Sunday, March 1, 2015

Specific Performance of Agreement for Sale - Leave under clause XII of Letters Patent

Bombay High Court trademark lawThe Hon’ble Bombay High Court has held in Annete Bulchandani vs Mrs. Iris Fernandes & Ors that a suit for specific performance of an agreement for sale of land situated outside the jurisdiction of the Hon’ble Bombay High Court will be maintainable in the Court, after seeking leave under Clause 12 of the Letters Patent, even if the proposed Plaintiff has alternatively  prayed for setting aside sale of the land to a subsequent transferee. Judgment  can be found here

Extract of the Judgment can be found below:
“…17. Shorn of all appendages and details, the controversy in the present suit involves enforcement of personal obligations of the Defendant vendors to convey the property to the Plaintiff. It is alleged that in breach and defiance of these obligations, the Defendant vendors have entered into a collusive transaction with third party purchasers. The Plaintiff seeks alternatively a declaration of invalidity of this transaction or joinder of the transferees in passing title to the Plaintiff. The plea seeking cancellation or invalidity of the subsequent conveyance arises in the present suit only incidentally. The suit is essentially for an enforcement of a personal obligation undertaken by the Defendant vendors. Whichever be the form of decree that may have to be passed in the suit, the effect is to pass the title effectively to the Plaintiff in fulfillment of that personal obligation for the purpose of which alone the suit is filed. That the suit incidentally involves denuding of title of a third party does not change the character of the suit. The suit is still very much a suit for enforcement of a personal obligation undertaken by the original vendor….

… 19. Since I have come to the conclusion that the leave has been properly granted in favour of the Plaintiff, I do not propose to elaborately consider the Plaintiff's objection to the permissibility of the application for revocation of leave on the ground of delay. Suffice it to say that the question whether or not the suit is a suit for land and consequently whether or not the leave is properly granted, goes to the root of the matter, which cannot be disposed of on the ground of mere delay. The Supreme Court decision in the case of  Chittaranjan Mukherji v.Barhoo Mahto [A.I.R. 1953 S.C. 472 (Vol. 40, C.N. 115)] relied upon by the learned Counsel is clearly distinguishable. In the first place, it was not a case where the Court inherently lacked jurisdiction. The question before the Court placed in the application for revocation in that case was that the Court in which the suit was instituted was not a 'forum convenience', and therefore, the leave ought to be revoked. In our case, if indeed the suit were a suit for land, this Court would inherently lack jurisdiction to entertain the suit. Secondly, in that case the party applying for the revocation of leave granted under Cl. 12 to file a certain suit in Calcutta had not only acquiesced in the steps taken by the plaintiff to carry forward the progress of the suit incurring considerable expenses but, made use of the existence of the suit to obtain such interlocutory reliefs as he thought would be to his own advantage, at the hands of the Court at Calcutta. In the facts of that case the Supreme Court held that the proceedings in the suit had been allowed to reach a stage where it would result in grave injustice if the Court were to hold that the forum convenient was not Calcutta but Bihar and revoke the leave on that ground. These facts are clearly distinguishable from the facts in our case.”



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