Full Judgment Text
NON-REPORTABLE
2024 INSC 248
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO.2664 of 2023
M/S ACME PAPERS LTD. ...PETITIONER(S)
VERSUS
M/S. CHINTAMAN DEVELOPERS
PVT. LTD. & ORS. …RESPONDENTS(S)
WITH
TRANSFER PETITION (CIVIL) NO (s).499 OF 2024
M/S. CHINTAMAN DEVELOPERS
PVT. LTD. ...PETITIONER(S)
VERSUS
M/S ACME PAPERS LTD. …RESPONDENTS(S)
J U D G M E N T
PRASANNA B. VARALE, J.
1. This transfer petition has been filed by the petitioner seeking
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2024.03.22
19:16:34 IST
Reason:
transfer of RCS No.128/A/2023, filed by respondent no.1, from
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the Court of District Judge, Sehore, Madhya Pradesh to the City
Civil Court, Calcutta, West Bengal.
2. The parties had entered into a Memorandum of
Understanding (hereinafter referred to as “MoU”) on 10.11.2022
whereby respondent no.1 had agreed to purchase land
admeasuring an area of approx. 74.06 acres (“suit property”) on an
“as is whatever there is” basis for a consideration of
Rs.20,69,92,000/-. It was also agreed that the petitioner would
obtain all necessary approvals/no objection certificates (“NOCs”)
for the transfer of suit property and in case of unprecedented delay
in obtaining the same, the petitioner would be at liberty to deal
with suit property by treating the MoU as cancelled and/or
terminated.
3. Subsequently, the petitioner could not obtain the necessary
approvals required for selling the suit property and thus, the
respondents filed a suit for specific performance of the MoU, which
the petitioner now seeks to transfer to Calcutta where they have
already filed a suit for declaration that the MoU stands terminated
and is incapable of being acted upon.
Both the parties are before us with different Transfer Petitions,
seeking transfer of the case filed by the opposite party.
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4. Counsel for the petitioner submits that the MoU was
executed in Calcutta and the suit filed by them goes to the root of
the matter, i.e., validity and enforceability of the MoU. It is
contended that the respondent’s suit for specific performance
would only arise if the agreement is valid. As such, the reliefs
sought by the petitioner are required to be decided first and cannot
be raised as an issue before the District Judge, Sehore as it is
already an issue raised by them in their suit.
Per contra, counsel for respondent no.1 submits that the
question of the existence of the MoU or the location where it was
entered into has no nexus with the choice of jurisdiction. Whereas,
the existence of the MoU and its specific performance are
intrinsically connected and relate directly to the suit property,
which is located in Sehore, Madhya Pradesh. Further, it is
contended that the petitioner has filed other suits in Sehore and is
also appearing in a matter before the Debt Recovery Tribunal,
Jabalpur, Madhya Pradesh in connection with the suit property.
5. We have heard the learned counsel for the parties and have
perused the material on record.
6. It is an admitted fact that the suit property is situated in
Sehore, Madhya Pradesh. Section 16, CPC inter alia provides that
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suits for the determination of any other right to or interest in
immovable property shall be instituted in the Court within the
local limits of whose jurisdiction the property is situate. Thus, the
petitioner’s reliance on the cause of action arising in Calcutta due
to the MoU being executed at Calcutta is completely erroneous in
view of Section 20, CPC, which provides that a suit can be initiated
where the defendant resides or cause of action arises is a residuary
provision only applicable to cases beyond those in Section 15 to
19, CPC. Thus, this Section has no application in this case as
when the subject matter of the MoU is the suit property located at
Sehore. This Court in Harshad Chiman Lal Modi v. DLF
Universal Ltd. , (2005) 7 SCC 791 held the following:
“21. A plain reading of Section 20 of the Code
leaves no room for doubt that it is a residuary
provision and covers those cases not falling
within the limitations of Sections 15 to 19. The
opening words of the section, “subject to the
limitations aforesaid” are significant and make
it abundantly clear that the section takes
within its sweep all personal actions…”
7. All the same, the suit filed at Sehore, Madhya Pradesh was
earlier in time. A perusal of the materials placed before us would
show that respondent no.1 filed its suit on 12.05.2023 at Sehore,
Madhya Pradesh and the petitioner filed its vakalatnama therein
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on 28.06.2023. Thereafter, on 20.07.2023 the petitioner filed its
suit in Calcutta and two days later the petitioner filed its written
statement in Sehore.
Section 10, CPC mandates that no Court shall
inter alia
proceed with the trial of any suit in which the matter in issue is
also directly and substantially in issue between the parties,
litigating under the same title, where such suit is pending in the
same or any other Court in India having jurisdiction to grant the
relief claimed. It has been incorporated to avoid multiplicity of
proceedings on issues which are directly and substantially in issue
in the previously filed suit.
In Gupte Cardiac Care Centre and Hospital v. Olympic
Pharma Care (P) Ltd. , (2004) 6 SCC 756 this Court has held that
while considering a Transfer Petition under Section 25, CPC regard
must be had for Section 10, CPC. This is what was said:
“5. The suit at Nashik has been instituted first
in point of time. By reference to Section 10 CPC,
the trial of the suit at Delhi, being the latter suit,
shall be liable to be stayed. For the exercise of
its discretionary jurisdiction under Section 25
of the Code of Civil Procedure, 1908 the only
consideration which is relevant is “expediency
for ends of justice”. The court will have regard
to and respect for the rule enacted in Section
10 of the Code. Of course, the considerations
such as which is the place where most of the
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evidence is available, convenience of the
parties and witnesses, which one of the two
places is more convenient to access and attend
and so on are also the factors to be kept in view
and may in an appropriate case persuade this
Court to direct a transfer of case in departure
from the rule underlying Section 10 of the Code.
All would depend on the facts and
circumstances of a given case.”
It is also of relevance that since the suit property is located
in Sehore, all property records and government documents would
be present in the vicinity, including most witnesses. Further, it
appears from the counter affidavit that the suit property is
mortgaged to Bank of Baroda, through its Bhopal branch and an
auction has taken place on the strength of which the Bank, as well
as the auction purchasers have been impleaded in the suit filed at
Sehore vide Order dated 01.11.2023.
8. Under these circumstances, we dismiss Transfer Petition
No.2664 of 2023.
9. Resultantly, Transfer Petition (Civil) No. 499 of 2024 is
allowed and hence TS No.1346 of 2023 pending before the City
Civil Court at Calcutta, West Bengal is hereby transferred to the
Court of Principle Judge, Sehore, Madhya Pradesh.
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The petitioners (in T.P.(c) No.2664/2023) are at liberty to
withdraw the suit that has been transferred and file a counter
claim in RCS No.128/A/2023 before the Court of Principle Judge,
Sehore, Madhya Pradesh in accordance with law.
10. After the matter is transferred to Court of Principle Judge,
Sehore, Madhya Pradesh, the transferee Court shall give fresh
notice to all the parties by fixing a date and the aforesaid matter
shall proceed at the transferee Court from the stage it was left at
the City Civil Court, Calcutta, West Bengal.
11. The records of the case be transferred to the transferee Court
forthwith.
12. Pending applications, if any, stand disposed of.
……...……….………………….J.
[SUDHANSHU DHULIA]
..….....………………………….J.
[PRASANNA B. VARALE]
New Delhi.
March 22, 2024.
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