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TMI Blog2015 (5) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... Apparel Limited (hereinafter referred to as 'Uniworth'), being Respondent No.3 herein, was a company registered in Maharashtra under the Companies Act, 1956. It had an industrial unit in Thane District of Maharashtra. It availed credit facilities from ICICI Bank. Uniworth could not clear the Bank's dues, as a result the Bank assigned their claim in favour of Asset Reconstruction Company India Limited (hereinafter referred to as 'ARCIL'), being Respondent No.1 herein, a company incorporated under Companies Act, 1956 and registered with the Reserve Bank of India as a Company under Section 3 of the Securitization and Reconstruction of Financial Assets Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act'). ARCIL took steps under Section 13 of the SARFAESI Act and took possession of the assets. Allegedly the ARCIL entered into a Private Treaty Agreement dated 13.02.2007 (hereinafter referred to as 'the Agreement') with the appellant Excel Dealcomm Pvt. Ltd. (herein after referred to as 'Excel'), for sale of the said properties for a consideration of Rs. 7.50 Crores. This was to be a sale under SARFAESI Act wherein the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t between ARCIL and Excel was entered into pursuant to Section 13(4) of the SARFAESI Act and even the sale was to be conducted by execution of sale certificate as provided in Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as "Rules"). Therefore, the jurisdiction of civil court is excluded. (c) That the Private Treaty Agreement provided that Mumbai Court would have exclusive jurisdiction. 5. The learned Single Judge of the Calcutta High Court under Original jurisdiction, vide his judgment and order dated 22.12.2011 dismissed the application for revocation of leave and refused to return the plaint for the following reasons: (i) The suit was not a suit for land as the Private Treaty Agreement required creation of security or charge of the assets mentioned in the schedule i.e. "mortgage of immovable properties" and "hypothecation of movable properties"; the nature of this security was not mentioned in the agreement and thus, any security could be created on the said mortgage or hypothecation. Therefore, the learned High Court came to the conclusion that the enforcement of terms of agreement would not lead to the decree in suit for land. (ii) With respect to Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench revoked the leave granted under Clause 12 of the Letters Patent. 8. In the above factual backdrop, following questions arise for our consideration: (i) Whether the suit for specific performance filed by Excel was a "suit for land"? (ii) Whether the Private Treaty Agreement conferred an exclusive jurisdiction on the Court of Mumbai and if so, Whether or not ARCIL waived this clause by participating in impleadment application without protest? (iii) Whether the jurisdiction of civil Court is barred in the present case by virtue of Section 17 of SARFAESI Act? Suit for land 9. Clause 12 of the Letters Patent of the High Court of Calcutta reads: "12. And we do further ordain that the said High Court of Judicature at Fort William in Bengal in the exercise of its ordinary original civil jurisdiction shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific performance of the agreement for sale recorded in the document dated February 13, 2007 being Annexure "A" hereto by directing the Defendant no. 1 and 2 to issue in favour of the plaintiff Sale Certificate in respect of assets mentioned in Schedule 1 to Annexure A hereto and on as is where is basis in terms of the said agreement" 12. The learned counsel for the Respondent has very emphatically argued that this prayer is in effect a prayer for possession of the said properties since the procedure under the Rules for execution of the sale certificate, the transfer of possession is pre-requisite. Therefore, he has submitted that although, the possession is not asked for in direct words but that would be the obvious corollary to granting of the prayer. Further, another point which has been emphasized on behalf of respondent is that the prayer requires sale to be effected in terms of the Agreement, and therefore, the entire agreement may be read as a part of the prayer. 13. On the question of suit for specific performance of an agreement to sell being a suit for land, this Court has laid down a clear principle in Adcon Electronics Pvt. Ltd. vs. Daulat Ram and Anr., (2001) 7 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exclusive jurisdiction 15. Now, we shall consider as to which court has the jurisdiction to entertain and try the suit. Clause 5 of the Agreement entered into between the parties reads as under: "The payment/cheque shall be drawn and made payable in Mumbai. The jurisdiction shall be Courts of Mumbai." Clause 9(e)(viii) of the Agreements further reads as follows: "Disputes, if any, shall be subject to the jurisdiction of Mumbai Court/Tribunals only" It is clear from these two clauses that the intention of the parties to the Agreement was to restrict limitation to the forums/courts of Mumbai only. This Court in Swastik Gases P. Ltd. vs. Indian Oil Corporation Ltd., (2013) 9 SCC 32, has held as under: "The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the Courts in Kolkata had jurisdiction to entertain the disputes between the parties." Therefore, we are of the opinion that the Courts of Mumbai were granted exclusive jurisdiction as per the Agreement and we find no reason to create any exception to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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