IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 915 of 2010(O)
1. M/S CROMPTON GREAVES LIMITED,
... Petitioner
Vs
1. M/S NAVANEETH HOTELS PVT LTD.,
... Respondent
For Petitioner :SRI.T.RAMPRASAD UNNI
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/01/2010
O R D E R
C.R.
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.915 OF 2010 ()
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Dated this the 18th day of January, 2010
J U D G M E N T
The writ petition is filed seeking mainly the following
reliefs:
i. to call for the records leading to the issue
of Ext.P3 and quash the same by issuance of
a writ of certiorari or any other appropriate
writ, order or direction.
2. Petitioner is the defendant in O.S.No.44 of 2008 on
the file of the Additional Sub Court, North Parur. The above
suit is one for specific performance of an agreement of sale,
and the respondent is the plaintiff. Petitioner/defendant
challenged the jurisdiction of the court to entertain the suit on
the ground that as per the terms of the agreement between
the parties, it has been agreed that only the courts in
WPC.915/10 2
Ernakulam have territorial jurisdiction to adjudicate the
disputes between them. An interlocutory application moved
by the petitioner canvassing the question of jurisdiction
raising contentions as above, after hearing both sides, was
turned down by the learned Sub Judge vide Ext.P3 order.
Propriety and correctness of that order is challenged in the
writ petition by the petitioner/defendant invoking the
supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
3. I heard the learned counsel for the petitioner. Having
regard to the submissions made and taking note of the facts
and circumstances presented with reference to Ext.P3 order
challenged in the writ petition, I find no notice to the
respondent is necessary, and hence, it is dispensed with. The
learned counsel for the petitioner/defendant assailed Ext.P3
order passed by the court below contending that when the
parties have specifically agreed to resolve their disputes
arising out of the agreement conferring jurisdiction in the
courts at Ernakulam, the suit could not have been entertained
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in any other court. Inviting my attention to paragraph 7 of the
Ext.P3 order, it is contended that the view expressed by the
court below that the court at North Parur is also coming
within Ernakulam, and so much so, the suit presented before
the court at North Parur is also maintainable, has no basis or
merit as the parties have specifically agreed in their
agreement, which of the courts in Ernakulam shall have
jurisdiction to entertain suits in the event of disputes between
the parties. The learned counsel for the petitioner relied on
Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd.
(2004 (4) SCC 671), Harshad Chiman Lal Modi v. DLF
Universal Ltd. and another ( (2005) 7 SCC 791),
Tatanagar Transport Corporation v. Bharat Trading
Agency (1974 KLT 105) and Jatinder Nath v. Chopra
Land Developers (P) Ltd. and another ((2007) 11 SCC
453) to contend that where there are more than one courts
having jurisdiction to entertain the suit, it is open to the
parties to provide for and agree which of the two courts have
jurisdiction, and when that be so, the court which has been
agreed upon by the parties alone has jurisdiction to entertain
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the suit. Among the above decisions, only one of them, that is,
Harshad Chiman Lal Modi v. DLF Universal Ltd. and
another ((2005) 7 SCC 791) deal with the question of
jurisdiction in respect of a suit involving immovable property.
All the other decisions referred to by the counsel, it is seen,
related to agreement between the parties, not involving the
determination of any right or interest in immovable property.
Section 16(d) of the Code of Civil Procedure specifically
mandates that in relation to the determination of any right or
interest to the immovable property, the suit should be
instituted where the subject matter is situate. The apex court
in the decision referred to by the counsel Harshad Chiman
Lal Modi v. DLF Universal Ltd. and another ((2005) 7
SCC 791) has stated in unambiguous terms that a suit for
specific performance of an agreement of sale of an immovable
property seeking relief of execution of sale deed and delivery
of possession has to be filed within the territorial jurisdiction
where the property is situate, and no court other than that has
any power to deal with and decide right or interest in such
property, and such jurisdiction cannot be conferred by
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agreement. The apex court, dilating on that question has
observed thus: “The case on hand relate to specific
performance of a contract and possession of an immovable
property. Section 16 of the CPC deals with such case and
jurisdiction of the competent court where such suit can be
instituted. Under the said provision, a suit can be instituted
where the property is situated. No court other than the court
where the property is situated can entertain such suit. Hence,
even if there is an agreement between the parties to the
contract, it has no effect and cannot be enforced.” When that
be the law settled by the apex court in respect of a suit for
specific performance of an agreement of sale involving an
immovable property, it is futile to contend that the parties
have agreed to provide jurisdiction on a court where the
property covered by the contract is not situated, and that
court, in view of the specific mandate under Section 16(d) of
the CPC, cannot have any jurisdiction even if the parties
agreed to resolve disputes over the agreement of sale in such
a court. Though I do not approve of the observations and
views made by the learned Sub Judge in Ext.P3 order that Sub
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court, North Parur, as being part of Ernakulam, can also be
considered as a competent court under the agreement entered
by the parties, in the given facts of the case and on the
question of law applicable, I find the conclusion formed by the
court below that it has jurisdiction to entertain the suit is
unassailable. In fact, the court below alone, in the territorial
jurisdiction of which the immovable property covered by the
agreement of sale is situate, the specific performance of which
was sought for in the suit, has jurisdiction to entertain the
suit. There is no merit in the writ petition, and it is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp