EXCEL DEALCOMM PRIVATE LIMITEDversusASSET RECONSTRUCTION COMPANY (INDIA) LIMITED & ORS.

                          [2015) 4 S.C.R. 948


A            EXCEL DEALCOMM PRIVATE LIMITED
                                  v.
        ASSET RECONSTRUCTION COMPANY (INDIA)
                   LIMITED & ORS.

8                 (Civil Appeal No. 3272 of 2015)

                          APRIL 01, 2015

     [M.Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]

c         Letters Patent: Letters Patent of High Court of Calcutta
     - Clause 12 -      First respondent filed an application for
     revocation of leave granted under clause 12 of Letters
     Patent by the Calcutta High Court and asking return of the
    plaint to be filed before the court having jurisdiction to try
D    the same on the ground that suit was suit for land and the
     immovable property was situated in Mumbai; that the
    Agreement provided that the Mumbai Court has exclusive
    jurisdiction - Held: The suit for land is a suit in which the
     relief claimed relates to the title or delivery of possession
E    of land or immovable property - The prayer in the plaint
    was for a decree for specific performance of the agreement
    for sale by directing issue of Sale Certificate in favour of
     the plaintiff - The sale certificate sought under the prayer
    requires the delivery of possession of the suit property -
F    Thus, the suit was indeed a suit for land - The intention
    of the parties to the Agreement was to restrict limitation to
     the forums/courts of Mumbai only - Therefore, the Courts
    of Mumbai were granted exclusive jurisdiction as per the
G   Agreement and there was no reason to create any
    exception to the intention of the parties.

        Dismissing the appeal, the Court

        HELD: 1. Suit for land         A plain reading of Clause
H
                            948
 EXCEL DEALCOMM PVT. LTD. v. ASSET RE-CONST 949
              CO. (INDIA) LTD.

12 of the Letters Patent of the High Court of Calcutta          A
suggests that ordinary original civil jurisdiction of the
High Court of Calcutta will extend in following cases:
(a) In a suit for land or other immovable property -
where such land or property is wholly situated in the
territorial jurisdiction of the High Court of Calcutta; -       B
where such land or property is situated in part only
within the said territorial jurisdiction of the Court, if the
leave of the Court shall have been first obtained. (b) in
suits other than suit for land - if the cause of action
has arisen wholly within the said limits - where the            C
cause of action has arisen in part only within the said
limits, if the leave of the Court shall been first obtained;
If the defendant at the time of the commencement of
the suit dwells or carries on business or personally            D
works for gain within such limits. In the present case,
a suit was filed for the specific performance of the
Agreement which contemplated the sale of property.
The question with respect to Clause 12 of Letters
Patent was whether the present suit was suit for land.          E
The suit for land is a suit in which the relief claimed
relates to the title or delivery of possession of land or
immovable property. Further to determine whether it
is a suit for land, the Court has to look into barely the
Plaint and no other evidence. In the present case, the          F
prayer in the plaint was for a decree for specific
performance of the agreement for sale by directing the
Defendants to issue in favour of the plaintiff the Sale
Certificate in respect of assets mentioned therein. The
sale certificate sought under the prayer requires the           G.
delivery of possession of the suit property. Thus, 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         H
950        SUPREME COURT REPORTS               [2015] 4 S.C.R.


A     itself contemplates the delivery of the immovable
      property. Therefore, the present suit was indeed a suit
      for land. [paras 9, 10, 11, 14] [956-E; 957-C-H; 958-A-F;
      960-C-D]

 B     2. Exclusive jurisdiction. It is clear from Clauses
  5 and 9(e)(viii) of the Agreement entered into between
  the parties that the intention of the parties to the
  Agreement was to restrict limitation to the forums/
  courts of Mumbai only. Therefore, the Courts of
C Mumbai were granted exclusive jurisdiction as per the
  Agreement and there was no reason to create any
  exception to the intention of the parties. In view of the
  two findings that the present suit is a suit for land, and
  that the parties had granted exclusive jurisdiction to
D the Court of Mumbai, the jurisdiction of the Court at
  Calcutta is clearly ousted as per law. Thus, the plaint
  will have to be returned by the Calcutta High Court as
  it does not have the jurisdiction. [paras 15, 16] [960-E-
E H; 961-A-D-F]

          Adcon Electronics Pvt. Ltd. v. Dau/at Ram and Anr.
      (2001 )7SCC 698:2001 (3)Suppl.SCR29-held inapplicable.

      Swastik Gases P Ltd. v. Indian Oil Corp. Ltd. (2013)
F 9 SCC 32: 2013 (7) SCR581; Indian Mineral & Chem vs.
  Deutsche bank (2004) 12 SCC 376 - relied on.

                       Case Law Reference
  (2004) 12 sec 376            relied on.           Para 11
G 2001 (3) Suppl. SCR29        held inapplicable.   Para 13
  2013 (7) SCR 581             relied on.           Para 15

        CIVIL APPELLATE JURISDICTION: Civil Appeal No.
  3272 of 2015.
H       From the Judgment and Order dated 08.03.2013 of
 EXCEL DEALCOMM PVT. LTD. v. ASSET RE-CONST 951
              CO. (INDIA) LTD.

the High Court of Calcutta in APO No. 180 of 2012.              A
    Dushyant Dave, Narendra M. Sharma, Abhishek
Sharma, J. K. Choudhry, Rupesh Kumar, for the Appellant.

   Abhrojit Mitra, Shyam Divan, Atishi Depankar, Soumya
Ray Chowdhury, Dhruv Malik, Abhijeet Sinha, Sandeep             B
Mahapatra (for Jayant Mohan), Rabin Majumder, Sameer
Parekh, Shashank Kumar, Galav Sharma, Shashank
Bhansali, Nandita Bajpai (for Parekh & Co.), for the
Respondents.
                                                                c
    The Judgment of the Court was delivered by

    PINAKI CHANDRA GHOSE, J. 1. Leave granted.

     2. This appeal has been preferred against the
                                                                0
judgment delivered by the Division Bench of the Calcutta
High Court on March 8, 2013 in A.P.O. No.180 of 2012
whereby the High Court while holding that the Calcutta High
Court does not have jurisdiction to try civil suit, assumed
jurisdiction for non-suiting the appellant and also held that   E
the Agreement dated 13.2.2007 is not concluded and thus
not enforceable, and dismissed Civil Suit No.299 of 2007
filed by the appellant. The facts of the case necessary to
dispose of this appeal are briefly narrated below.
                                                               F
     3. Uniworth Apparel Limited (hereinafter referred to as
'Uniworth'), being Respondent No.3 herein, was a company
registered in Maharashtra under the Companies Act, 1956.
It had an industrial unit in Thane District of Maharashtra. It
availed credit facilities from ICICI Bank. Uniworth could not G
clear the Bank's dues, as a result the Bank assigned their
claim in favour of Asset Reconstruction Company India
Limited (hereinafter referred to as 'ARCIL'), being
Respondent No.1 herein, a company incorporated under
Companies Act, 1956 and registered with the Reserve Bank H
952       SUPREME COURT REPORTS                [2015] 4 S.C.R.


A of India as a Company under Section 3 of the Securitization
   and Reconstruction of Financial Assets Enforcement of
   Security Interest Act, 2002 (hereinafter referred to as the
   'SARFAESI Act'). ARCIL took steps under Section 13 of
   the SARFAESI Act and took possession of the assets.
B Allegedly the ARCIL entered into a Private Treaty
   Agreement dated 13.02.2007 (hereinafter referred to as 'the
  Agreement') with the appellant Excel Dealcomm Pvt. Ltd.
   {herein after referred to as 'Excel'), for sale of the said
   properties for a consideration of Rs.7.50 Crores. This was
C to be a sale under SARFAESI Actwherein the sale was to
   be conducted by execution of sale certificate by the ARCIL
   in favour of Excel. The Excel alleges that it had even issued
  a cheque of Rs. 9.5 Crores dated March 1, 2007 to the
D ARCIL. In reply thereto, Mr. Sanjoy Gupta, Vice President
  of the ARCIL (Respondent No. 2 herein) had vide letter
  dated 20-03-2007 informed Excel to collect its cheque since
  the deal could not be materialised as the management of
  ARCIL did not approve such a proposal. Thus, the sale
E could not get through and the present appellant brought
  out a suit for specific performance of the Agreement against
  ARCIL, being C.S. No.299 of 2007, in the High Court of
  Calcutta in December 2007. Initially, there were three
  Defendants in the said suit, namely, ARCIL, Mr. Sanjoy
F Gupta (Vice President of ARCIL) and Uniworth. However,
  later on it was found that ARCIL had sold the suit property
  to one Webtech Industries Pvt. Ltd. (hereinafter 'referred
  to as 'Webtech'), Respondent No.4 herein, on 10.02.2011.
  So Webtech was impleaded as Defendant No.4 in the said
G suit after the application for impleadment, being G.A.
  No.3574 of 2010 was allowed on 06-01-2011. It is to be
  noted that the suit property was the one mentioned in the
  Schedule of the Agreement and included both movable and
  immovable properties as mentioned below:
H
 EXCEL DEALCOMM PVT. LTD. v. ASSET RE-CONST 953
  CO. (INDIA) LTD. [PINAKI CHANDRA GHOSE, J.]

   (i) Mortgage on immovable properties of the Uniworth A
       situate at Plot No. A606, TIC Industrial Area, MIDC,
       Shil Mahape Road, New Mumbai, Maharashtra.

   (ii) Hypothecation of the whole of movable assets of
        Uniworth situate at TIC Industrial Area, MIDC, Shil      s
        Mahape Road, New Mumbai, Maharashtra including
        the movable plant and machinery, machinery spare
        tools and accessories and other movables both
        present and future (save and except book debts).

     4. ARCIL filed an application, being G.A. No.1225 of
                                                                 c
2011, for revocation of leave granted under Clause 12 of
Letters Patent by the High Court of Calcutta to the Excel
and asking return of the plaint in C.S. No.299 of 2007 to
be filed before the Court having jurisdiction to try the same.   o
The said application was based on following grounds:

   (a) The suit was effectively a "suit for land" and the
        immovable property was situate in New Mumbai,
        Maharashtra. Therefore, as per clause 12 of Letters      E
        Patent the suit should be filed in a Court having
       territorial jurisdiction over the immovable property.

   (b) That the alleged Private Treaty Agreement between
       ARCIL and Excel was entered into pursuant to F
        Section 13(4) of the SARFAESI Act and even the
        sale was to be conducted by execution of sale
       certificate as provided in Security Interest
        (Enforcement) Rules, 2002 (hereinafter referred to
       as "Rules"). Therefore, the jurisdiction of civil court G
        is excluded.

   (c) That the Private Treaty Agreement provided that
        Mumbai Court would have exclusive jurisdiction.

    5. The learned Single Judge of the Calcutta High Court H
954        SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A     under Original jurisdiction, vide his judgment and order
      dated 22.12.2011 dismissed the application for revocation
      of leave and refused to return the plaint for the following
      reasons:

B        (i) The suit was not a suit for land as the Private Treaty
              Agreement required creation of security or charge
              of the assets mentioned in the schedule i.e.
              "mortgage of immovable properties" and
              "hypothecation of movable properties"; the nature
C             of this security was not mentioned in the agreement
              and thus, any security could be created on the said
              mortgage or hypothecation. Therefore, the learned
              High Court came to the conclusion that the
             enforcement of terms of agreement would not lead
D            to the decree in suit for land.

         (ii) With respect to Forum Selection Clause, the High
              Court held that the ARCIL had waived its right to
              object to the lack of jurisdiction by participating in
E             application for impleadment of Respondent No.4,
              wherein orders were passed on 06.01.2011. The
              learned High Court noted that ARCIL had made no
              objection to the jurisdiction while the impleadment
              application was argued.
F
         (iii) On the question of the jurisdiction of Civil Court
                being ousted by the SARFAESI Act, the High Court
               found that the breach of present agreement would
               not fall under Section 17 of the SARFAESI Act
G              wherein the Debt Recovery Tribunal is given the
               jurisdiction to rule only that whether the sale was a
               correct measure adopted and conducted properly.
               In the present case, even if it is assumed that
               ARCIL was the assignee of ICICI and a third party
H              sued for specific performance against such
 EXCEL DEALCOMM PVT. LTD. v. ASSET RE-CONST 955
  CO. (INDIA) LTD. [PINAKI CHANDRA GHOSE, J.]

       assignee, the case would not fall under Section 17 A
       of the SARFAESI Act.

     6. Aggrieved by the judgment and order dated
22.12.2011 passed by the learned Single Judge of the
Calcutta High Court, dismissing the application for B
revocation of leave granted under Clause 12 of Letters
Patent, ARCIL filed an appeal before the Calcutta High
Court, being A.P.O. No.180 of 2012. The High Court in this
appeal, analysed the judgment of the learned Single Judge
in the Original Jurisdiction of the High Court of Calcutta. C
The High Court came to following conclusion while allowing
the appeal:

   (I) The Private Treaty Agreement was not to be
       considered a concluded contract as it was subject D
       to the approval of the Board of Directors of the
       ARCIL. Since, the approval was not given and even
       the cheque supplied by Excel was made available
       for return, the said agreement was at best a term
       sheet.                                            E

   (II) On the point of suit for land the High Court found
        the alleged sale of assets was to take place by
        issuing "sale certificate" in terms of Rule 5(6) of the
        Rules which pre-supposes the handing over of the          F
        possession.

   (II I) In view of above two conclusions, the High Court
           found it was not necessary to answer the question
           regarding forum selection clause.                 G

    7. On the basis of these conclusions, the Division
Bench of the High Court reversed the order of the learned
single Judge holding that the contract could not be
specifically enforced as it was not a concluded one and H
956        SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A also that it would be a suit for land if, at all, the suit is
  maintainable. Therefore, the Division Bench revoked the
  leave granted under Clause 12 of the Letters Patent.

       8. In the above factual backdrop, following questions
B arise for our consideration:

         (i) Whether the suit for specific performance filed by
             Excel was a "suit for land"?

         (ii) Whether the Private Treaty Agreement conferred an
c             exclusive jurisdiction on the Court of Mumbai and
              if so, Whether or not ARCIL waived this clause by
              participating in impleadment application without
              protest?
D        (iii) Whether the jurisdiction of civil Court is barred in the
               present case by virtue of Section 17 of SARFAESI
               Act?

          Suit for land
E
          9. Clause 12 of the Letters Patent of the High Court
      of Calcutta reads:

           "12. And we do further ordain that the said High Court
           of Judicature at Fort William in Bengal in the exercise
F
           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
G          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
H          at the time of the commencement of the suit shall
 EXCEL DEALCOMM PVT. LTD. v. ASSET RE-CONST 957
  CO. (INDIA) LTD. [PINAKI CHANDRA GHOSE, J.]

        dwell or carry on business, or personally work for gain, A
        within such limits; except that the said High Court shall
        not have original jurisdiction in cases falling within the
        jurisdiction of the Small Cause Court at Calcutta, in
        which the debt or damage, or value of the property
        sued for does not exceed one hundred rupees."              B

     A plain reading of the provision suggests that ordinary
original civil jurisdiction of the High Court of Calcutta will
extend in following cases:
                                                                       c
  (a)     In a suit for land or other immovable property-

            where such land or property is wholly situated in
         the territorial jurisdiction of the High Court of
         Calcutta;
                                                                       D
             where such land or property is situated in part
         only within the said territorial jurisdiction of the Court,
         if the leave of the Court shall have been first
         obtained.
                                                                       E
  (b) in suits other than suit for land

             if the cause of action has arisen wholly within the
         said limits;
                                                                       F
             where the cause of action has arisen in part only
         within the said limits, if the leave of the Court shall
         been first obtained;

              If the defendant at the time of the
         commencement of the suit dwells or carries on G
         business or personally works for gain within such
         limits.

    10. In the present case, a suit was filed for the specific
performance of the Agreement which contemplated the sale H
958        SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A     of property, as has been described in para 1 under Section
      13 of SARFAESI Act in terms of the Rules. The question
      with respect to Clause 12 of Letters Patent in the present
      case is that whether the present suit is suit for land.

B      11. The suit for land is asuit in which the relief claimed
  relates to the title or delivery of possession of land or
  immovable property, [See: Adcon Electronics Pvt. Ltd. vs.
  Dau/at and Anr., (2001) 7 SCC 698]. Further it is an
  established rule that to determine whether it is a suit for
C land, the Court will look into barely the Plaint and no other
  evidence, [Indian Mineral & Chemicals Co. and Others
  vs. Deutsche Bank, (2004) 12 SCC 376]. If by the
  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
D not so appear, then the suit shall continue under leave
  granted under clause 12. In the present case, the prayer
  in the plaint was couched in following words:

           "A decree for specific performance of the agreement
E          for sale recorded in the document dated February 13,
           2007 being Annexure "A" hereto by directing the
           Defendant no. 1 and 2 to issue in favour of the plaintiff
           Sale Certificate in respect of assets mentioned in
           Schedule 1 to Annexure A hereto and on as is where
F          is basis in terms of the said agreement"

       12. The learned counsel for the Respondent has very
  emphatically argued that this prayer is in effect a prayer
  for possession of the said properties since the procedure
G under the Rules for execution of the sale certificate, the
  transfer of possession is pre-requisite. Therefore, he has
  submitted that although, the possession is not asked for
  in direct words but that would be the obvious corollary to
  granting of the prayer. Further, another point which has
H been emphasized on behalf of respondent is that the prayer
 EXCEL DEALCOMM PVT. LTD. v. ASSET RE-CONST 959
  CO. (INDIA) LTD. [PINAKI CHANDRA GHOSE, J.]

requires sale to be effected in terms of the Agreement, and A
therefore, the entire agreement may be read as a part of
the prayer.

    13. On the question of suit for specific performance of
an agreement to sell being a suit for land, this Court has B
laid down a clear principle in Adcon Electronics Pvt. Ltd.
vs. Dau/at Ram and Anr., (2001) 7 SCC 698, that a suit
for specific performance simplicitor without a prayer for
delivery of possession is not a suit for land as Section 22
of the Specific Relief Act, 1963 categorically bars any Court C
to grant such relief of possession in a suit for specific
performance unless specifically sought. In view of this
judgment, in the present case, the only question for our
determination in the plaint is whether a prayer for delivery
of possession is sought or not ? The prayer sought is D
issuance of sale certificate which is provided in Appendix
V to the Rules under SARFAESI Act. The sale certificate
reads as follows:

     "Whereas the undersigned being the authorised officer E
     of the ............................ (name of the institution)
     under the Securitization and Reconstruction of
     Financial Assets and Enforcement of Security Interest
     Act, 2002 and in exercise of the powers conferred
     under Section 13 read with Rule 12 of the Security F
     Interest Enforcement Rules, 2002 sold on behalf of
     the ........................... (name of the secured creditor/
     institution) in favour of the .......................... ..
     (purchaser), the immoveable property shown in the
     schedule below secured in favour of the G
     ............................ (name of the secured creditor) by
     ........................ (the names of the borrowers) towards
     the financial facility ............................. (description)
     offered by ............................. (secured creditor). The H
960        SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A          undersigned acknowledge the receipt of the sale price
           in full and handed over the delivery and possession
           of the scheduled property. The sale of the scheduled
           property was made free from all encumbrances known
           to the secured creditor iisted below on deposit of the
B          money demanded by the undersigned."

       14. 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
C 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 the
D Adcon Electronics would not apply as there was a prayer
  for delivery of possession in the present case. Therefore,
  we hold that the present suit was indeed a suit for land.

          Exclusive jurisdiction
E
           15. Now, we shall consider as to which court has the
      jurisdiction to entertain and try the suit. Clause 5 of the
      Agreement entered into between the parties reads as
      under:
F
           "The payment/cheque shall be drawn and made
           payable in Mumbai. The jurisdiction shall be Courts
           of Mumbai."

       Clause 9(e)(viii) of the Agreements further reads as
G follows:

           "Disputes, if any, shall be subject to the jurisdiction
           of Mumbai Court/Tribunals only"

H         It is clear from these two clauses that the intention of
 EXCEL DEALCOMM PVT. LTD. v. ASSET RE-CONST 961
  CO. (INDIA) LTD. [PINAKI CHANDRA GHOSE, J.]

the parties to the Agreement was to restrict limitation to the A
forums/courts of Mumbai only. This Court in Swastik
Gases P. Ltd. vs. Indian Oil Corporation Ltd., (2013) 9
sec 32, has held as under:
     "The very existence of a jurisdiction clause in an s
     agreement makes the intention of the parties to an
     agreement quite clear and it is not advisable to read
      such a clause in the agreement like a statute. In the
     present case, only the Courts in Kolkata had
     jurisdiction to entertain the disputes between the C
     parties."

     Therefore, we are of the opinion that the Courts of
Mumbai were granted exclusive jurisdiction as per the
Agreement and we find no reason to create any exception D
to the intention of the parties.

     16. In view of the above-mentioned two findings that
the present suit is a suit for land, and that the parties had
granted exclusive jurisdiction to the Court of Mumbai, the E
jurisdiction of the Court at Calcutta is clearly ousted as per
law. Thus, from the above conclusion it appears that the
plaint will have to be returned by the Calcutta High Court
as it does not have the jurisdiction. Therefore, we are of
the view that the question of jurisdiction of the Debt F
Recovery Tribunal need not be answered. Con::;equently,
this appeal is dismissed. The parties may proceed to take
any appropriate measure in an appropriate forum as
provided in law to enforce their rights.
                                                               G
Devika Gujral                             Appeal dismissed.