IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE Present: The Hon’ble Justice Soumen Sen G.A.NO.398 of 2014 G.A. No.243 of 2014 C.S. No.24 of 2014 Mahima Management Services Private Limited Versus Creative Property Developers Private Limited & Anr. For the Petitioner/Defendant : Mr. Pratap Chaterjee, Sr. Adv., Mr. Samrat Sen, Adv., Mr. Reetobroto Mitra, Adv., Ms. Debasri Dutta, Adv. For the Respondent/Plaintiff : Mr. Sudipto Sarkar, Sr. Adv., Mr. Surojit Nath Mitra, Sr. Adv., Mr. Prasanta Kr. Dutt, Adv., Mr. Rupak Ghosh, Adv., Mr. Susanta Kr. Dutt, Adv. Heard On :
03. 09.2014.10.09.2014, 14.01.2015, 21.01.2015, 06.02.2015, 16.02.2015. Judgment On :
21. t April, 2015 Soumen Sen, J.:- The petitioner has filed a suit for recovery of money and a declaration that the defendant No.1 has created an equitable mortgage by deposit of title deed with the defendant No.2 in respect of the property mentioned in the schedule to the plaint. In an interlocutory application filed by the plaintiff, an ex parte ad interim order was passed on 20th January, 2014 directing the first defendant to maintain status quo with regard to the Garia Road property until 31st January, 2014. The said interim order was extended from time to time. During the pendency of the said application, the defendant No.1 has filed a demurrer application praying for revocation of leave granted under Clause 12 of the Letters Patent and rejection of the plaint. The principal ground of challenge appears to be that the property alleged to have been mortgaged in favour of the plaintiff is situated at Garia, District-24Parganas (South), outside the local limits of the ordinary original civil jurisdiction of this Court and, accordingly, this Court has no jurisdiction to try and determine any dispute in relation to the said immovable property. The suit, in pith and substance, is essentially in the nature of a mortgage suit. Such a suit being a suit for land within the meaning of Clause 12 of the Letters Patent, this Court would not have jurisdiction to entertain the suit. The petitioner has placed reliance upon a decision in Hongkong and Shanghai Banking Corpn. Vs. Official Assignee of Calcutta reported at AIR1959Cal 616. The next ground of challenge appears to be that the plaintiff being able to claim further reliefs has failed to do so and in view of proviso to Section 34 of the Specific Relief Act, the plaintiff is not entitled to claim declaration for equitable mortgage. It is argued that the plaintiff besides claiming a money decree has prayed for a decree for declaration regarding the creation of equitable mortgage but no further relief has been claimed despite being able to seek the same, inasmuch as the prayers as made in the plaint would not give a complete relief to the plaintiff. The petitioner has referred to the following decisions for the aforesaid propositions: i. Anila Bala Devi Vs. Madhabendu Narain Roy & Anr., reported at AIR1942Cal.
245. ii. Meharchand Das Vs. Lal Babu Siddique & Ors. reported at AIR2007SC1499 iii. Vinay Krishnan Vs. Keshav Chandra & Anr. reported at AIR1993SC957 iv. Sri Dipendra Lal Shaw Vs. Sri Gaurav Virendra Sanghvi & Ors. reported at 2009 (1) WBLR310(Cal) (Paragraphs 15 and
16) It is argued that no part of the plaintiff’s cause of action has arisen within the local limits of the ordinary original civil jurisdiction of this Court. The plaintiff, in any event, seeks to create an illusion of a cause of action existing in its favour by clever drafting although there is none and there is no right to sue. No part of the plaintiff’s cause of action has actually arisen within the local limits of the ordinary original civil jurisdiction of this Court. Moreover, a leave under Clause 12 of the Letters Patent is also required to be revoked on the ground of forum inconvenience. It is submitted that the cause of action as alleged in the plaint is absurd. The cause of action is based on an alleged loan granted to the defendant No.1 and alleged non-payment thereof. The plaintiff and the defendant No.1 both carrying on business and have their respective offices situated outside the jurisdiction of this Court. The defendant No.2 is alleged to have an office within the jurisdiction of this Court. The defendant No.2 is alleged to be a mere agent of the plaintiff. The defendant No.2 is the agent of a disclosed principle and, accordingly, is neither a proper nor a necessary party. The plaint does not disclose any cause of action against the defendant No.2 nor has any relief been claimed against him. The defendant No.2 has been impleaded only to create jurisdiction of this Court. That a suit would not lie against the agent when there was a disclosed principle reliance has been placed on Midland Overseas Vs. M.V. CMBT Tana reported at AIR1999Bom 401 and Steel Authority of India Ltd. Vs. Transworld Marine Ltd. reported at AIR1982Cal 161. Mr. Pratap Chaterjee, the learned senior Counsel appearing with Mr. Samrat Sen, Advocate has referred to various paragraphs of the plaint to show the absurdity of the claim. It is submitted that the averments of the plaint even assumed to be correct are so absurd that the order of injunction is required to be vacated. The petitioner refers to Paragraph 5 of the Plaint and submits that alleged meeting and negotiation at the office of the defendant No.2 within the jurisdiction aforesaid is not only unbelievable but absurd. The document purporting to be a deed of mortgage is unstamped and unregistered document. The said document is also incomplete being replete with blank spaces. Even the description of the property which was purportedly mortgaged has been kept vague and incomplete. The document does not mention the defendant No.2 or the situs of its alleged execution. According to the plaint the purported loan was repayable by “approximately five months from the date of sanction thereof……”.. The date of sanction is, however, not mentioned anywhere in the plaint. Again the approximation pleaded in respect of such a fundamental matter such as the date of repayment which is an essential term of any loan agreement makes the agreement itself uncertain and incapable of enforcement. In Paragraph 6 of the plaint it is alleged that a cheque for Rs.3 crores was allegedly handed over by the plaintiff to the defendant No.1 on April 26, 2011. The defendant No.1 ultimately never encashed the cheque. The plaintiff’s cause of action is a unilateral act of transfer of funds by RTGS allegedly made in June, 2011. No document has, however, been disclosed either in the plaint or in the interlocutory application to support the factum of such transfer of funds. It is argued that the entire story is unbelievable and it stretches one’s imagination to accept that the defendant No.1 (being allegedly in need of funds) would receive a cheque for Rs.3 crores and do nothing with it, yet it will a. Hand over title deeds of its property to create an equitable mortgage. b. Sign a document for creating security. c. Hand over post dated cheques. d. Make over a hundi. e. Make over a demand promissory note. It is submitted that Paragraph 5 of the plaint relates to the creation of equitable mortgage over a property outside the jurisdiction of this Hon’ble Court. A mortgage suit being a suit for land within the meaning of Clause 12 of the Letters Patent, this Hon’ble Court would refuse to entertain the suit irrespective of the situs of the execution of the agreement in terms of which equitable mortgage was allegedly created. The handing over of the cheque mentioned in paragraph 6 of the plaint is irrelevant to the cause of action, since (according to the plaintiff itself) the aforesaid cheque was ultimately never encashed and the alleged loan forming the subject matter of the suit arose out of alleged RTGS transfers of funds which are mentioned in paragraph 10 of the plaint. The allegation with regard to handing over of Title Deeds is also irrelevant to the plaintiff’s present cause of action in this suit, since the same relates to issue of declaration of mortgage over an immovable property outside the jurisdiction of this Hon’ble Court. The plaintiff in Paragraph 7 although has referred to issuance of a promissory note but the plaintiff has not sued on the promissory note and, accordingly, the alleged handing over of the same cannot be any part of the plaintiff’s cause of action, at least in this suit. The allegations that cheques of diverse dates were alleged to have been handed over by the defendant No.1 in favour of the plaintiff towards repayment of the principal and a further cheque towards repayment of the interest component of the loan. Assuming that the date of sanction (as pleaded in paragraph 3 of the plaint) can be equated and/or merged with the date when the loan was ultimately advanced, then one would be faced with 8 different dates between 2nd June, 2011 and 24th June, 2011 as the dates of repayment. The loan being repayable only after 5 months, the plaintiff would be entitled to its money not before November 2, 2011. Yet the cheques were of dates prior to the date of repayment and presented for encashment on 7th October, 2011 which was also long prior to the due date of repayment. The alleged execution of a hundi payable on September 30, 2011 is irrelevant and contrary to the terms of the agreement. On the basis of the aforesaid, it is submitted that an illusion of existence of a cause of action has been created by clever drafting when, in fact, no cause of action has arisen within the original jurisdiction of this Hon’ble Court. On that ground alone the leave granted under Clause 12 of the Letters Patent is required to be revoked. The learned Senior Counsel in support of the aforesaid submission has placed reliance on ITC Limited-Vs-Debts Recovery Appellate Tribunal reported at 1998 (2) SCC70 It is contended that since final reliefs cannot be granted in the suit, no interlocutory reliefs could be granted in favour of the plaintiff. The learned Senior Counsel has relied upon Cotton Corporation of India Ltd. –Vs- United Industrial Bank Ltd. reported at AIR1983SC1272in support of his argument. On the merits of the dispute it is argued that the plaintiff has not been able to make out any case for attachment before judgment. In view thereof, the order of injunction against Garia property is required to be vacated. Even if it is assumed that there is any loan transaction between the parties, it is settled law in a suit for recovery of money, an injunction order cannot be granted in respect of property of the defendant which are not the subject-matter of the suit. An order of injunction over an immovable property, in effect, would be creating a charge over and in respect of the property thereby an unsecured claim was converted to a secured claim. In this regard, the plaintiff has relied upon the following decisions:i) Raman Tech. And Process Engg. Co. & Anr. Vs. Solanki Traders reported at 2008 (2) SCC302 ii) Sunil Kakrania & Ors. Vs. Saltee Infrastructure Ltd. & Anr. reported at AIR2009Cal 260. iii) Kohinoor Steel Pvt. Ltd. Vs. Pravesh Chandra Kapoor reported at AIR2011Cal 29. iv) Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla Nuvo Limited & Ors. reported at 2012 (6) SCC792(paras 26 to
32) It is submitted that mere existence of a prima facie case without establishing that the refusal to pass an order of injunction shall result in irreparable loss and injury and the balance of convenience wholly lies in favour of passing an interim order is not permissible in law inasmuch as by reason of the order of injunction passed in this proceeding, the defendant No.1 would be deprived of dealing with its property. The learned senior Counsel has relied upon Best Sellers Retail (supra) in support of the aforesaid argument. The learned senior Counsel has referred to the statement of accounts produced by the Allahabad Bank to show that the entire transaction on the basis whereof the claim is made is dubious and it would appear that the money had come and gone out simultaneously. Mr. Sudipto Sarkar, learned Counsel appearing on behalf of the plaintiff in support of its claim in the suit and the interlocutory application submitted that the instant application is in the nature of demurrer. The defendant in order to succeed in the application for revocation has to accept the facts stated in the plaint. The defendant cannot rely upon any other documents or averments made excepting what have been stated in the plaint. The averments made in the plaint must be assumed to be correct for the purpose of determining whether leave is liable to be revoked on a point of demurrer. Mr. Sarkar has referred to various paragraphs of the plaint to show that the plaint discloses that a part of the cause of action has arisen within the jurisdiction of this Court. The case of the plaintiff in the plaint is that the negotiations, agreement, execution of necessary documents and handing over of cheques were all made at the office of the defendant No.2 being the agent and/or the facilitator of the plaintiff and he negotiated the deal between the parties. The learned Senior Counsel has referred to and relied upon Paragraphs 5,6,7,8,9 and 11 of the plaintiff. It is submitted that some other facts giving rise to cause of action for filing the suit arose outside the jurisdiction of this Court for which the plaintiff has prayed for leave under Clause 12 of the Letters Patent to institute the suit and, in fact, such leave was granted. It is submitted that the contention of the defendant that statements have been deliberately made in the plaint is only for the purpose of invoking and/or creating jurisdiction of this Court where, in fact, none has occurred within is contrary to law laid down by the Hon’ble Supreme Court. The defendant in its demurrer application cannot question the truth or correctness of the averments made in the plaint. The learned senior Counsel has referred to the observation of the Hon’ble Supreme Court in Indian Mineral & Chemicals Col. & Ors. Vs. Deutsche Bank reported at 2004 (12) SCC376Paragraphs 10, 11 and 15 in aid of his submission. In dealing with the submission that the suit in so far as it relates to declaration of equitable mortgage cannot be tried by this Court, it is submitted that even on the basis of the decisions relied upon the plaintiffs, it would be clear that where the cause of action is not the cause of action for recovery of land or for recovery of possession, the fact that such will or may be the consequence is immaterial for the purpose of revocation of leave under Clause 12 of the Letters Patent and does not ipso facto makes it “suit for land”.. Mr. Sarkar submitted that it is undisputed even on the basis of the submission made on behalf of the defendant No.1 that the money claim is maintainable being prayer (a) in the suit. Even if the prayer for declaration of creation of mortgage as claimed in prayer (d) of the plaint is found to be not maintainable at the later stage of the trial the leave obtained under Clause 12 of the Letters Patent cannot be revoked on that ground now. This has also been the view expressed in United Commercial Bank Vs. Sanatan Bastushilpa Pratisthan Pvt. Ltd. reported at AIR1981Cal 146 paragraphs 16 and 19. It is submitted that the approach of the defendant to pick and choose few sentences here and there out of context in order to impress upon the Court that the plaint does not disclose a cause of action for recovery of money is an incorrect approach since the plaint has to be read as a whole to ascertain its true import. It is really the substance and not the form that has to be looked into. A meticulous scrutiny at this stage is not called for otherwise genuine claims would be defeated. Mr. Sarkar has relied upon Paragraphs 26 and 30 of the decision of the Hon’ble Supreme Court in Udhav Singh Vs. Madhav Rao Scindia reported at AIR1976SC744which says:“A pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.”
. At this stage, the Court is not required to meticulously scrutinize the plaint and if on a meaningful reading of the plaint it appears to the Court that the plaint does disclose a cause of action that would be sufficient. The Court at this stage cannot embark upon the trial of the suit and to find out the truth or falsity of the respective claims. The applicant-defendant is required to answer the claim of the plaintiff on merits in the affidavit-in-opposition as well as in the written statement. On the basis of the aforesaid submissions, let me now examine the matter and consider the merits of the objection raised by the defendant. It is necessary at this stage to look into the prayers made in the plaint. In the suit, the plaintiff has claimed for:a) A decree for Rs.4,27,46,770/- as has been stated in paragraph no.19 hereof; b) Decree for interest pendente lite and on judgment @ 15% per annum; c) A Decree for declaration that the defendant No.1 had created an equitable mortgage by deposit of title deeds with the defendant No.2 in respect of the property mentioned in the Schedule appended hereto; d) Injunction; e) Attachment f) Receiver; g) Costs; h) Further and/or other reliefs. The petition at this stage would succeed or fall on a finding being arrived at that this Court does or does not have inherent or territorial jurisdiction to try and determine the suit, that is to say, the Court has no jurisdiction over the subject matter of the suit. It cannot be disputed as a proposition of law that for the purpose of ascertaining whether the plaint discloses a cause of action, the facts stated in the plaint are assumed to be true and correct. If on a meaningful reading of the plaint it does appear to the Court that the plaint does not disclose a cause of action or illusion of a cause of action is created by clever drafting, the Court can always dismiss the suit. The Court also, in my view, has inherent jurisdiction to dismiss the suit if it appears to the Court that it is an abuse of the process of Court. Re-litigation on the self-same issue, is an instance of abuse of the process of Court and it attracts contempt jurisdiction. In the instant case, even on the basis of the submission made by the applicant-defendant, it cannot be said that this Court has no jurisdiction at least in so far as money claim in the plaint is concerned. Now, turning on to the next question as to whether the instant suit is a suit for land and, accordingly, the leave is required to be revoked and/or a direction may be passed for return of the plaint to an appropriate Court, I feel, the Court is required to find out dominant feature of the plaint. If the primary object and dominant feature of the plaint is an adjudication of a right, title and interest in an immovable property situated wholly outside the jurisdiction of this Court, this Court has no jurisdiction to entertain the said suit. The said tests were applied in Debendra Nath Chwdhury v. Southern Bank Ltd. reported at AIR1960Cal 626 and Smt. Saroj Agarwal & Ors. Vs. Mohanlal Seal & Ors. reported at 2003 (2) WBLR (Cal) 42. The said decisions have clearly stated that if from the plaint itself it becomes clear that the primary object of the suit is to establish title to the land and the natural consequence of granting reliefs as prayed for in the plaint is to seek possession of the property in question, such shall be treated as a suit for land. The Hon’ble Justice P.B. Mukherjee who later on became the Chief Justice of this Court with his erudition and inimitable style in Debendranath Chowdhury (supra) laid down the tests to be applied for determining if a suit is suit for land. His Lordship after scanning various case laws on the subject available as on that date held that the primary object of the suit should be the determining factor for this purpose. The land should be the heart, soul and theme of the plaint. The nerve centre of the suit should be the land and others are peripheral. On reading of the plaint, the Court is to ascertain if the suit is for the purpose of obtaining any direction for possession or a decision on title to land or the object of the suit is something different and involves the consideration of the question of title to land indirectly. The equitable principle on which English Courts have granted reliefs to litigation in respect of lands situated outside the jurisdiction of this Court are applicable to the High Courts in the Ordinary Original Civil Jurisdiction. The suit whether would involve determination of a title is also required to be taken into consideration. Following the decisions of the Federal Court in Moolji Jaitha and Co. Vs. Khandesh Spg. And Wvg. Mills Co. Ltd. reported at AIR1950FC83it was held that a suit for specific performance in equity jurisdiction where at any rate the only relief sought is the execution of a document of transfer and nothing else is a suit for land within the meaning of Clause 12 of the Letters Patent. The Hon’ble Division Bench relied upon the Division Bench decision of the Madras High Court which stated that where the plaintiff had obtained in a previous suit a decree against the defendant for specific performance of an agreement to sell certain immoveable property to the plaintiff and had got a sale deed in his favour for execution of the decree a subsequent suit for recovery of possession of his lands would not be barred under Order 2 Rule 2 of the Code of Civil Procedure. The principle of law recognized in Debendra Nath (supra) at Paragraph 23 states:-
“23. The foundation of this Court holding that a suit for specific performance, where the only relief claimed is a decree for execution of a document of transfer and nothing else is not a suit for land, is first the principle that it is a suit for enforcing a contract where the court is required to act only in the personam; secondly, the cause of action for such specific performance is not the cause of action for the recovery of land as such or recovery of possession of land as such and the fact that such will or may be the consequence is immaterial for the purpose; the cause of action for specific performance of a contract and not the cause of action for a titular or possessory claim for land; and thirdly, the context of clause 12 of the Letters Patent in providing three basic tests for suits (i) for land, (ii) cause of action and (iii) place of residence or business of the defendant, - clearly indicates that where Courts are intended to act in equitable jurisdiction in personam it is the second or third test which has to be applied. The fact that a decree for specific performance will result in ultimate possession being given or obtained, does not convert it into a suit for land, for in that case the suit for land would not have been grouped as a class by itself apart from the class governed by the test of the cause of action or the test of the place of residence or place of business of the defendant in Clause 12 of the Letters Patent. Historically, as Fry points out in his celebrated work on Specific Performance, 6th Edition, page 7, the Old common Law before equity intervened to act in personam, so that now a decree for specific performance orders the defendant, or failing him this Court in his place, to execute a document of transfer. In modern jurisprudence and practice, this is now well settled. In Volume X, page 397 of Atkin’s Encyclopedia of Forms, the only prayer shown in the pleading is for specific performance and not for possession. Indeed, in the forms of the Civil Procedure Code, both the Forms are used, one for specific performance simpliciter and the other for joint claim for specific performance and possession.”
. Mr. Chatterjee has relied upon Goculdas Vs. Chaganlal & Ors. reported at AIR1927Cal 768 (Paragraphs 14,
15) and Dipendra Lal Shaw (supra) for the same proposition. It is submitted that the declaration of any right to the possession of the property outside the jurisdiction of this Court would make the suit a “suit for land”.. Mr. Chatterjee submits that a mortgage as defined under Section 58 of the Transfer of Property Act is a transfer of an interest is specific immovable property and since, according to the plaintiff, the alleged equitable mortgage relates to a property at Garia, this Court does not have jurisdiction to grant any relief in respect of Prayer (C) of the Plaint. Mr. Sarkar has drawn an analogy of the suit for specific performance with the present suit. The cause of action in a suit for specific performance is not a cause of action for possession of land. Possession is only consequential and the right to the same arises by virtue of the execution of the document of transfer not before. The said view was upheld by the Hon’ble Supreme Court in Adcon Electronics Pvt. Ltd. Vs. Daulat & Anr. reported at 2001 (7) SCC698 In Paragraph 15 of the said judgment, the Hon’ble Supreme Court held that a suit for land is a suit in which the relief claimed relates to title to or delivery of possession of land or immoveable property. Whether a suit is a suit for land or not has to be determined on the averments made in the plaint with reference to the reliefs claimed therein where the relief relates to adjudication of title to land or immoveable property or delivery of possession of the land or immoveable of property it would be considered as a suit for land. It was held that in its true sense, a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land is not the subject matter of the suit. The view expressed by Justice Mahajan as quoted in Adcon (supra) reads:“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 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. 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.”
. In Adcon (supra) the views of the Division Bench in Debendranath (supra) was approved. It would fruitful at this stage to refer to few paragraphs of Adcon (supra) which are stated below:“Justice Mukherjea perceived:- “It seems to me fairly clear that the expression ‘suit for land’ occurring in clause 12 Letters Patent, means a suit which is instituted with the object of establishing claims regarding title to the property or possession of it. Whether or not possession is claimed, if title to any immovable property is to be directly affected by the result of the decision, the suit would be a suit for land.”
14. In Debendra Nath Chowdhury v. Southern Bank Ltd. (supra) a Division Bench of the Calcutta High Court took the view that the suit for specific performance of the contract to execute and register a lease with alternative claims for damages is not a “suit for land”. within the meaning of clause 12 of the Letters Patent.
15. 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.
16. In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs:
“22. Power to grant relief for possession, partition, refund of earnest money, etc. – (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for – (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.”
17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs or possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.
18. In the instant case the suit is for specific performance of the agreement for sale of the suit property wherein relief of delivery of the suit property has not been specifically claimed, as such it cannot be treated as a “suit for land”..
19. We cannot also accept the contention of Mr. Chitale that the suit is for acquisition of title to the land and is a “suit for land”.. In its true sense, a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land as such is not the subject-matter of the suit.”
. The view expressed by Justice Mahajan in Moolji’s case was followed in Adcon (supra). Mr. Pratap Chatterjee, learned senior Counsel has referred to the observation of the Late former Chief Justice of India Justice A.N. Ray in Hongkong and Shanghai Banking Corpn. (supra) in which His Lordship in Paragraph 19 has stated that it is well-settled that a mortgage suit is a suit for land within the meaning of Clause 12. Equitable mortgages by deposit of title deeds were accepted in India as equivalent to simple mortgage after the Privy Council decision in Varden Seth Vs. Luckpathy reported at (1864) 9 MJA307 This has been done as a matter of convenience to the mercantile community to enable them to borrow money without the delay of investigation of title and the requirement of registration. Such mortgages are, however, at variance with the policy of publicity of transfer underlying Transfer of Property Act and the Registration Act. The Privy Council in Imperial Bank of India Vs. U Rai Gyaw Thu reported at AIR1923PC211held that although there was no formal conveyance, an equitable mortgage effected a transfer of an interest in property and for purposes of priority stand on the same footing as a mortgage by deed. Debt, deposit and intention to create security are the three essential requisites of an equitable mortgage. The essential requirement is that the title deed should be deposited. If the deeds are lost, certified copies may be deposited. According to the plaintiff, the defendant has created an equitable mortgage as a security for the loan. An equitable mortgage can be created by deposit of title deeds. Under the Transfer of Property Act a mortgage by deposit of title deeds is one of the forms of mortgages whereunder there is a transfer of interest in specific immovable property for the purpose of securing payment advanced or to be advanced by way of loan. (Mulla on Transfer of Property Act, Eleventh Edition and Dar Shaw Vakil’s Commentary on the Transfer of Property Act, Third Edition) Mr. Sarkar anticipating the merits of the argument of the applicant that in so far as prayer (c) of the plaint is concerned, this Court has no jurisdiction argued that even if ultimately it is held that prayer (c) cannot be granted the plaintiff, however, cannot be completely non-suited. There are two distinct causes of action one for recovery of money and the other is enforcement of mortgage. The property is admittedly outside the jurisdiction of this Court. Order 34 Rule 15 of the Code of Civil Procedure says that the said order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title deeds within the meaning of Section 58 of the Transfer of Property Act. Order 34 Rule 14 expressly provides that Order 2 Rule 2 shall not be a bar to a second suit for sale on a mortgage when the mortgagee has merely obtained a money decree on his mortgage under which he cannot bring the mortgage property to sell by virtue of this rule. This rule relieves the mortgagee only from the restrictions imposed by Order 2 Rule 2 on the splitting of remedies. In the instant suit, the plaintiff has not restricted its claim to money but also extended it to declaration and enforcement of equitable mortgage. The plaintiff has consciously omitted a prayer for injunction on the mortgage property although it was open for the plaintiff to claim such relief and in absence of such relief the suit may not be held to be maintainable in view of Section 34 of the Specific Relief Act. Any prayer for injunction in the suit would have manifestly made the suit a suit for land. Under such circumstances, I have no hesitation in holding that this Court has no jurisdiction in so far as prayer (c) is concerned. However, there cannot be any doubt that in so far as the money claim is concerned on the basis of the averments made in the plaint, this Court has jurisdiction. The question is whether the plaint should be retained and tried here for the money claim. I feel that to avoid multiplicity of proceedings and inconvenience that are likely to cause if this suit is allowed to continue only with money claim and a suit is filed for declaration and enforcement of mortgage before the appropriate Civil Court, this suit is required to be tried by the Civil Court having jurisdiction over the subject matter of the suit, namely, the immovable property. Accordingly, I revoke the leave and permit the plaintiff to withdraw the suit and present the plaint before the appropriate Civil Court upon furnishing an authenticated copy of the plaint to the department concerned. I grant the plaintiff four weeks’ time to institute the proceeding before the appropriate Civil Court and in the event, the plaint is presented before the appropriate Civil Court within the aforesaid period the plaint shall not be treated as barred by limitation. Since I have directed return of the plaint, I feel that in the interest of justice the interim order passed on 20th January, 2014 directing the first defendant to maintain status quo with regard to the Garia Road property shall continue till the matter is being taken up by the appropriate Civil Court. Moreover, the applicant did not file any affidavit-in-opposition. There are various factual matters which are required to be dealt with on affidavits. Oral submission cannot be a substitute to an affidavit. The merits of the injunction application are yet to be decided on affidavits. The order extending the interim order shall not be treated as an expression of opinion on the merits of the dispute and the Civil Court shall decide the matter impartially and, in accordance with law being uninfluenced by the observation made in this order. G.A. No.398 of 2014 is allowed. G.A. No.243 of 2014 is disposed of. In view of the aforesaid order C.S. No.24 of 2014 shall not be shown as pending in this Court. However, there shall be no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking. (Soumen Sen, J.)