NEW MOFUSSIL CO LTD Vs. SHANKERLAL NARAYANDAS MUNDADE

JUDGEMENT

(1.) THIS is an appeal by the defendants from a decree of the First Class Subordinate Judge at Dhulia allowing the plaintiff-respondent's suit for specific performance of a contract for sale of a cotton factory at Dhulia. The factory was one of several belonging to defendant No.1, a limited company with its registered office in Bombay which was in liquidation.

(2.) THE plaintiff's case is that the agreement was finally concluded in Bombay on July 7, 1936, when as the result of a conversation between one Nandurdikar, a broker acting for the plaintiff, and Sir Shapurji Billimoria, one of the liquidators, and of a further conversation between Nandurdikar and the company's solicitor Manekshaw the terms of the bargain were all settled and a draft agreement containing these terms was. drawn up which was engrossed on the following morning. Neither the draft agreement nor the engrossment was signed by either party, and after several more meetings between Nandurdikar and Manekshaw, the latter, acting under instructions from Sir Shapurji, declined to proceed further and said that the negotiations were at an end. This happened on July 10 according to the defendants and on July 11 according to the plaintiff. On July 13 an agreement was entered into to sell the factory and another factory to defendants Nos. 2 and 5 and a conveyance in their favour was executed on July29. THE plaintiff claimed to be entitled to specific performance of the agreement contained in the draft agreement and the engrossment thereof. Among other reliefs he asked for possession of the factory. THE subsequent purchasers were made parties under Section 27(b) of the Specific Relief Act.

(3.) THE plaintiff is entitled to be paid the costs awarded from defendants Nos. 2 to 5 out of the money which he will deposit in Court. THE balance of the money to be paid to defendants Nos. 2 to5. 5. I will deal first of all with the question of jurisdiction. THE trial Judge held that the case fell under Section 16, clauses. (a) and (d), of the Civil Procedure Code. That section provides that subject to the pecuniary or other limitations prescribed by any law, suits (a) for the recovery of immoveable property with or without rent or profits and (d) for the determination of any other right to or interest in immoveable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. THEre is a proviso that a suit to obtain relief respecting, or compensation for wrong to, immoveable 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 defendant resides or carries on business. Learned counsel for the appellants has argued that as against defendant No.1 this is a suit for specific performance and nothing more. That is to say, it is a suit in personam and does not come under either Clause (a) or Clause. (d) of Section 16.In that connection he cited Hunsraj v. Runchordas (1905) 7 Bom. L.R. 319 and Velliappa Chettiar v. Govinda Dass (1928) I.L.R. 52 Mad. 809, in which the nature of a suit for specific performance is explained. But those were not cases in which possession was or could have been asked for. In our case the question of jurisdiction has to be determined on the footing that specific performance and possession of the property are both asked for.