SUMER BUILDERS PVT. LTD.versusNARENDRA GORAN!

                       (2015] 10 S.C.R. 220


A                 SUMER BUILDERS PVT. LTD.
                                 v.
                       NARENDRA GORAN!
                  (Civil Appeal No. 4267 of 2015)
B
                       OCTOBER 15, 2015
        [DIPAK MISRAAND PRAFULLA C. PANT, JJ.]
         LETTERS PATENT:
c         Clause 12-Applicability to letters patent of High Court
   judicature of Bombay- Held: Under s. 120 of the CPC, ss. 16,
    17 and 20 are not applicable to the High Court in original
   civil jurisdiction - Thus Clause 12 would govern the
D controversy so far Bombay High Court is concerned- Code
  ·of Civil Procedure, 1908 - ss. 16, 17, 20, 120.

         Clause 12 - Original jurisdiction as to suit - Suit for
  land - Agreement between parties to construct buildings -
  Land situated in Indore - Respondent handed over
E possession of land to the appellant-developer tO start the work
  - Dispute arose between the parties - Appellant moved
  Bombay High Court for grant of leave under Clause 12 by
  filing an application uls.9 of AC Act - Leave granted -
F Application for revocation of leave - High Court revoked the
  leave that was earlier granted- Whether justified- Held: s. 9
  petition sought restraint by a temporary order or injunction
  from entering upon the property - Thus, core dispute
  pertained to possession of land -Any order passed uls. 9 of
G AC Act would have the impact on the land- Therefore, it
  was clearly a dispute with regard to the possession which was
  evincible from the correspondences and the averments
  made in the application preferred u/s. 9 of AC Act- The suit
  is a suit for land and would have to be filed in Indore where
H
                                220
 SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                      221


the land is situate - Arbitration and Conciliation Act, 1996 -   A
s.9- Jurisdiction.

     Dismissing the appeal, the Court

     HELD: 1. Under Section 120 of the Code of Civil
                                                             8
Procedure, 1908, 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. [Para 13] [229-D]                               c
      2. The High Court referred to the correspondences
between the parties. In letter dated 19.6.2013, it was
mentioned that as the owner of the land had terminated
the development agreement and the MoU, he had taken              D
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 by letter refuting
the fact that the physical possession of the land had been       E
taken over by the land owner and stating that the
possession was still with the developer. The agreement
and the MoU clearly stated that the development
agreement indubitably had created certain interests in
the land in favour of the appellant Thus the core dispute        F
pertained to possession of the land, for the appellant
claimed 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           G
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
                                                                 H
222        SUPREME COURT REPORTS               [2015) 10S.C.R.


A to the possession which is evinci.ble 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
B 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,
C therefore, it would conceptually fall within the conception
  of "suit for land" appearing in Clause 12 of the Letters
  Patent is unexceptionable. [Paras 30, 33) [237-C-E; 240-
  E-H; 241-A-C]
D         Moolji Jaitha & Co. v. Khandesh Spinning &
          Weaving Mills Co. Ltd. AIR 19SO FC 83; Shiv
          Bhagwan Moti Ram Saraoji v. Onkarmal /shar
          Dass & Ors. AIR 19S2 Bom.36S; Adcon
          Electronics Pvt. Ltd. v. Dau/at and Anr. (2001) 7
E         sec 698: 2001 (3) Suppl. SCR 29; P.M.A.
          Velliappa Chettiar v. Saha Govinda Doss AIR 1929
          Mad. 721; Debendra Nath Chowdhury v. Southern
          Bank Ltd. AIR 1960 Cal. 626; Excel Dea/comm
          Pvt. Ltd. v. Asset Reconstruction Co. (India) Ltd.
 F
          (201S) 8 SCC 219: 201S (4) SCR 948- referred
          to.
                         Case Law Reference
      AIR 19SO FC 83            referred to.         Paras
·G
      AIR 1952 Bom.365          referred to.         Paras
      2001 (3) Suppl. SCR 29    referred to.         Para S
      AIR 1929 Mad. 721         referred to.         Para 14
      AIR 1960 Cal. 626         referred to.         Para 14
H
      2015 (4) SCR 948          referred to.         Para 17
 SUMER BUILDERS PVT. LTD. v. NARENDRA GORAN I                      223


    CIVIL APPELLATE JURISDICTION: Civil Appeal No.                 A
4267 of 2015

       From the Judgment and Order dated 10.03.2015 of the
Division Bench of the High Court at Bombay in Appeal No.
572 of 2013 in Chamber Summons No. 720 of 2013 in Leave            B
Petition No. 238 of2013 in Arbitration Petition No. 799 of 2013

      Shekhar Naphade, Yashmin Banshali, Pratap
Venugopal, Supriya Jain, Gaurav Nair, Niharika, (for Mis. K.
J. John & Co.,) for the Appellant.                                 c
     Shyam Divan, Vijay Tulsiyan, R. S. Bobde, Hamed
Kadiani, Kush Chaturvedi for the Respondent.

     The Judgment of the Court was delivered by
                                                                   D
      DIPAK MISRA, J. 1. 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 concurre_d with the
view expressed by the learned Single Judge in Chamber              E
Summons No. 720/2013 in Arbitration Petition No. 799/2013
dated 10.10.2013 whereunder the learned Single Judge had
revoked the leave granted by the court under Clause 12 of the
Letters Patenttofile a petition under Section 9 oftheArbitration
and Conciliation Act, 1996 (for brevity, ''the 1996 Act").         F

      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 G
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 H
224       SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A 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
B between the parties, which stipulates that the developer was
  required construct a township project consisting of one
  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
C 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
D 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
E 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
F 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
  requisite environmental clearance, execute irrevocable power
  of attorney, refund the part of the amount payable and pay
G 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
H also put forth that it was in physical possession of the property
     SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                        225
                  [DIPAK MISRA, J.]

and its construction material, machinery, office equipments and A
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 B
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 C
Indore where the immoveable property is situated; and that
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 D
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.                  E
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. On karma/ lshar Dass & Ors. 2, and referred             F
to Adcon Electronics Pvt. Ltd. v. Dau/at 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.      G
        The parties are entitled to a part of the construction each
        as per the directions of the development agreement or

 'AIR 1950 FC 83
 2
     AIR 1952 Born. 365                                                H
 , (2001 l 1 sec 698
226         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A          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
           dispute has nothing to do with the rights of the parties in
           personam on Iy.... "
 B
           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
c          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
o     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 thatthe application preferred
E
  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
F correspondences between the parties, the assertions made
  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 Moo/ji
  Jaitha (supra) by analyzing various passages, culled out the
G 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
H opined thus:-
 SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                       227
              [DIPAK MISRA, J.]

     "... In the present case, we are of the vie that the disputes A
     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 naturethatthey are rooted to
     the land. The disputes are not such that they relate only
     to the execution of any document and/or specific B
     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 C
     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   D
with the order passed by the learned Single Judge.

     8. We have heard Mr. Shekhar Naphade, learned senior
counsel for the appellant and Mr. Shyam Divan, learned senior
counsel forthe respondent.                                        E

      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 F
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 G
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      H
respondent countering the aforesaid submissions would
228         SUPREME COURT REPORTS                     [2015] 10 S.C.R.


A     contend that the cause of action had arisen at Indore regard
      being had to the fact that the land is situated at Indore and 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
 B    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.

c            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,
 D          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 ifthe cause of action shall
 E          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
 F          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 Cour:t at Bombay, in which the debt
            or damage, or value of property sued for does not exceed
 G          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,
 H
            the High Court in exercise of its ordinary original
     SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                        229
                  [DIPAK MISRA, J.]

        juri3diction will have power to receive, try and determine: A
        (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) 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."                C
      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              D
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 Jaitha (supra),        E
the Full Bench decision of the High Court of Madras in P.M.A.
Vel/iappa Chettiarv. 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" F
         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 G
         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,
 4
     AIR 1929 Mad. 721
 5 AIR 1960 Cal. 626                                                   H
230         SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A          it will be a "suit for land". We are in respectful agreement
           with the view expressed by Mahajan, J. in Moo/ji Jaitha
           case."

          15. It will be appropriate to reproduce what Justice
 B    Mahajan had observed in Moolji Jaitha (supra):-
           "lf 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
c          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
D
           or immovable property; but where incidentally in a 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
 E         term, then such a suit cannot fall within the four corners
           of this expression."
      16. He had further added:-
           "In my opinion, ifthe suit is for specific performance and
           a decree for possession of the land sold is claimed, such
 F
           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 nq good ground
G          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 Dea/comm Pvt. Ltd. v. Asset
      Reconstruction Co. {India) Ltd. 6, the controversy had arisen
 H
      • (2015)8SCC219
     SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                       231
                  [Of PAK MISRA, J.]

from the High Court of Calcutta. The two-Judge Bench                   A
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 B
        property [see Adcon Electronics (P) Ltd. v. Dau/at].
        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 Bank'). If by the averments in the plaint and C
        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."s

       18. Be it noted, in the said case suit was filed for specific D
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:-
                                                                     E
       "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 SAR FAE SI Act in terms of the Rules.
       The question with respect to Clause 12 of the Letters F
       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) a.nd came to hold that:-           G

        "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
 1
     (2004) 12   sec 376                                               H
232         SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A           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
B         . 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."

             Being of this view, it concurred with the opinion expressed
C     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
o     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
 E
            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
 F          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
G           goods which are the subject-matter of the arbitration
            agreement;
            (b) securing the amount in dispute in the arbitration;
            (c) the detention, preservation or inspection of any
 H          property or thing which is the subject-matter of the dispute
 SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                           233
              [DIPAK MISRA, J.)

     in arbitration, or as to which any question may arise A
     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 B
     purpose of obtaining full information or evidence;
     (d) interim injunction o'rthe appointment of a receiver;
      (e) such other interim measure of protection as may
      appear to the court to be just and convenient,                  C

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."
                                                                      D
      .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   E
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 certain other
clauses. The recital part reads as follows:-
                                                                      F
      "AND WHEREAS the Owner and Developer have
      agreed to develop the said land by entering in a
      Development Agreement, by which the o~ner shall get
      40% of the Developed Saleable area and Developer shall
      get 60% of the Developed Saleable Area in the proposed G
      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          H
234         SUPREME COURT REPORTS                 [2015] 1OS.C.R.


A     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
 B    obligations to be performed by the parties.

           24. Clause 5(ii) of the agreement on which emphasis
      has been laid is to the following e'ffect:-

           "5. (ii) The Developer and the Owner shall at all times
c          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
 D         the Developers."

           25. Clause 7 deals with refund of security deposit. Clause
      7D from which inspiration has been drawn by the. learned
      senior counsel for the appellant reads as follows:-

 E         "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
 F         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
G          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:-
H
 SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                             235
              [DIPAK MISRA, J.]

      "10. Joint Responsibility of Owners and Developers:-              A

      (i) To provide cooperation to each other for c;anctioning
      the plans of the project with all required permissions and
      obtaining occupation certificate for handing over
      possession of the tenements to the Purchasers of B
      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/ C
      or condominium or apex body after completion of project
      as per rules applicable."

     27. At this juncture, it is relevant to refer to certain aspects
which have been enumerated in the MoU. The recital in the               D
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             E
      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          F
      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 G
      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 H
236         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A          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:-
 B
           "13. RESOLUTION OF DISPUTES:-
           That in case of any difference or dispute b~tween the
           parties with regard to the meaning of construction of this
           MoU or regarding any terms of the Development
c          Agreement or with regard to 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."
 D
           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:-

 E         "(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
 F         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
G          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
 H         days after the award therein, the Respondent by himself
 SUMER BUILDERS PVT. LTD. v. NARENDRA GORANI                   237
              [DIPAK MISRA, J.]

     and or through his servants and/or his agents, be A
     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, B
     Tahsil & District - Indore, Madhya Pradesh, and from
     disturbing or interfering with the Petitioners possession
     thereof in any manner."

      30. At this stage, we are obligated to state that the High C
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 D
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 E
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:-
                                                                F
     "1 0. 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 G
     the Township in terms of the MOU. By the said letter, the
     petitioners were further informed that the Security Deposit
     of Rs.20 crores stood forfeited. The petitioners were
     informed that without prejudice to the termination, the H
238   SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A     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
 B
      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
c     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
 D    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-
 E    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
 F
      a sum of Rs.71 crores, allegedly due to the respondent,
      under the MOU dated 8June 2012. Though not entitled,
      the respondent has sought to forfeit the security deposit
      of Rs. 20 crores, in accordance with the MOU.
 G    18. In the circumstances, the petitioners submit that the
      petitioners are entitled to, pending an 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
 H
 SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                    239
              [DIPAK MISRA, J.]

     through his servants or agents from entering upon the A
     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."                                   B

    31. After discussing the facts in entirety, the Division
Bench has opined thus:-

     "... The development agreement also stipulated that the c
     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 D
     parties entered into a MOU dated 8 June 2012 which
     inter alia recited ihat 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 E
     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 F
     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 G
     accordance with the terms of the 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.
                                                                H
240         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A            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 respondentfurther stated that since
 B          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. ·
C           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."
 D
            33. The seminal issue is whether on the factual score
      which has been exposited, the applicatipn 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
 E    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
 F    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
G     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
H     the correspondences and the averments made in the
  SUMER BUILDERS PVT. LTD. v. NARENDRAGORANI                        241
               [DIPAK MISRA, J.]

application preferred under Section 9 of the 1996 Act. Thus, A
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 B
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 of the Letters Patent is
unexceptionable. Prayer (a) quoted above seeks restraint by C
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.
                                                                    D
       34. Resultantly, we find no substance in the appeal and
accordingly the same stands dismissed. There shall be no
order as to costs.

Devika Gujral                                   Appeal dismissed.   E