ROHIT KOCHHARversusVIPUL INFRASTRUCTURE DEVELOPERS LTD. & ORS.

         [2024] 11 S.C.R. 1289 : 2024 INSC 920

                    Rohit Kochhar
                          v.
     Vipul Infrastructure Developers Ltd. & Ors.
(Special Leave Petition(Civil) No(s). 10169-10171 of 2008)
                        26 November 2024
        [J.B. Pardiwala and R. Mahadevan, JJ.]


                     Issue for Consideration
Whether the relief sought by the plaintiff in respect to the suit
property can be entirely obtained through the personal obedience of
the defendants warranting the application of the proviso to Section
16 of the Code of Civil Procedure, 1908.

                             Headnotes†

Code of Civil Procedure, 1908 – Proviso to s.16 – When not
applicable – Suit for specific performance of the contract in
respect of the suit property situated in Gurugram, filed in
the Delhi High Court – Single Judge held that the suit was
maintainable in view of proviso to s.16 – Appeals filed by
the defendants were allowed by Division Bench, plaint was
directed to be returned to the plaintiff to present it before the
appropriate court having territorial jurisdiction to try the suit
for specific performance – Correctness:
Held: No error committed by High Court in passing the impugned
orders – s.16 deals with territorial jurisdiction of the courts and
inter alia provides that suits for recovery, partition, foreclosure, for
determination of any other right or interest in immovable property are
to be instituted in the court within whose jurisdiction the property is
situate – The proviso to s.16 however, provides that a suit to obtain
relief respecting, or compensation for wrong to, immovable property
held by or on behalf of the defendant, may where the relief sought
can be entirely obtained through his personal obedience be instituted
either in the Court within whose jurisdiction the property is situate,
or in the Court within whose jurisdiction the defendant resides, or
carries on business, or personally works for gain – A suit for specific
performance and delivery of possession is covered under clause
(d) to s.16 and thus the parties, even by agreement, cannot confer
territorial jurisdiction on a court within whose territory the subject
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    matter is not situated – Proviso to s.16 would be applicable to a
    case where the relief sought by the plaintiff can be obtained through
    the personal obedience of the defendant, that is, the defendant has
    not to go out of the jurisdiction of the court at all for the purpose of
    the grant of relief – However, since the present case would require
    the defendants to go to Gurugram for the purpose of execution of
    the sale deed, hence the proviso to s.16 will not be applicable –
    Further, it is clear from the terms of the alleged contract between
    the parties that the transfer of possession of the suit property is
    implicit in the said contract and absence of a specific prayer seeking
    transfer of possession would not have any bearing on the character
    of the suit, which is one covered by s.16(d) – Transfer of Property
    Act, 1882 – s.55. [Paras 13, 18, 21, 33]

    Specific Relief Act, 1963 – s.22 – Import of – Discussed.
    [Paras 22-30]

                              Case Law Cited
    Adcon Electronics Pvt. Ltd. v. Daulat and Another [2001] Supp. 3
    SCR 29 : (2001) 7 SCC 698; Babu Lal v. Hazari Lal Kishori Lal
    and Others [1982] 3 SCR 94 : (1982) 3 SCR 94; Harshad Chiman
    Lal Modi v. DLF Universal Ltd. [2005] Supp. 3 SCR 495 : (2005) 7
    SCC 791; Babasaheb Dhondiba Kute v. Radhu Vithoba Barde, 2024
    INSC 122; Excel Dealcomm (P) Ltd. v. Asset Reconstruction Co.
    (India) Ltd. [2015] 4 SCR 948 : (2015) 8 SCC 219 – referred to.
    P.M.A. Velliappa Chettiar v. Saha Govinda Doss AIR 1929 Mad
    721 – referred to.
    Messrs. Moolji Jaitha and Co. v. Khandesh Spinning and Weaving
    Mills Co. Ltd. AIR 1950 FC 83 – referred to.

                                 List of Acts
    Code of Civil Procedure, 1980; Specific Relief Act, 1963

                             List of Keywords
    Suit for specific performance; Suit property situated in Gurgaon/
    Gurugram, Suit filed in Delhi High Court; Territorial jurisdiction;
    To try the suit; Local limits; Court within whose jurisdiction the
    property is situate, Court within whose jurisdiction the defendant
    actually and voluntarily resides, carries on business, or personally
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      Rohit Kochhar v. Vipul Infrastructure Developers Ltd. & Ors.


     works for gain; Personal obedience of the defendants; Delivery of
     possession; Court within whose territory the subject matter is not
     situated; Transfer of possession of the suit property; Absence of
     specific prayer seeking transfer of possession; Character of the
     suit; Plaint returned to be presented before the court of competent
     jurisdiction; willingness and readiness; Flat Buyers Agreement;
     Immovable property; in rem; in personam; Maxim “equity acts in
     personam.”

                            Case Arising From
     EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
     Petition (Civil) No(s). 10169-10171 of 2008
     From the Judgment and Order dated 11.03.2008 of the High Court
     of Delhi at New Delhi in FAO Nos. 196, 197 and 205 of 2005

                         Appearances for Parties
     Kunal Verma, Somiron Borkataky, Ms. Yugandhara Pawar
     Jha, Ishvaaku Marwah, Saurav Kumar, Ms. Lavanya Dhawan,
     Ms. Yasha Goyal, Advs. for the Petitioner.
     Ankit Virmani, Ajit Pudussery, Krishen Tewary, Ms. Ruchika
     Agarwala, Ashutosh Bamezai, Ms. Mayuri Raghuvanshi, Manish
     Sharma, Vyom Raghuvanshi, Ninad Dogra, Adya Rao, Advs. for
     the Respondents.

                Judgment / Order of the Supreme Court

                                   Order

1.   These petitions arise from a common order passed by a Division
     Bench of the High Court of Delhi dated 11.03.2008 in FAO(OS)
     Nos.196-197/2005 and FAO(OS) No.205/2005 respectively, by which
     the appeals filed by the respondents herein came to be allowed and
     the plaint was ordered to be returned to the petitioner herein for
     presenting it before the appropriate court having territorial jurisdiction
     to try the suit for specific performance.
2.   The petitioner herein, who is the original plaintiff, instituted Civil
     Suit No.1138/2004 in the Delhi High Court on its original side for
     permanent injunction and specific performance of the contract dated
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     16/20.01.2004 entered into with the respondents herein, the original
     defendants, in connection with a commercial property admeasuring
     10,747 sq. ft. situated on the second floor of the Fortune Global Hotel
     & Commercial Complex in Gurgaon (“suit property”).
3.   It is the case of the plaintiff that sometime in September 2003, the
     original defendant no. 2 offered to sell to it commercial space of
     approximately 10,000 sq. ft. on the second floor of the commercial
     complex of the Fortune Hotel and Commercial Complex project
     which was being developed by the defendants. After discussions and
     negotiations regarding the same, a written communication was received
     by the plaintiff on 16.01.2004 containing the aforesaid offer in relation
     to the suit property and the terms and conditions for the transaction.
4.   The offer was accepted by the plaintiff vide letter dated 20.01.2004
     and a cheque dated 20.01.2004 for Rs 20,000,00/- was issued by
     the plaintiff in favour of original defendant no. 3 in furtherance of the
     said acceptance. Further payment of Rs 20,000,00/- was made by
     the plaintiff on 06.02.2004.
5.   Thereafter, disputes cropped up between the parties regarding certain
     terms contained in the “Flat Buyers Agreement”. It is the case of
     the plaintiff that despite several attempts on its part to negotiate
     the terms of the said agreement so as to arrive at a settlement, the
     defendants insisted upon unreasonable, arbitrary and unconscionable
     terms with a view to wriggle out of their liability arising out of the
     binding contract dated 16/20.01.2004.
6.   Aggrieved by the defendant’s alleged refusal to honour the binding
     contract despite the expression of willingness and readiness by the
     plaintiff on multiple occasions, the plaintiff instituted the aforesaid
     suit for specific performance and permanent injunction.
7.   The defendants in their written statements, inter alia, raised a
     preliminary objection as regards the territorial jurisdiction of the
     Delhi High Court to entertain the suit instituted by the plaintiff. The
     defendants submitted that there was no concluded and binding
     contract between the parties and the letters dated 16.01.2004 and
     20.01.2004 respectively were only a part of the ongoing discussion
     and negotiations between the parties in relation to the suit property.
     The letter dated 16.01.2004 was only a letter of intent and was to be
     followed by a property buyer agreement to be signed by the plaintiff
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      Rohit Kochhar v. Vipul Infrastructure Developers Ltd. & Ors.


     which would contain detailed terms and conditions regarding the
     sale of the suit property. Further, in the alternative, the defendants
     submitted that the plaintiff failed to show his readiness and willingness
     to pay the balance amount at any point in time and thus cannot seek
     specific performance of the contract.
8.   The learned Single Judge vide its order dated 25.04.2005 overruled
     the objection raised by the defendants as regards the territorial
     jurisdiction and took the view that it had the jurisdiction to entertain
     the suit. The Court took the view that as the plaintiff was seeking
     the relief of specific performance simpliciter and had not prayed
     for a decree to put him in possession of the suit property, such a
     relief could be granted and enforced by the personal obedience of
     the vendor and thus the Court in whose territorial jurisdiction the
     vendor resides or carries on business or works for gain would have
     the jurisdiction to entertain the suit.
9.   Placing reliance on the decision of this Court in Adcon Electronics
     Pvt. Ltd. v. Daulat and Another reported in (2001) 7 SCC 698, the
     Single Judge drew a distinction between a suit relating to specific
     performance of a contract for sale of immovable property simpliciter
     and a suit where additional claim for delivery is prayed for, and
     observed that a suit of the former category, that is, one for the
     enforcement of contract of sale and for execution of a conveyance,
     cannot be said to be a suit for determination of title to land or that the
     decree in it would operate on the land. The Court further observed
     that Section 22 of the Specific Relief Act has been specifically held
     to be an enabling provision by the decision in Adcon Electronics
     (supra) and thus the observations made by this Court in Babu Lal
     v. Hazari Lal Kishori Lal and Others reported in (1982) 3 SCR 94
     would not be applicable to the facts of the present case as the issue
     has been directly answered by the decision in Adcon Electronics
     (supra). The relevant observations made by the Single Judge are
     extracted hereinbelow:
          “28. I need not, therefore, deal with the various decisions
          of this Court and other High Courts relied upon by Counsel
          for the defendants for the reason that the decision of the
          Supreme Court in Adcon Electronic’s case (supra) holds the
          field. The said decision has taken into account Section 22
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        of the Specific Relief Act. Decision categorically holds that
        a suit seeking specific performance of an agreement to sell
        simplicitor even if it relates to immovable property is not
        a suit in which the relief claimed relates to title or to land.
        The suit is for enforcement of terms of contract. Decision
        categorically holds that it is at the option of the plaintiff to
        seek delivery of possession. Decision categorically holds
        that unless possession of immovable property is specifically
        prayed for, suit could be instituted within the local limits of
        the Court having jurisdiction where the defendant resides,
        carries on business or personally works for gain.
        29.Section 55 of the Transfer of Property Act is also an
        enabling provision and need not be enforced by the buyer.
        30. In respect of the submission made by Counsel for the
        defendants Pertaining to the provisions of Order 2 Rule 2
        of the Code of Civil Procedure, the point that the rule is
        directed to secure the exhaustion of the reliefs in respect
        of a cause of action and not to the inclusion in one and
        the same action, different causes of action, even though
        they arise from the same transaction (see decision of Privy
        Counsel reported as 26 IC 228, Payana v. Panna Lal) has
        been lost sight of by Counsel.
        31. Order 2 Rule 2 is aimed against multiplicity of the suits
        in respect of same cause of action. Complete identity of
        cause of action and various reliefs flowing therefrom has
        not to be confused with various causes of action which
        may accrue under same transaction.
        32. A vendee may be happy to gain title to immovable
        property at the pains of the vendor having lost title and
        since possession was pursuant to title, being labelled as
        an unauthorised occupant if after execution of sale deed
        and possession being required to the delivered refuses to
        do so. In such eventuality, the vendor would be liable to
        pay damages/mesne profits for unauthorised occupation.
        This would be an entirely separate cause of action post-
        execution of the sale deed.
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          33. I accordingly decide the objection raised by the
          defendants against them. It is held that this Court has
          jurisdiction to entertain the suit.”
10. The defendants, being aggrieved by the order passed by the learned
    Single Judge, preferred three appeals before a Division Bench of
    the High Court under Section 10 of the Delhi High Court Act, 1966.
11. The Division Bench of the High Court allowed the appeals and
    ordered the plaint to be returned to the plaintiff in accordance with
    law so as to be presented before the court of competent jurisdiction.
12. The Division Bench of the High Court in its impugned order took
    into consideration the provisions of Section 16 of the Code of Civil
    Procedure, 1908 as also Section 55 of the Transfer of Property Act,
    1882 and recorded the following findings:-
          “18. In the present case, it is an admitted position that
          the appellant had entered into the aforesaid alleged
          contract at its Corporate office at Delhi. It is the specific
          stand of the appellant that they were initially residents
          of Delhi and that they had moved to Gurgaon and their
          corporate office is now also located at Gurgaon. It is the
          contention of the counsel appearing for the respondents
          that the proviso to Section 16 of Code of Civil Procedure
          is applicable which is sought to be invoked, for, the
          relief which is sought for could be entirely enforced
          through the personal obedience of the defendants in
          Delhi. There is however not only a prayer in the plaint
          for declaration of the right and title, but also to transfer
          the right, title and interest in the suit premises situate
          at Gurgaon. As, in our opinion, the suit can be decreed
          in favour of the plaintiff only when the Court can get
          the sale deed executed and registered in favour of the
          plaintiff which would confer the title of the suit premises
          on the plaintiff, and the execution and the registration of
          the sale document would have to take place at Gurgaon
          and, for this the Court will also have to pass a decree
          directing the defendant to get the sale deed executed
          and registered at Gurgaon, implication of the same will
          be that a direction will have to be given to the defendant
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        that he shall have to move out of Delhi and go to Gurgaon
        and get the same registered. No sale deed is sought to
        be registered at Delhi and, therefore, in our considered
        opinion such a relief cannot be entirely obtained through
        the personal obedience of the defendant, who in this case
        has to go to the jurisdiction of another court to get the
        decree executed and the sale deed registered.
        19. Accordingly, we are of the considered opinion that the
        submissions of the learned counsel for the respondent
        and the findings recorded by the learned Single Judge
        that the present case is covered by the proviso of Section
        16 of the Code of Civil Procedure are misplaced. In the
        facts and circumstances of the case as delineated, the
        relief in the present suit cannot be entirely obtained
        through the personal obedience of the defendants. The
        proviso to Section 16 of the Code of Civil Procedure
        would be applicable to a case where the relief sought
        for by the plaintiff was entirely obtainable through the
        personal obedience of the defendant, i.e., the defendant
        has not at all to go out of the jurisdiction of the Court for
        the aforesaid purpose. The present case is not a case of
        the aforesaid nature. In the present case for execution of
        the sale deed the defendants will have to go out of the
        jurisdiction of this Court and get the same executed and
        registered in Gurgaon.
        20. In the present case also it is an admitted position that
        possession of the said property was with the seller and,
        therefore, in terms of the provisions of Section 55(1) of the
        Transfer of Property Act, 1882, the relief of possession is
        inherent in the relief of specific performance of the contract.
        In our considered opinion the ratio of the decision of the
        Supreme Court in Babu Lal(supra) and the principles laid
        down in the case of Harshad Chiman Lal Modi (supra) are
        applicable to the facts of the present case. In Harshad
        Chiman Lal Modi (supra) it was found that in addition to
        passing decree, the court was also required to deliver
        possession of the property. It was held that such a relief
        can be granted only by sending the concerned person
[2024] 11 S.C.R.                                                              1297

      Rohit Kochhar v. Vipul Infrastructure Developers Ltd. & Ors.


          responsible for delivery of possession to Gurgaon and
          the court at Delhi does not have the jurisdiction to get the
          aforesaid decree enforced for the property situate outside
          territorial jurisdiction of Delhi High Court. The Court while
          referring to the provisions of Section 16 of the CPC held
          that the location of institution of a suit would be guided
          by the location of the property in respect of which and
          for determination of any right or interest whereof the suit
          is instituted. The proviso to Section 16 CPC is also not
          applicable to the case, as the relief sought for cannot be
          entirely granted or obtained through the personal obedience
          of the respondent.
          21. The decision of the Supreme Court in the case of
          Adcon Electronics Pvt. Ltd. v. Daulat and Another (2001)
          7 SCC 698, relied upon by the respondents, would also
          not be applicable to the facts of the present case. The said
          decision was rendered in the context of the expression
          “suit for land”. The Supreme Court in the said decision
          held that suit for specific performance of an agreement
          for sale of the suit property, without a claim for delivery of
          possession, cannot be treated as a “suit for land” and is,
          therefore, triable under clause 12 if the other conditions
          thereunder are fulfilled. The facts of the said case are,
          therefore, distinguishable and are not applicable to the
          case in hand. The said decision was rendered due to
          specific provision therein and it is also apparent from the
          fact that the case of Babu Lal(supra) was not even referred
          to in that case.
          22. Another decision of the Supreme Court which needs
          reference at this stage is the case of Begum Sabiha Sultan
          v. Nawab Mohd. Mansur Ali Khan and others (2007) 4
          SCC 343. In para 12 of the said judgment it was held
          by the Supreme Court that reading the plaint as a whole
          in this case, there cannot be much doubt that the suit is
          essentially in relation to the relief of partition and declaration
          in respect of the properties situate in Village Pataudi,
          Gurgaon, outside the jurisdiction of court at Delhi. In that
          view of the matter it was also held that the Delhi Court
          will have no jurisdiction to try and decide the aforesaid
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           suit. It was also held in the said decision by following the
           decision of Harshad Chiman Lal Modi (supra) that the relief
           of partition, accounting and declaration of invalidity of the
           sale executed in respect of immovable propertied situated
           situate in village Pataudi, Gurgaon could not entirely be
           obtained by personal obedience to the decree by the
           defendants in the suit. It was further held that applying
           the test laid down therein, it is clear that the present suit
           could not be brought within the purview of the Section 16
           of the Code or entertained relying on Section 20 of the
           Code on the basis that three out of the five defendants
           are residing within the jurisdiction of the court at Delhi.
           23. In view of the above facts and circumstances, we are
           of the considered opinion that the Delhi court would not
           have the territorial jurisdiction to entertain and decide the
           aforesaid suits. Consequently, we hold that the decision
           rendered by the learned Single judge cannot be upheld.
           The same is accordingly set aside and quashed.
           24. The appeals are allowed accordingly, the plaint be
           returned to the plaintiff in accordance with law.”
13. Having heard the learned counsel appearing for the parties and
    having gone through the materials on record, we are of the view
    that no error not to speak of any error of law could be said to have
    been committed by the High Court in passing the impugned orders.
14. Section 16 of the CPC deals with territorial jurisdiction of the courts
    and provides that suits for recovery or partition of immovable property
    or for foreclosure, sale or redemption in the case of a mortgage of
    or charge upon immovable property or for determination of any other
    right to or interest in immovable property, or for compensation for
    wrong to immovable property, or for recovery of movable property
    actually under distraint or attachment, shall be instituted in the court
    within the local limits of whose jurisdiction the property is situate.
    Further, the proviso provides that a suit to obtain relief respecting,
    or compensation for wrong to, immovable property held by or on
    behalf of the defendant, may where the relief sought can be entirely
    obtained through his personal obedience be instituted either in the
    Court within the local limits of whose jurisdiction the property is
    situate, or in the Court within the local limits of whose jurisdiction the
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     defendant actually and voluntarily resides, or carries on business,
     or personally works for gain.
15. Thus, the pivotal question before us is whether the relief being sought
    by the plaintiff in respect to the suit property can be entirely obtained
    through the personal obedience of the defendants. If yes, then the
    facts of the present case would warrant the application of the proviso
    to Section 16 of the CPC and the High Court on its original side
    would be competent to entertain the suit instituted by the plaintiff.
16. This Court in Harshad Chiman Lal Modi v. DLF Universal Ltd.
    reported in (2005) 7 SCC 791 observed that Section 16 of the CPC
    recognises a well-established principle that actions against res or
    property should be brought in the forum where such res is situate.
    A court within whose territorial jurisdiction the property is not situate
    has no power to deal with and decide the rights or interests in such
    property. In other words, this Court held that a court has no jurisdiction
    over a dispute in which it cannot give an effective judgment.
17. On the proviso to Section 16, the Court observed that the proviso,
    no doubt, states that though the court cannot, in case of immovable
    property situate beyond jurisdiction, grant a relief in rem still it can
    entertain a suit where relief sought can be obtained through the
    personal obedience of the defendant. The proviso is based on a well-
    known maxim “equity acts in personam”, recognised by the Chancery
    Courts in England. The Equity Courts had jurisdiction to entertain
    certain suits relating to immovable properties situated abroad through
    personal obedience of the defendant. The Court observed that the
    principle on which the maxim was based was that the courts could
    grant relief in suits relating to immovable property situated abroad
    by enforcing their judgments by process in personam i.e., by arrest
    of the defendant or by attachment of his property.
18. The Court held that a suit for specific performance and delivery of
    possession was covered under clause (d) to Section 16 of the CPC
    and thus the parties, even by agreement, cannot confer territorial
    jurisdiction on a court within whose territory the subject matter is
    not situated.
19. Recently, this Court in Babasaheb Dhondiba Kute v. Radhu Vithoba
    Barde reported in 2024 INSC 122 held that the conveyance by way
    of sale would take place only at the time of registration of a sale
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     deed in accordance with Section 17 of the Registration Act, 1908.
     Till the time of such registration, no conveyance could be said to
     have taken place.
20. Thus, even if the suit for specific performance is decreed without a
    specific decree for transfer of the possession of the suit property,
    the same can be enforced only when the trial court directs the
    defendants to convey the suit property to the plaintiff by getting a
    sale deed registered with respect to the suit property, as it is only
    after registration that the transfer of title would take place from the
    defendants to the plaintiff. The registration of the sale deed in the
    present case would have to take place at Gurugram as the suit
    property is situated there. The sale deed is not sought to be registered
    at Delhi and the implication of the grant of specific relief would be
    that the trial court will have to direct the defendants to move out of
    Delhi and go to Gurugram to get the sale deed registered. As rightly
    held by the Division Bench of the High Court, such a relief cannot
    be obtained entirely by the personal obedience of the defendants
    as the defendants will have to go to the jurisdiction of another court
    to get the decree executed.
21. We agree with the view expressed by the High Court in the impugned
    order that the proviso to Section 16 would be applicable to a case
    where the relief sought by plaintiff can be obtained through the
    personal obedience of the defendant, that is, the defendant has not
    to go out of the jurisdiction of the court at all for the purpose of the
    grant of relief. However, since the present case would require the
    defendants to go to Gurugram for the purpose of execution of the
    sale deed, hence the proviso to Section 16 of the CPC will not be
    applicable.
22. It is also necessary to understand the true import of Section 22 of
    the Specific Relief Act for a better appreciation of the issue before
    us. The said provision provides that any person suing for specific
    performance of a contract for transfer of immovable property may, in
    an appropriate case, sue for possession, or partition and separate
    possession of the property, in addition to such performance. It is
    further provided in sub-section (2) of the said provision that no relief
    under the said provision 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
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      Rohit Kochhar v. Vipul Infrastructure Developers Ltd. & Ors.


     of the proceeding, allow him to amend the plaint on such terms as
     may be just for including a claim for such relief.
23. This Court in Babu Lal (supra), upon a combined reading of Sections
    22 and 28(3) of the Specific Relief Act respectively and Section 55
    of the Transfer of Property Act, observed that the it was only “in an
    appropriate case” that the plaintiff was required to separately seek
    the relief of possession, partition, or separate possession, as the
    case may be, along with the relief of specific performance. The Court
    observed that in other cases, say for example a case where the
    exclusive possession of the suit property is with the contracting party,
    a decree for specific performance of the contract of sale simpliciter,
    without specifically providing for delivery of possession, may give
    complete relief to the decree-holder. This, the Court observed, was
    the mandate flowing from Section 55 of the Transfer of Property
    Act. The relevant observations made by the Court are extracted
    hereinbelow:
          “11. Section 22 enacts a rule of pleading. The legislature
          thought it will be useful to introduce a rule that in order to
          avoid multiplicity of proceedings the plaintiff may claim a
          decree for possession in a suit for specific performance,
          even though strictly speaking, the right to possession
          accrues only when suit for specific performance is decreed.
          The legislature has now made a statutory provision
          enabling the plaintiff to ask for possession in the suit for
          specific performance and empowering the court to provide
          in the decree itself that upon payment by the plaintiff of the
          consideration money within the given time, the defendant
          should execute the deed and put the plaintiff in possession.
          12. The section enacts that a person in a suit for specific
          performance of a contract for the transfer of immovable
          property, may ask for appropriate reliefs, namely, he
          may ask for possession, or for partition or for separate
          possession including the relief for specific performance.
          These reliefs he can claim, notwithstanding anything
          contained in the Code of Civil Procedure, 1908, to
          the contrary. Sub-section (2) of this section, however,
          specifically provides that these reliefs cannot be granted
          by the court, unless they have been expressly claimed
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        by the plaintiff in the suit. Sub-section (2) of the section
        recognised in clear terms the well-established rule of
        procedure that the court should not entertain a claim of
        the plaintiff unless it has been specifically pleaded by the
        plaintiff and proved by him to be legally entitled to. The
        proviso to this sub-section (2), however, says that where
        the plaintiff has not specifically claimed these reliefs in his
        plaint, in the initial stages of the suit, the court shall permit
        the plaintiff at any stage of the proceedings, to include one
        or more of the reliefs, mentioned above by means of an
        amendment of the plaint on such terms as it may deem
        proper. The only purpose of this newly enacted provision
        is to avoid multiplicity of suits and that the plaintiff may get
        appropriate relief without being hampered by procedural
        complications.
        13. The expression in sub-section (1) of Section 22 “in
        an appropriate case” is very significant. The plaintiff may
        ask for the relief of possession or partition or separate
        possession “in an appropriate case”. As pointed out earlier,
        in view of Order 2 Rule 2 of the Code of Civil Procedure,
        some doubt was entertained whether the relief for specific
        performance and partition and possession could be
        combined in one suit; one view being that the cause of
        action for claiming relief for partition and possession could
        accrue to the plaintiff only after he acquired title to the
        property on the execution of a sale deed in his favour and
        since the relief for specific performance of the contract for
        sale was not based on the same cause of action as the
        relief for partition and possession, the two reliefs could
        not be combined in one suit. Similarly, a case may be
        visualised where after the contract between the plaintiff
        and the defendant the property passed in possession of
        a third person. A mere relief for specific performance of
        the contract of sale may not entitle the plaintiff to obtain
        possession as against the party in actual possession of
        the property. As against him, a decree for possession
        must be specifically claimed or such a person is not
        bound by the contract sought to be enforced. In a case
        where exclusive possession is with the contracting party,
        a decree for specific performance of the contract of sale
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          simpliciter, without specifically providing for delivery of
          possession, may give complete relief to the decree-holder.
          In order to satisfy the decree against him completely he
          is bound not only to execute the sale deed but also to put
          the property in possession of the decree-holder. This is
          in consonance with the provisions of Section 55(1) of the
          Transfer of Property Act which provides that the seller is
          bound to give, on being so required, the buyer or such
          person as he directs, such possession of the property as
          its nature admits.
          14. There may be circumstances in which a relief for
          possession cannot be effectively granted to the decree-
          holder without specifically claiming relief for possession
          viz. where the property agreed to be conveyed is jointly
          held by the defendant with other persons. In such a case
          the plaintiff in order to obtain complete and effective relief
          must claim partition of the property and possession over
          the share of the defendant. It is in such cases that a relief
          for possession must be specifically pleaded.
                               xxx xxx xxx
          26. Sub-section (3) of Section 28 clearly contemplates that
          if the purchaser or lessee pays the purchase money or
          other sum which he is ordered to pay under the decree,
          the court may on application made in the same suit, award
          the purchaser or lessee such further relief as he may be
          entitled to. Clause (b) of sub-section (3) of Section 28
          contemplates the delivery of possession or partition and
          separate possession of the property on the execution of
          such conveyance or lease. Sub-section (4) of Section 28
          bars the filing of a separate suit for any relief which may
          be claimed under this section.”
                                                 (Emphasis supplied)

24. Section 22 of the Specific Relief Act was considered by this Court in
    Adcon Electronics (supra). The Court was called upon to interpret
    the expression “suit for land” appearing in Clause 12 of the Letters
    Patent to the High Court of Judicature at Bombay, and whether a
    suit for specific performance simpliciter where no prayer seeking
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     possession was made could be said to be a “suit for land” within the
     meaning of the said clause. The Court referred to the decision of a
     five-Judge Bench of the Federal Court in Messrs. Moolji Jaitha and
     Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. reported
     in AIR 1950 FC 83 and observed that there was a difference of
     opinion as to the import of the expression “suit for land”. Inter alia,
     the Court expressed its agreement with the following observations
     made by Justice Mahajan in the said decision:
          “…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. …”
25. The Court further expressed agreement with a Full Bench decision
    of the Madras High Court in P.M.A. Velliappa Chettiar v. Saha
    Govinda Doss reported in AIR 1929 Mad 721 and observed thus:
          “[...] [I]t 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.”
26. Concluding on the basis of the aforesaid, the Court held the following
    as regards the meaning of the expression “suit for land”:
          “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.”
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27. Further, on the aspect of Section 22 of the Specific Relief Act, the
    Court took the view that although the said provision is enabling
    in nature yet as per the mandate of sub-section (2), the relief of
    possession of immovable property which is the subject matter of the
    agreement for sale cannot be granted by the court unless the relief
    for possession is specifically prayed for. The relevant observations
    are extracted hereinbelow:
          “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 of 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.”
28. What appears from a close reading of the decision in Adcon
    Electronics (supra) is that the decision of this Court in Babu Lal
    (supra) was not considered and reliance was placed on the decision
    of the Federal Court in Moolji Jaitha (supra) which was rendered
    in the context of the old Specific Relief Act. The Federal Court had
    no occasion to consider the amended regime brought into being by
    virtue of the Specific Relief Act enacted in 1963. The decision in
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    Babu Lal (supra) took note of the divergent views occupying the
    field prior to the enactment of the Specific Relief Act in 1963. The
    relevant paragraphs from Babu Lal (supra) wherein the conflict in
    position of law was noted are extracted hereinbelow:
         “6. It would be appropriate to refer to the state of law as it
         existed prior to the amendment of the Specific Relief Act
         in 1963. One view was that the decree-holder does not
         acquire title or right to recover possession unless a sale
         deed is executed, in execution of the decree for specific
         performance. In Hakim Enayat Ullah v. Khalil Ullah Khan
         [AIR 1938 All 432 : ILR 1938 All 677 : 1938 All LJ 569 :
         176 IC 436] a Division Bench of the Allahabad High Court
         dealing with the question observed:
              “A decree for specific performance only declares the
              right of the decree-holder to have a transfer executed
              in his favour of the property covered by the decree.
              The decree by itself does not transfer title. That this
              is so is apparent from the fact that in order to get
              title to the property the decree-holder has to proceed
              in execution in accordance with the provisions of
              Order 21 of the Code. So long as the sale deed is
              not executed in favour of the decree-holder, either
              by the defendant in the suit or by the court, the title
              to the property remains vested in the defendant and
              till the execution of the sale deed the decree-holder
              has no right to the possession of the property. It is
              only the execution of the sale deed that transfers
              title to the property.”
         7. In Kartik Chandra Pal v. Dibakar Bhattacharjee [AIR
         1952 Cal 362 : ILR (1950) 1 Cal 350] a Division Bench
         of the Calcutta High Court, however, after reviewing a
         number of reported cases viz. Ranjit Singh v. Kalidasi
         Debi [ILR (1910) 37 Cal 57 : 14 Cal WN 527 : 5 IC 205],
         Madanmohan Singh v. Gaja Prasad Singh [(1911) 14
         CLJ 159 : 11 IC 228], Deonandan Prasad v. Janki Singh
         [(1920) 5 Pat LJ 314 : 1 Pat LT 325 : 56 IC 322] and Atal
         Behary Acharya v. Barada Prasad Banerji [AIR 1931 Pat
         179 : 12 Pat LT 636 : 131 IC 529], observed:
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                “...It is incontestable that in a suit for specific
                performance of contract for the sale of land it is open
                to the plaintiff to join in the same suit two prayers, one
                for the execution of the deed of transfer and another
                for recovery of possession of the land in question....
                                           ***
                We ought to remember in this connection that
                no special form of decree in a suit for specific
                performance is supplied by the Civil Procedure
                Code. Chapter II, Specific Relief Act, deals with the
                various circumstances under which a contract may be
                enforced specifically and where it cannot be allowed.
                When a contract is to be specifically enforced, it
                means simply this that when the parties do not agree
                to perform the contract mutually the intervention of
                the Court is required and the Court will do all such
                things as the parties would have been bound to do
                had this been done without the intervention of the
                Court. A sale of a property after payment of the
                consideration and upon due execution of the deed
                of sale presupposes and requires the vendor to put
                the purchaser in possession of the property. It cannot
                be suggested that when a party comes to Court for
                the specific performance of a contract he is to be
                satisfied with simply the execution of the document
                on payment of the consideration money. The Court
                when allowing the prayer for specific performance
                vests the executing court with all the powers which
                are required to give full effect to the decree for specific
                performance. By the decree for specific performance,
                the Court sets out what it finds to be the real contract
                between the parties and declares that such a contract
                exists and it is for the executing court to do the rest.
                It may be noticed further that a decree in a suit for
                specific performance has been considered to be
                somewhat in the nature of preliminary decree which
                cannot set out in the fullest detail all the different steps
                which are required to be taken to implement the main
                portion of the order directing specific performance of
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             the contract. The executing court is in such a case
             vested with authority to issue necessary directions.”
        8. In Balmukand v. Veer Chand [AIR 1954 All 643 : 1954
        All LJ 255 : 1954 All WR (HC) 424] the decree for specific
        performance of a contract of sale was silent as to the relief
        of delivery of possession even though such relief was
        claimed in the suit. It was held by the Allahabad High Court
        that the executing court was still competent to deliver the
        possession. It was further held that it was not necessary
        in a suit for specific performance either to separately claim
        possession nor was it necessary for the court to pass a
        decree for possession. A decree for specific performance
        of a contract includes everything incidental to be done by
        one party or another to complete the sale transaction, the
        rights and obligations of the parties in such a matter being
        governed by Section 55 of the Transfer of Property Act.
        In Janardan Kishore v. Girdhari Lal [AIR 1957 Pat 701 :
        1957 BLJR 368] the Patna High Court took the view that
        the relief of possession is inherent in a relief for specific
        performance of contract for lease, and the court executing
        a decree for specific performance of such a contract can
        grant possession of the property to the decree-holder
        even though the decree did not provide for delivery of
        possession. In Subodh Kumar Banerjee v. Hiramoni Dasi
        [AIR 1955 Cal 267] the Calcutta High Court took a similar
        view that the right to recover possession springs out of
        the contract which was being specifically enforced and
        not as a result of the execution and completion of the
        conveyance, and as such the judgment-debtor was bound
        to deliver possession to the decree-holder.
        9. In Mohammed Ali Abdul Chanimomin v. Bisahemi
        Kom Abdulla Saheb Momin [AIR 1973 Mys 131 : (1973)
        1 Mys LJ 130] the Mysore High Court observed that the
        liability to deliver possession for specific performance was
        necessarily implied in a decree for specific performance
        directing the defendant to execute a sale deed on the
        principle of clause (f) of sub-section (1) of Section 55 of
        the Transfer of Property Act, according to which the liability
        to deliver possession arises immediately upon execution
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          of a sale deed unless by agreement the date for delivery
          of possession is postponed.
          10. In this state of the law the legislature intervened and
          on the basis of the report of the Law Commission enacted
          Section 22 in 1963 as it stands.”
                                                 (Emphasis supplied)

29. Thus, while the decision in Adcon Electronics (supra) proceeds on
    the understanding that a suit for specific performance of an agreement
    to sell is an action in personam, the decision in Babu Lal (supra)
    takes into account the change brought about by the introduction
    of Sections 22 and 28 to the Specific Relief Act, 1963 respectively
    which has changed the nature of the relief available under Section
    22 by allowing the plaintiff to seek the relief of possession, partition,
    etc. simultaneously along with the prayer for specific performance.
30. Even otherwise, we are of the view that the decision in Adcon
    Electronics (supra), is of no avail to the plaintiff. It was expressly
    held by this Court therein that to determine whether a suit is a “suit
    for land” or not has to be determined on the basis of the averments
    made in the plaint with reference to the reliefs claimed therein. In yet
    another decision Excel Dealcomm (P) Ltd. v. Asset Reconstruction
    Co. (India) Ltd. reported in (2015) 8 SCC 219 dealing with the
    meaning of the expression “suit for land” appearing in Clause 12 of
    the Letters Patent of the High Court of Judicature at Calcutta, this
    Court observed thus:
          “13. A suit for land is a suit in which the relief claimed
          relates to the title or delivery of possession of land or
          immovable property [see Adcon Electronics (P) Ltd. v.
          Daulat [Adcon Electronics (P) Ltd. v. Daulat] ]. Further,
          it is an established rule that to determine whether it is a
          suit for land, the court will look into barely the plaint and
          no other evidence (Indian Mineral & Chemicals Co. v.
          Deutsche 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 not so
          appear, then the suit shall continue under leave granted
          under Clause 12. …
                                  xxx xxx xxx
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          16. It may be noted that the sale certificate sought under
          the prayer requires the delivery of possession of the suit
          property. Thus, we find that the prayer for delivery of
          possession was an implicit one in the present case. The
          prayer as sought in the plaint could not have been granted
          without the delivery of possession of the suit property as
          the sale certificate itself contemplates the delivery of the
          immovable property. Thus, in view of this we find that Adcon
          Electronics [Adcon Electronics (P) Ltd. v. Daulat] 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.”
                                                 (Emphasis supplied)

31. Similarly, in Moolji Jaitha (supra), His Lordship Kania, C.J. held
    that a Suit as a whole should be taken into consideration to find out
    whether it is for the purpose of obtaining a direction for possession
    or a decision on title to land, or the object of the Suit is something
    different but involves the consideration of the question of title to land
    indirectly. His Lordship further held that the nature of the Suit and
    its purpose have to be determined by reading the Plaint as a whole
    and it is not proper to dissect the prayers and consider whether the
    Court has jurisdiction on the limited points. It was further held that
    the inclusion or absence of a prayer is not decisive of the true nature
    of the Suit, nor is the order in which the prayers are arrayed in the
    Plaint. The substance or object of the Suit has to be gathered from
    the averments made in the Plaint and on which the reliefs asked in
    the prayers were based.
32. In the present case, the alleged contract for the sale executed
    between the parties through exchange of communications dated
    16.01.2004 and 20.01.2004 respectively contains the stipulation that
    10% of the total sale consideration has to be paid immediately by the
    plaintiff upon booking, 85% of the sale consideration has to be paid
    by 28.02.2004 and the balance 5% of the sale consideration has to
    be paid at the time of notice for possession of the premises. Further,
    there is a stipulation that the possession of the suit property has to
    be handed over by the defendants to the plaintiff upon payment of
    the balance 5% of the total sale consideration. Further, section 55(1)
    (f) of the Transfer of Property Act also stipulates that the seller of an
[2024] 11 S.C.R.                                                       1311

      Rohit Kochhar v. Vipul Infrastructure Developers Ltd. & Ors.


     immovable property is required to handover the possession of the
     property to the buyer pursuant to the execution of the sale deed.
     It was also held in Babu Lal (supra) that in view of the interplay
     between Sections 22 and 28 of the Specific Relief Act respectively
     and Section 55 of the Transfer of Property Act, the handing over
     of the possession of the immovable property in respect of which a
     decree of specific performance has been granted is only incidental.
33. Thus, it is clear from the terms of the alleged contract between the
    parties that the transfer of possession of the suit property is implicit
    in the said contract and absence of a specific prayer seeking transfer
    of possession would not have any bearing on the character of the
    suit, which is one covered by Section 16(d) of the CPC.
34. If we were to hold otherwise, then it would give rise to a situation
    where a plaintiff would be allowed to file a suit for specific performance
    simplicter and having obtained a decree therein, the plaintiff would
    pray for the transfer of the execution proceedings to the court within
    whose territorial jurisdiction the suit property lies and thereafter seek
    amendment of the plaint to include a prayer for transfer of possession,
    which has been expressly held to be permissible in Babu Lal (supra).
    An interpretation which gives rise to the possibility of such misuse
    of law cannot be allowed.
35. For all the aforesaid reasons, the Special Leave Petitions fail and
    are hereby dismissed.
36. Interim relief granted earlier stands vacated.
37. In view of the aforesaid, it is now for the plaintiff to take appropriate
    steps to present the plaint before the court of competent jurisdiction
    and get his suit adjudicated on merits in accordance with law.
38. Pending applications, if any, also stand disposed of.

     Result of the case: Special Leave Petitions dismissed.



     †
         Headnotes prepared by: Divya Pandey