was filed for specific
performance of the agreement which contemplated sale of
property as has been described under Section 13 of the
SARFAESI Act, 2002. The issue that arose before the Court
is as follows:-
“In the present case, a suit was filed for the
specific performance of the agreement which
contemplated the sale of property, as has been
described in Para 1 under Section 13 of the
SARFAESI Act in terms of the Rules. The
question with respect to Clause 12 of the Letters
Patent in the present case is that whether the
present suit is suit for land.”
19. The Court referred to the relief clause, the authority in
Adcon Electronics (supra) and came to hold that:-
“It may be noted that the sale certificate sought
under the prayer requires the delivery of
possession of the suit property. Thus, we find
that the prayer for delivery of possession was an
implicit one in the present case. The prayer as
sought in the plaint could not have been granted
without the delivery of possession of the suit
property as the sale certificate itself contemplates
the delivery of the immovable property. Thus, in
view of this we find that Adcon Electronics would
not apply as there was a prayer for delivery of14
possession in the present case. Therefore, we
hold that the present suit was indeed a suit for
land.”
Being of this view, it concurred with the opinion
expressed by the High Court of Calcutta that it did not have
the territorial jurisdiction.
20. The obtaining factual matrix has to be appreciated on
the basis of the principles that have been enunciated in the
authorities we have referred to hereinabove. It has to be
borne in mind that it was an application under Section 9 of
the 1996 Act. Section 9 of the 1996 Act reads as follows:-
“9. Interim measures, etc. by Court.—A party
may, before or during arbitral proceedings or at
any time after the making of the arbitral award
but before it is enforced in accordance with section
36, apply to a court—
(i) for the appointment of a guardian for a minor
or a person of unsound mind for the purposes of
arbitral proceedings; or
(ii) for an interim measure of protection in respect
of any of the following matters, namely:—
(a) the preservation, interim custody or sale of
any goods which are the subject-matter of the
arbitration agreement;
(b) securing the amount in dispute in the arbitration;15
(c) the detention, preservation or inspection of
any property or thing which is the subjectmatter
of the dispute in arbitration, or as to
which any question may arise therein and authorising
for any of the aforesaid purposes any
person to enter upon any land or building in
the possession of any party, or authorising any
samples to be taken or any observation to be
made, or experiment to be tried, which may be
necessary or expedient for the purpose of obtaining
full information or evidence;
(d) interim injunction or the appointment of a
receiver;
(e) such other interim measure of protection as
may appear to the court to be just and convenient,
and the Court shall have the same power for
making orders as it has for the purpose of, and in
relation to, any proceedings before it.”
21. There can be no cavil over the proposition that Section
9 petition can be entertained in the absence of arbitral
proceeding. Be that as it may, it is imperative to scan the
relevant clauses of the agreement and carefully x-ray the
clauses of the MoU and also critically scrutinise the relief
sought in the petition preferred under Section 9 of the Act.
22. Mr. Naphade, learned senior counsel has drawn our
attention to the recital part of the agreement and certain16
other clauses. The recital part reads as follows:-
“AND WHEREAS the Owner and Developer have
agreed to develop the said land by entering in a
Development Agreement, by which the owner
shall get 40% of the Developed Saleable area and
Developer shall get 60% of the Developed
Saleable Area in the proposed project irrespective
of its being residential/commercial or hotels or
Multiplex or mixture of the either etc.”
23. Clause 3 of the agreement deals with the security
amount which stipulates that for developing the said land of
the owner, the developer shall give a “Refundable Security
Deposit” of Rs.20 crores to the owner. A schedule was fixed
for payment of the said amount. Clause 4 of the agreement
stipulates what events would take place after execution of
the development agreement. It basically relates to certain
obligations to be performed by the parties.
24. Clause 5(ii) of the agreement on which emphasis has
been laid is to the following effect:-
“5. (ii) The Developer and the Owner shall at all
times thereafter be entitled to receive money, take
bookings, enter into leasing agreements, sell,
assign any or all portions of the proposed project
falling under his share, and owner hereby give
express consent for the same to the Developers.”
25. Clause 7 deals with refund of security deposit. Clause17
7D from which inspiration has been drawn by the learned
senior counsel for the appellant reads as follows:-
“7D. It is agreed between the parties hereto that
if the Owner fails to refund the security deposit
and the parties hereto decides to sale the units
and/or blocks then in that event the Developer
shall be entitled to recover refundable security
deposit from the sale of Units and/or Blocks of
the Owner’s share and in the circumstances the
Developers shall be entitled to receive 60% and
the Owner shall be entitled to receive 40% of the
sale price of the Units and/or Blocks of the
Owner’s share and the said 60% price will be
adjusted towards refundable security deposit.”
26. Clause 9 deals with the responsibility of the developer.
Clause 10 deals with the joint responsibilities of the owner
and the developer. The said clause reads as follows:-
“10. Joint Responsibility of Owners and
Developers:-
(i) To provide cooperation to each other for
sanctioning the plans of the project with all
required permissions and obtaining occupation
certificate for handing over possession of the
tenements to the Purchasers of Tenements.
(ii) To clear all the dues of authorities
concerned with respect of plot under
development.
(iii) To convey the land with building to the
societies and/or condominium or apex body after
completion of project as per rules applicable.”18
27. At this juncture, it is relevant to refer to certain
aspects which have been enumerated in the MoU. The
recital in the MoU is as follows:-
“& Whereas ‘YES BANK’ (hereinafter referred to
as the ‘SAID BANK’) has principally agreed to
grant loan of Rs.85 crores to the Developers for
the development of the said Township for which
purpose the Developers are required to mortgage
the Land and Development of the said Township
to the SAID BANK in lieu of which the SAID
BANK has agreed to disburse construction
related loan which shall be disbursed as per the
progress of the project.
& Whereas as the Development Agreement did
not provide for mortgage of the Land of the Owner
and for availing the facility of loan the Developer
are required to mortgage the entire project the
Developer has proposed to pay a lump sum
amount of Rs.137 crores to the Owner in lieu of
his share in the said Township for which
consideration the Owner has agreed to permit the
Developer to avail loan facility from the said Bank
for the development of the Said Township and to
release/transfer his share in the said Township
in favour of the Developer.”
28. Clause 13 of the agreement refers to resolution of
disputes. We quote the said clause:-
“13. RESOLUTION OF DISPUTES:-
That in case of any difference or dispute between
the parties with regard to the meaning of
construction of this MoU or regarding any terms
of the Development Agreement or with regard to19
the project undertaken under this MoU or
Development agreement to be executed between
the parties, the same shall be resolved by
arbitration in conformity with the provisions of
the Arbitration and Conciliation Act, 1996.”
29. In this context reference to the reliefs prayed for under
Section 9 petition gain significance. Prayers (a) and (b) of
the paragraph relating to relief sought read as under:-
“(a) pending the hearing and final of the proposed
arbitral proceedings and for a period of sixty days
after the award therein, the respondent by
himself and through his servant and or his agent
and/or in any manner, howsoever, be restrained
by a temporary order or injunction from entering
upon the property bearing Survey No. 1487/1
and 1487/2 at Kasba, Indore, Patwari Halka No.
15/2, Tahsil & District – Indore, Madhya
Pradesh, and from dealing with or moving the
petitioners’ construction machinery on the said
property and from disturbing or interfering with
the Petitioners possession thereof in any manner;
(b) pending and hearing and final disposal of the
proposed arbitral proceedings and for a period of
sixty days after the award therein, the
Respondent by himself and or through his
servants and/or his agents, be restrained by a
temporary order of injunction from or in any
manner directly or indirectly disposing off,
alienating, encumbering or creating third party
rights in any manner whatsoever in the property
bearing Survey No. 1487/1 and 1487/2 at Kasba,
Indore, Patwari Halka No. 15/2, Tahsil & District
– Indore, Madhya Pradesh, and from disturbing
or interfering with the Petitioners possession
thereof in any manner.” 20
30. At this stage, we are obligated to state that the High
Court has referred to the correspondences between the
parties. It has referred to the letter dated 19.6.2013 in
extenso. In the said letter it was mentioned that as the
owner of the land had terminated the development
agreement and the MoU, he had taken over the entire
physical and actual possession of the said land and the
developer was called upon to remove its machinery and
construction material lying upon the said land. The said
letter was replied to vide letter dated 16.7.2013 refuting the
fact that the physical possession of the land had been taken
over by the land owner and stating that the possession was
still with the developer. The Division Bench has extensively
reproduced from the petition preferred under Section 9 of
the 1996 Act. We think it apt to reproduce the same:-
“10. The Petitioners have shocked to receive
letter dated 6 June 2013, from Respondent’s
Advocates, informing the Petitioner that the
Respondent had terminated the MOU and the
Development Agreement with immediate effect
and had allegedly taken over the possession of
the Township in terms of the MOU. By the said
letter, the petitioners were further informed that
the Security Deposit of Rs.20 crores stood21
forfeited. The petitioners were informed that
without prejudice to the termination, the
respondent made a demand of payment of Rs.71
crores along with interest thereon. A copy of the
letter dated 6 June 2013 is annexed and marked
Exhibit-F hereto.
xxxxx xxxxx xxxxx
14. The respondent, by Advocates letter dated 30
June 2013 sought to invoke the Arbitration
Clause under the Development Agreement and
the Memorandum of Understanding. By the said
letter, the petitioners were informed that the
entire physical and actual possession was
allegedly already taken over by the respondent.
This is a false statement. The petitioners were
further called upon to remove the machinery and
construction material. Hereto annexed and
marked Exhibit-I is a copy of the respondent’s
Advocates letter dated 30 June 2013.
xxxxx xxxxx xxxxx
17. The petitioners submit that they had
completed substantial work by completing
Building B-1, B-2 and B-3 (where only top slabs
are pending), construction of five slabs of
Building C-1, commencing digging and footing
work of Building A-1. The petitioners’ machinery
and labour are at site. The petitioners are in
possession of the site. Now, the respondent has
suddenly demanded a sum of Rs.71 crores,
allegedly due to the respondent, under the MOU
dated 8 June 2012. Though not entitled, the
respondent has sought to forfeit the security
deposit of Rs. 20 crores, in accordance with the
MOU.
18. In the circumstances, the petitioners submit
that the petitioners are entitled to, pending an22
adjudication in the proposed Arbitral proceedings
and for a period of sixty (60) days after the award
therein, for an order of injunction, restraining the
respondent by himself or through his servants or
agents from entering upon the property, subject
matter of the Development Agreement and from
dealing with and moving the machinery of the
petitioners used in construction activity and from
disturbing or interfering with the petitioners
possession thereof in any manner.”
31. After discussing the facts in entirety, the Division
Bench has opined thus:-
“... The development agreement also stipulated
that the appellant was entitled to possession of
the said land and accordingly the respondent, by
a separate possession receipt dated 28 February
2008 handed over to the appellant possession of
the said land which is the subject matter of the
development agreement. Thereafter, the parties
entered into a MOU dated 8 June 2012 which
inter alia recited that the appellant was to
construct the township project consisting of
residential and commercial buildings and a club
house and further that the respondent would be
paid a sum of Rs.137 crores in place of its 40%
share under the development agreement. As
disputes arose between the parties, the said
development agreement and the MOU were
terminated by the respondent by its Advocate’s
letter dated 6 June 2013 and the respondent
invoked arbitration. It is pertinent to note that in
paragraph 9 of the said termination letter, the
respondent has specifically stated that as on that
date (6 June 2013), the respondent had taken
over the possession and absolute ownership of
the said township including the structures
thereon, in accordance with the terms of the23
MOU. This included the construction put up by
the appellant on the said land. In the said letter,
at paragraphs 11 and 12, the respondent
reiterated that it was the owner of the said land.
32. And thereafter the Division Bench proceeded to
analyse the letter dated 30.6.2013 and on that basis
observed that:-
“... This letter of the respondent further stated
that since the Respondent had terminated the
development agreement and MoU, the respondent
had taken over the entire physical and actual
possession of the said land and in view thereof
called upon the Appellant to remove its
machinery and construction material from the
said land. Again, by its letter dated 16 July,
2013, the Appellant once again denied that the
physical possession of the said land had been
taken over by the Respondent as alleged in its
letters dated 6 June 2013 and 30 June 2013
respectively.”
33. The seminal issue is whether on the factual score
which has been exposited, the application filed under
Section 9 of the 1996 Act before the High Court of Bombay
can be regarded as a money claim. On a studied scrutiny of
the agreement and the MoU it is clear as day that the
development agreement indubitably had created certain
interests in the land in favour of the appellant. The
assertions made in the application along with the relief
clause when read in entirety and appreciated in a holistic
manner, it becomes luminescent that the core dispute
pertains to possession of the land, for the appellant claims
to be in exclusive possession and the respondent, per
contra, has asseverated that it had taken over possession.
It can irrefragably be stated that any order passed under
Section 9 of the 1996 Act will have the impact on the land.
It is difficult to accede to the submission that it will not
conceptually fall within the category of “suit for land” as
engrafted under Clause 12 of the Letters Patent. It is clearly
a dispute with regard to the possession which is evincible
from the correspondences and the averments made in the
application preferred under Section 9 of the 1996 Act.
Thus, there has to be determination as regards possession
and impliedly issue of direction for recovery of possession.
Hence, the conclusion arrived at by the Division Bench on
the basis of the scrutiny of documents that the dispute is
embedded with regard to the possession of the land because
the fundamental claim pertains to certain constructed space
on the land and, therefore, it would conceptually fall within
the conception of “suit for land” appearing in Clause 12 of25
the Letters Patent is unexceptionable. Prayer (a) quoted
above seeks restraint by a temporary order or injunction
from entering upon the property. It is difficult to accept the
submission that it is a money claim and, therefore, the
Bombay High Court would also have the territorial
jurisdiction and accordingly we unhesitatingly repel the
same.
34. Resultantly, we find no substance in the appeal and
accordingly the same stands dismissed. There shall be no
order as to costs.
.............................J.
[Dipak Misra]
............................J.
[Prafulla C. Pant]
New Delhi
October 15, 2015
Print Page
which has been exposited, the application filed under
Section 9 of the 1996 Act before the High Court of Bombay
can be regarded as a money claim. On a studied scrutiny of
the agreement and the MoU it is clear as day that the
development agreement indubitably had created certain
interests in the land in favour of the appellant. The
assertions made in the application along with the relief
clause when read in entirety and appreciated in a holistic
manner, it becomes luminescent that the core dispute
pertains to possession of the land, for the appellant claims
to be in exclusive possession and the respondent, per
contra, has asseverated that it had taken over possession.
It can irrefragably be stated that any order passed under
Section 9 of the 1996 Act will have the impact on the land.
It is difficult to accede to the submission that it will not
conceptually fall within the category of “suit for land” as
engrafted under Clause 12 of the Letters Patent. It is clearly
a dispute with regard to the possession which is evincible
from the correspondences and the averments made in the
application preferred under Section 9 of the 1996 Act.
Thus, there has to be determination as regards possession
and impliedly issue of direction for recovery of possession.
Hence, the conclusion arrived at by the Division Bench on
the basis of the scrutiny of documents that the dispute is
embedded with regard to the possession of the land because
the fundamental claim pertains to certain constructed space
on the land and, therefore, it would conceptually fall within
the conception of “suit for land” appearing in Clause 12 of25
the Letters Patent is unexceptionable. Prayer (a) quoted
above seeks restraint by a temporary order or injunction
from entering upon the property. It is difficult to accept the
submission that it is a money claim and, therefore, the
Bombay High Court would also have the territorial
jurisdiction and accordingly we unhesitatingly repel the
same.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4267 OF 2015
[Arising out of SLP(C) No. 11215 OF 2015]
Sumer Builders Pvt. Ltd. .
V
Narendra Gorani
Citation: 2016(5) MHLJ289
The instant appeal is directed against the judgment
and order dated 10.03.2015 passed by the Division Bench
of the High Court of Judicature at Bombay in Appeal No.
572 of 2013 whereby it has concurred with the view
expressed by the learned Single Judge in Chamber
Summons No. 720/2013 in Arbitration Petition No.
799/2013 dated 10.10.2013 whereunder the learned Single2
Judge had revoked the leave granted by the court under
Clause 12 of the Letters Patent to file a petition under
Section 9 of the Arbitration and Conciliation Act, 1996 (for
brevity, “the 1996 Act”).
2. The facts which are essential to be stated are that the
parties to the lis entered into an agreement on 28.2.2008 for
development of the land of the respondent. As per the said
agreement, the appellant was required to develop a
residential project and/or commercial complex and/or
multiplex and/or hotels and/or malls etc. as permissible in
law. The respondent had handed over the vacant
possession of the land to enable the appellant to start the
development work. Clause 13 of the development
agreement contains an arbitration clause whereby the
parties had agreed to refer the matter in respect of any
difference or dispute between them with regard to the
construction or the terms of the development agreement or
with regard to the project undertaken for arbitration. A
Memorandum of Understanding (MoU) was entered into
between the parties, which stipulates that the developer was
required construct a township project consisting of one3
commercial building, 11 residential wings in four buildings
and one club house under licence from the Indore Municipal
Corporation. It was further agreed that if the MoU was
terminated, the developer would not have any right, title or
interest in the township project and would be required to
remove his employees and machineries from the land.
Clause 13 of the developer agreement was also incorporated
in the MoU.
3. As disputes arose with regard to payment, the
respondent terminated the MoU, forfeited the security
deposit and invoked the arbitration clause by issuing a
notice through his Advocate on 6.6.2013. The appellant
herein replied to the termination notice by stating that it
had carries out substantial construction on the property by
constructing three buildings and by taking many other
steps. It was also stated by the appellant that the
environmental clearance certificate for the project was not
obtained by the respondent and, therefore, further work was
stopped. The appellant required the respondent to perform
his part of the contract in obtaining the requisite4
environmental clearance, execute irrevocable power of
attorney, refund the part of the amount payable and pay
interest on the security deposit.
4. As the factual matrix would undrape, when arbitration
was demanded by the respondent, the appellant on
16.7.2013 replied that the arbitration tribunal had to be in
Mumbai. It was also put forth that it was in physical
possession of the property and its construction material,
machinery, office equipments and other equipments were at
the site. At this stage, the appellant moved the High Court
of Bombay for grant of leave under Clause 12 of the Letters
Patent by filing an application under Section 9 of the 1996
Act asserting that the courts at Bombay have the territorial
jurisdiction, and accordingly leave was granted. The
respondent after entering appearance filed an application
praying for revocation of leave. While seeking revocation of
leave, it was contended by the respondent that dispute
pertains to the land which is situate at Indore; that the
development agreement and the MoU had been executed at
Indore where the immoveable property is situated; and that5
the dispute fundamentally is for right and possession over
the land, hence, the court where the land is situated has the
territorial jurisdiction in respect of the arbitration or any
application to be filed under the 1996 Act.
5. The learned Single Judge scanned the anatomy of
Clause 12 of the Letters Patent and various decisions of the
High Court of Bombay and referred to the decision in Moolji
Jaitha & Co. v. Khandesh Spinning & Weaving Mills
Co. Ltd.1
, adverted to the issue relating to what would
constitute cause of action in the obtaining factual matrix,
analysed the decision of the Bombay High Court in Shiv
Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass &
Ors.2
, and referred to Adcon Electronics Pvt. Ltd. v.
Daulat and Anr.3
and eventually came to hold as follows:-
“... the Petitioner has put up its machinery, staff
for the construction and the ultimate
construction upon the land. Several buildings
have been constructed fully or in part. The
parties are entitled to a part of the construction
each as per the directions of the development
agreement or amount in cash as per the MOU.
The development work is in progress. An order
for protection of the property pending the
arbitration would involve the land itself. The
1
AIR 1950 FC 83
2
AIR 1952 Bom. 365
3
(2001) 7 SCC 6986
dispute has nothing to do with the rights of the
parties in personam only....”
And again:-
“... The disputes in the development agreement
are closely connected with the land, the
possession of which is disputed by the parties.
The suit is a suit for land. It would have to be
filed in Indore where the land is situate.”
6. Being of this view, the learned Single Judge revoked
the leave that was earlier granted. Being dissatisfied with
the aforesaid order, the appellant preferred an appeal before
the Division Bench. Before the Division Bench it was
contended that the appellant was in possession of the land
and the possession shall remain with it till the completion of
the entire project and he was entitled to refund of security
deposit.
7. In essence, it was urged that the application preferred
under Section 9 of the 1996 Act was tenable before the High
Court of Bombay and there was no justification to revoke
the leave. The Division Bench referred to certain clauses of
the agreement and the clauses from the MoU and the
correspondences between the parties, the assertions made7
in the Section 9 petition and the relief sought therein,
addressed to the import of Clause 12 of the Letters Patent
and what meaning had been given to the “suit for land” in
Moolji Jaitha (supra) by analyzing various passages, culled
out the principles stated in Adcon Electronics (supra), took
note of the fact that the development agreement and the
MoU had been executed at Indore, the statement of claim
and the counter claim filed by the parties before the learned
arbitrator who has already entered into reference and in the
ultimate eventuality opined thus:-
“... In the present case, we are of the vie that the
disputes between the parties hereto in relation to
the development agreement dated 28 February
2008 and the MOU dated 8 June 2012 are of
such a nature that they are rooted to the land.
The disputes are not such that they relate only to
the execution of any document and/or specific
performance thereof simplicitor. The disputes
relate to possession of the said land which is
outside the jurisdiction of the Court as also
regarding the percentage of the parties rights,
title and interest in the said land and/or their
entitlement to a sizable portion of the constructed
space thereon. These disputes would certainly
fall within the expression “suit for land”
appearing in Clause XII of the Letters Patent.”
Expressing thus, the Division Bench declined to
interfere with the order passed by the learned Single Judge.8
8. We have heard Mr. Shekhar Naphade, learned senior
counsel for the appellant and Mr. Shyam Divan, learned
senior counsel for the respondent.
9. Criticizing the orders passed by the High Court, it is
submitted by Mr. Naphade, learned senior counsel that the
learned Single Judge as well as the Division Bench has
fallen into serious error in their appreciation of the clauses
in the agreement and the relief sought inasmuch as it was a
money claim and when the amount was paid at Mumbai,
the High Court of Mumbai had the jurisdiction. He has
drawn our attention to various clauses in the agreement to
which we shall refer to in the course of our delineation. In
essence, his submission is that it is basically a claim
relating to money and it has nothing to do with the land
and, therefore, the analysis made by the High Court is
fundamentally fallacious.
10. Mr. Divan, learned senior counsel appearing for the
respondent countering the aforesaid submissions would
contend that the cause of action had arisen at Indore regard
being had to the fact that the land is situated at Indore and9
the agreement in question and the MoU were executed at
Indore. It is his further submission that the order passed
by the Division Bench is absolutely defensible inasmuch as
it is a claim for land and in the backdrop of prayer under
Section 9 of the 1996 Act, there could not have been any
other conclusion than what has been expressed by the High
Court that it has no territorial jurisdiction to deal with the
controversy.
11. To appreciate the controversy, it is appropriate to refer
to Clause 12 of the Letters Patent, which reads as follows:-
“12. Original jurisdiction as to suits – And we do
further ordain that the said High Court of
Judicature at Bombay, in the exercise of its
ordinary original civil jurisdiction, shall be
empowered to receive, try and determine suits of
every description, if, in the case of suits for land
or other immovable property such land or
property shall be situated, or in all other cases if
the cause of action shall have arisen, either
wholly, or in case the leave of the Court shall
have been first obtained, in part, within the local
limits of the ordinary original jurisdiction of the
said High Court, or if the defendant at the time of
the commencement of the suit shall dwell or
carry on business, or personally work for gain,
within such limits; except that the said High
Court shall not have such original jurisdiction in
cases falling within the jurisdiction of the Small
Cause Court at Bombay, in which the debt or
damage, or value of property sued for does not10
exceed one hundred rupees.”
12. The said clause fell for interpretation in Adcon
Electronics (supra), wherein the Court stated thus:-
“Thus, it is clear that under clause 12 of the
Letters Patent, the High Court in exercise of its
ordinary original jurisdiction will have power to
receive, try and determine: (1) suits for land or
other immovable property if such property is
situated within the local limits of original
jurisdiction of the High Court; or (2) all other
cases (a) if the cause of action has arisen wholly
within the local limits of the ordinary original
jurisdiction of the High Court; (b) if prior leave of
the Court has been obtained and the cause of
action has arisen in part within the local limits of
the ordinary original jurisdiction of the High
Court; or (c) if the defendant dwells or carries on
business or personally works for gain within such
limits.”
13. Be it noted under Section 120 of the Code of Civil
Procedure, 1908 (for short, “CPC”), Sections 16, 17 and 20
are not applicable to the High Court in original civil
jurisdiction. Thus, as far as the Bombay High Court is
concerned, it is Clause 12 of the Letters Patent that would
govern the controversy.
14. In Adcon Electronics (supra), the two-Judge Bench
referred to the divergence of opinion in Moolji Jaitha11
(supra), the Full Bench decision of the High Court of Madras
in P.M.A. Velliappa Chettiar v. Saha Govinda Doss4
,
Division Bench judgment of Calcutta High Court in
Debendra Nath Chowdhury v. Southern Bank Ltd.5
and
ruled thus:-
“From the above discussion it follows that a “suit
for land” is a suit in which the relief claimed
relates to title to or delivery of possession of land
or immovable property. Whether a suit is a “suit
for land” or not has to be determined on the
averments in the plaint with reference to the
reliefs claimed therein; where the relief relates to
adjudication of title to land or immovable
property or delivery of possession of the land or
immovable property, it will be a “suit for land”.
We are in respectful agreement with the view
expressed by Mahajan, J. in Moolji Jaitha case.”
15. It will be appropriate to reproduce what Justice
Mahajan had observed in Moolji Jaitha (supra):-
“If an attempt is made to find a comprehensive
definition of the phrase, it will eventually be
discovered that it has created further
complications. I therefore content myself by
saying that where the nature of the suit is such
that in substance it involves a controversy about
land or immovable property and the court is
called upon to decide conflicting claims to such
property and a decree or order is prayed for
which will bring about a change in the title to it,
that suit can be said to be in respect of land or
immovable property; but where incidentally in a
4
AIR 1929 Mad. 721
5
AIR 1960 Cal. 62612
suit, the main purpose of which or the primary
object of which is quite different, some relief has
to be given about land, the title to it not being in
dispute in the real sense of the term, then such a
suit cannot fall within the four corners of this
expression.”
16. He had further added:-
“In my opinion, if the suit is for specific
performance and a decree for possession of the
land sold is claimed, such a suit would certainly
be a suit for land; but if the suit is simpliciter for
specific performance, i.e., for the enforcement of
the contract of sale and for execution of a
conveyance, in that event there can be no good
ground for holding that such a suit is a suit for
determination of title to land or that the decree in
it would operate on the land.”
17. Recently, in Excel Dealcomm Pvt. Ltd. v. Asset
Reconstruction Co. (India) Ltd.6
, the controversy had
arisen from the High Court of Calcutta. The two-Judge
Bench addressed to the issue “what is the suit for land”,
and observed as under:-
“A suit for land is a suit in which the relief
claimed relates to the title or delivery of
possession of land or immovable property [see
Adcon Electronics (P) Ltd. v. Daulat]. Further, it is
an established rule that to determine whether it
is a suit for land, the court will look into barely
the plaint and no other evidence (Indian Mineral
& Chemicals Co. v. Deutsche Bank7
). If by the
6
(2015) 8 SCC 219
7
(2004) 12 SCC 37613
averments in the plaint and prayers therein, it
appears that the suit is one for land, it shall be
so held and if it does not so appear, then the suit
shall continue under leave granted under Clause
12.”
18. Be it noted, in the said case suit was filed for specific
performance of the agreement which contemplated sale of
property as has been described under Section 13 of the
SARFAESI Act, 2002. The issue that arose before the Court
is as follows:-
“In the present case, a suit was filed for the
specific performance of the agreement which
contemplated the sale of property, as has been
described in Para 1 under Section 13 of the
SARFAESI Act in terms of the Rules. The
question with respect to Clause 12 of the Letters
Patent in the present case is that whether the
present suit is suit for land.”
19. The Court referred to the relief clause, the authority in
Adcon Electronics (supra) and came to hold that:-
“It may be noted that the sale certificate sought
under the prayer requires the delivery of
possession of the suit property. Thus, we find
that the prayer for delivery of possession was an
implicit one in the present case. The prayer as
sought in the plaint could not have been granted
without the delivery of possession of the suit
property as the sale certificate itself contemplates
the delivery of the immovable property. Thus, in
view of this we find that Adcon Electronics would
not apply as there was a prayer for delivery of14
possession in the present case. Therefore, we
hold that the present suit was indeed a suit for
land.”
Being of this view, it concurred with the opinion
expressed by the High Court of Calcutta that it did not have
the territorial jurisdiction.
20. The obtaining factual matrix has to be appreciated on
the basis of the principles that have been enunciated in the
authorities we have referred to hereinabove. It has to be
borne in mind that it was an application under Section 9 of
the 1996 Act. Section 9 of the 1996 Act reads as follows:-
“9. Interim measures, etc. by Court.—A party
may, before or during arbitral proceedings or at
any time after the making of the arbitral award
but before it is enforced in accordance with section
36, apply to a court—
(i) for the appointment of a guardian for a minor
or a person of unsound mind for the purposes of
arbitral proceedings; or
(ii) for an interim measure of protection in respect
of any of the following matters, namely:—
(a) the preservation, interim custody or sale of
any goods which are the subject-matter of the
arbitration agreement;
(b) securing the amount in dispute in the arbitration;15
(c) the detention, preservation or inspection of
any property or thing which is the subjectmatter
of the dispute in arbitration, or as to
which any question may arise therein and authorising
for any of the aforesaid purposes any
person to enter upon any land or building in
the possession of any party, or authorising any
samples to be taken or any observation to be
made, or experiment to be tried, which may be
necessary or expedient for the purpose of obtaining
full information or evidence;
(d) interim injunction or the appointment of a
receiver;
(e) such other interim measure of protection as
may appear to the court to be just and convenient,
and the Court shall have the same power for
making orders as it has for the purpose of, and in
relation to, any proceedings before it.”
21. There can be no cavil over the proposition that Section
9 petition can be entertained in the absence of arbitral
proceeding. Be that as it may, it is imperative to scan the
relevant clauses of the agreement and carefully x-ray the
clauses of the MoU and also critically scrutinise the relief
sought in the petition preferred under Section 9 of the Act.
22. Mr. Naphade, learned senior counsel has drawn our
attention to the recital part of the agreement and certain16
other clauses. The recital part reads as follows:-
“AND WHEREAS the Owner and Developer have
agreed to develop the said land by entering in a
Development Agreement, by which the owner
shall get 40% of the Developed Saleable area and
Developer shall get 60% of the Developed
Saleable Area in the proposed project irrespective
of its being residential/commercial or hotels or
Multiplex or mixture of the either etc.”
23. Clause 3 of the agreement deals with the security
amount which stipulates that for developing the said land of
the owner, the developer shall give a “Refundable Security
Deposit” of Rs.20 crores to the owner. A schedule was fixed
for payment of the said amount. Clause 4 of the agreement
stipulates what events would take place after execution of
the development agreement. It basically relates to certain
obligations to be performed by the parties.
24. Clause 5(ii) of the agreement on which emphasis has
been laid is to the following effect:-
“5. (ii) The Developer and the Owner shall at all
times thereafter be entitled to receive money, take
bookings, enter into leasing agreements, sell,
assign any or all portions of the proposed project
falling under his share, and owner hereby give
express consent for the same to the Developers.”
25. Clause 7 deals with refund of security deposit. Clause17
7D from which inspiration has been drawn by the learned
senior counsel for the appellant reads as follows:-
“7D. It is agreed between the parties hereto that
if the Owner fails to refund the security deposit
and the parties hereto decides to sale the units
and/or blocks then in that event the Developer
shall be entitled to recover refundable security
deposit from the sale of Units and/or Blocks of
the Owner’s share and in the circumstances the
Developers shall be entitled to receive 60% and
the Owner shall be entitled to receive 40% of the
sale price of the Units and/or Blocks of the
Owner’s share and the said 60% price will be
adjusted towards refundable security deposit.”
26. Clause 9 deals with the responsibility of the developer.
Clause 10 deals with the joint responsibilities of the owner
and the developer. The said clause reads as follows:-
“10. Joint Responsibility of Owners and
Developers:-
(i) To provide cooperation to each other for
sanctioning the plans of the project with all
required permissions and obtaining occupation
certificate for handing over possession of the
tenements to the Purchasers of Tenements.
(ii) To clear all the dues of authorities
concerned with respect of plot under
development.
(iii) To convey the land with building to the
societies and/or condominium or apex body after
completion of project as per rules applicable.”18
27. At this juncture, it is relevant to refer to certain
aspects which have been enumerated in the MoU. The
recital in the MoU is as follows:-
“& Whereas ‘YES BANK’ (hereinafter referred to
as the ‘SAID BANK’) has principally agreed to
grant loan of Rs.85 crores to the Developers for
the development of the said Township for which
purpose the Developers are required to mortgage
the Land and Development of the said Township
to the SAID BANK in lieu of which the SAID
BANK has agreed to disburse construction
related loan which shall be disbursed as per the
progress of the project.
& Whereas as the Development Agreement did
not provide for mortgage of the Land of the Owner
and for availing the facility of loan the Developer
are required to mortgage the entire project the
Developer has proposed to pay a lump sum
amount of Rs.137 crores to the Owner in lieu of
his share in the said Township for which
consideration the Owner has agreed to permit the
Developer to avail loan facility from the said Bank
for the development of the Said Township and to
release/transfer his share in the said Township
in favour of the Developer.”
28. Clause 13 of the agreement refers to resolution of
disputes. We quote the said clause:-
“13. RESOLUTION OF DISPUTES:-
That in case of any difference or dispute between
the parties with regard to the meaning of
construction of this MoU or regarding any terms
of the Development Agreement or with regard to19
the project undertaken under this MoU or
Development agreement to be executed between
the parties, the same shall be resolved by
arbitration in conformity with the provisions of
the Arbitration and Conciliation Act, 1996.”
29. In this context reference to the reliefs prayed for under
Section 9 petition gain significance. Prayers (a) and (b) of
the paragraph relating to relief sought read as under:-
“(a) pending the hearing and final of the proposed
arbitral proceedings and for a period of sixty days
after the award therein, the respondent by
himself and through his servant and or his agent
and/or in any manner, howsoever, be restrained
by a temporary order or injunction from entering
upon the property bearing Survey No. 1487/1
and 1487/2 at Kasba, Indore, Patwari Halka No.
15/2, Tahsil & District – Indore, Madhya
Pradesh, and from dealing with or moving the
petitioners’ construction machinery on the said
property and from disturbing or interfering with
the Petitioners possession thereof in any manner;
(b) pending and hearing and final disposal of the
proposed arbitral proceedings and for a period of
sixty days after the award therein, the
Respondent by himself and or through his
servants and/or his agents, be restrained by a
temporary order of injunction from or in any
manner directly or indirectly disposing off,
alienating, encumbering or creating third party
rights in any manner whatsoever in the property
bearing Survey No. 1487/1 and 1487/2 at Kasba,
Indore, Patwari Halka No. 15/2, Tahsil & District
– Indore, Madhya Pradesh, and from disturbing
or interfering with the Petitioners possession
thereof in any manner.” 20
30. At this stage, we are obligated to state that the High
Court has referred to the correspondences between the
parties. It has referred to the letter dated 19.6.2013 in
extenso. In the said letter it was mentioned that as the
owner of the land had terminated the development
agreement and the MoU, he had taken over the entire
physical and actual possession of the said land and the
developer was called upon to remove its machinery and
construction material lying upon the said land. The said
letter was replied to vide letter dated 16.7.2013 refuting the
fact that the physical possession of the land had been taken
over by the land owner and stating that the possession was
still with the developer. The Division Bench has extensively
reproduced from the petition preferred under Section 9 of
the 1996 Act. We think it apt to reproduce the same:-
“10. The Petitioners have shocked to receive
letter dated 6 June 2013, from Respondent’s
Advocates, informing the Petitioner that the
Respondent had terminated the MOU and the
Development Agreement with immediate effect
and had allegedly taken over the possession of
the Township in terms of the MOU. By the said
letter, the petitioners were further informed that
the Security Deposit of Rs.20 crores stood21
forfeited. The petitioners were informed that
without prejudice to the termination, the
respondent made a demand of payment of Rs.71
crores along with interest thereon. A copy of the
letter dated 6 June 2013 is annexed and marked
Exhibit-F hereto.
xxxxx xxxxx xxxxx
14. The respondent, by Advocates letter dated 30
June 2013 sought to invoke the Arbitration
Clause under the Development Agreement and
the Memorandum of Understanding. By the said
letter, the petitioners were informed that the
entire physical and actual possession was
allegedly already taken over by the respondent.
This is a false statement. The petitioners were
further called upon to remove the machinery and
construction material. Hereto annexed and
marked Exhibit-I is a copy of the respondent’s
Advocates letter dated 30 June 2013.
xxxxx xxxxx xxxxx
17. The petitioners submit that they had
completed substantial work by completing
Building B-1, B-2 and B-3 (where only top slabs
are pending), construction of five slabs of
Building C-1, commencing digging and footing
work of Building A-1. The petitioners’ machinery
and labour are at site. The petitioners are in
possession of the site. Now, the respondent has
suddenly demanded a sum of Rs.71 crores,
allegedly due to the respondent, under the MOU
dated 8 June 2012. Though not entitled, the
respondent has sought to forfeit the security
deposit of Rs. 20 crores, in accordance with the
MOU.
18. In the circumstances, the petitioners submit
that the petitioners are entitled to, pending an22
adjudication in the proposed Arbitral proceedings
and for a period of sixty (60) days after the award
therein, for an order of injunction, restraining the
respondent by himself or through his servants or
agents from entering upon the property, subject
matter of the Development Agreement and from
dealing with and moving the machinery of the
petitioners used in construction activity and from
disturbing or interfering with the petitioners
possession thereof in any manner.”
31. After discussing the facts in entirety, the Division
Bench has opined thus:-
“... The development agreement also stipulated
that the appellant was entitled to possession of
the said land and accordingly the respondent, by
a separate possession receipt dated 28 February
2008 handed over to the appellant possession of
the said land which is the subject matter of the
development agreement. Thereafter, the parties
entered into a MOU dated 8 June 2012 which
inter alia recited that the appellant was to
construct the township project consisting of
residential and commercial buildings and a club
house and further that the respondent would be
paid a sum of Rs.137 crores in place of its 40%
share under the development agreement. As
disputes arose between the parties, the said
development agreement and the MOU were
terminated by the respondent by its Advocate’s
letter dated 6 June 2013 and the respondent
invoked arbitration. It is pertinent to note that in
paragraph 9 of the said termination letter, the
respondent has specifically stated that as on that
date (6 June 2013), the respondent had taken
over the possession and absolute ownership of
the said township including the structures
thereon, in accordance with the terms of the23
MOU. This included the construction put up by
the appellant on the said land. In the said letter,
at paragraphs 11 and 12, the respondent
reiterated that it was the owner of the said land.
32. And thereafter the Division Bench proceeded to
analyse the letter dated 30.6.2013 and on that basis
observed that:-
“... This letter of the respondent further stated
that since the Respondent had terminated the
development agreement and MoU, the respondent
had taken over the entire physical and actual
possession of the said land and in view thereof
called upon the Appellant to remove its
machinery and construction material from the
said land. Again, by its letter dated 16 July,
2013, the Appellant once again denied that the
physical possession of the said land had been
taken over by the Respondent as alleged in its
letters dated 6 June 2013 and 30 June 2013
respectively.”
33. The seminal issue is whether on the factual score
which has been exposited, the application filed under
Section 9 of the 1996 Act before the High Court of Bombay
can be regarded as a money claim. On a studied scrutiny of
the agreement and the MoU it is clear as day that the
development agreement indubitably had created certain
interests in the land in favour of the appellant. The
assertions made in the application along with the relief
clause when read in entirety and appreciated in a holistic
manner, it becomes luminescent that the core dispute
pertains to possession of the land, for the appellant claims
to be in exclusive possession and the respondent, per
contra, has asseverated that it had taken over possession.
It can irrefragably be stated that any order passed under
Section 9 of the 1996 Act will have the impact on the land.
It is difficult to accede to the submission that it will not
conceptually fall within the category of “suit for land” as
engrafted under Clause 12 of the Letters Patent. It is clearly
a dispute with regard to the possession which is evincible
from the correspondences and the averments made in the
application preferred under Section 9 of the 1996 Act.
Thus, there has to be determination as regards possession
and impliedly issue of direction for recovery of possession.
Hence, the conclusion arrived at by the Division Bench on
the basis of the scrutiny of documents that the dispute is
embedded with regard to the possession of the land because
the fundamental claim pertains to certain constructed space
on the land and, therefore, it would conceptually fall within
the conception of “suit for land” appearing in Clause 12 of25
the Letters Patent is unexceptionable. Prayer (a) quoted
above seeks restraint by a temporary order or injunction
from entering upon the property. It is difficult to accept the
submission that it is a money claim and, therefore, the
Bombay High Court would also have the territorial
jurisdiction and accordingly we unhesitatingly repel the
same.
34. Resultantly, we find no substance in the appeal and
accordingly the same stands dismissed. There shall be no
order as to costs.
.............................J.
[Dipak Misra]
............................J.
[Prafulla C. Pant]
New Delhi
October 15, 2015
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