M/S. Acme Papers Ltd. vs M/S. Chintaman Developers Pvt. Ltd.

2024 INSC 248 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION TRANSFER PETITION (CIVIL) NO.2664 of 2023

M/S ACME PAPERS LTD. ...PETITIONER(S)

VERSUS

M/S. CHINTAMAN DEVELOPERS PVT. LTD. & ORS. …RESPONDENTS(S)

WITH TRANSFER PETITION (CIVIL) NO (s).499 OF 2024

M/S. CHINTAMAN DEVELOPERS PVT. LTD. ...PETITIONER(S)

VERSUS M/S ACME PAPERS LTD. …RESPONDENTS(S)

JUDGMENT

PRASANNA B. VARALE, J.

Signature Not Verified

1. Digitally signed by Indu Marwah This transfer petition has been filed by the petitioner seeking Date: 2024.03.22 19:16:34 IST Reason:

transfer of RCS No.128/A/2023, filed by respondent no.1, from

1 the Court of District Judge, Sehore, Madhya Pradesh to the City

Civil Court, Calcutta, West Bengal.

2. The parties had entered into a Memorandum of

Understanding (hereinafter referred to as “MoU”) on 10.11.2022

whereby respondent no.1 had agreed to purchase land

admeasuring an area of approx. 74.06 acres (“suit property”) on an

“as is whatever there is” basis for a consideration of

Rs.20,69,92,000/-. It was also agreed that the petitioner would

obtain all necessary approvals/no objection certificates (“NOCs”)

for the transfer of suit property and in case of unprecedented delay

in obtaining the same, the petitioner would be at liberty to deal

with suit property by treating the MoU as cancelled and/or

terminated.

3. Subsequently, the petitioner could not obtain the necessary

approvals required for selling the suit property and thus, the

respondents filed a suit for specific performance of the MoU, which

the petitioner now seeks to transfer to Calcutta where they have

already filed a suit for declaration that the MoU stands terminated

and is incapable of being acted upon.

Both the parties are before us with different Transfer Petitions,

seeking transfer of the case filed by the opposite party. 2

4. Counsel for the petitioner submits that the MoU was

executed in Calcutta and the suit filed by them goes to the root of

the matter, i.e., validity and enforceability of the MoU. It is

contended that the respondent’s suit for specific performance

would only arise if the agreement is valid. As such, the reliefs

sought by the petitioner are required to be decided first and cannot

be raised as an issue before the District Judge, Sehore as it is

already an issue raised by them in their suit.

Per contra, counsel for respondent no.1 submits that the

question of the existence of the MoU or the location where it was

entered into has no nexus with the choice of jurisdiction. Whereas,

the existence of the MoU and its specific performance are

intrinsically connected and relate directly to the suit property,

which is located in Sehore, Madhya Pradesh. Further, it is

contended that the petitioner has filed other suits in Sehore and is

also appearing in a matter before the Debt Recovery Tribunal,

Jabalpur, Madhya Pradesh in connection with the suit property.

5. We have heard the learned counsel for the parties and have

perused the material on record.

6. It is an admitted fact that the suit property is situated in

Sehore, Madhya Pradesh. Section 16, CPC inter alia provides that 3 suits for the determination of any other right to or interest in

immovable property shall be instituted in the Court within the

local limits of whose jurisdiction the property is situate. Thus, the

petitioner’s reliance on the cause of action arising in Calcutta due

to the MoU being executed at Calcutta is completely erroneous in

view of Section 20, CPC, which provides that a suit can be initiated

where the defendant resides or cause of action arises is a residuary

provision only applicable to cases beyond those in Section 15 to

19, CPC. Thus, this Section has no application in this case as

when the subject matter of the MoU is the suit property located at

Sehore. This Court in Harshad Chiman Lal Modi v. DLF

Universal Ltd., (2005) 7 SCC 791 held the following:

“21. A plain reading of Section 20 of the Code leaves no room for doubt that it is a residuary provision and covers those cases not falling within the limitations of Sections 15 to 19. The opening words of the section, “subject to the limitations aforesaid” are significant and make it abundantly clear that the section takes within its sweep all personal actions…”

7. All the same, the suit filed at Sehore, Madhya Pradesh was

earlier in time. A perusal of the materials placed before us would

show that respondent no.1 filed its suit on 12.05.2023 at Sehore,

Madhya Pradesh and the petitioner filed its vakalatnama therein

4 on 28.06.2023. Thereafter, on 20.07.2023 the petitioner filed its

suit in Calcutta and two days later the petitioner filed its written

statement in Sehore.

Section 10, CPC inter alia mandates that no Court shall

proceed with the trial of any suit in which the matter in issue is

also directly and substantially in issue between the parties,

litigating under the same title, where such suit is pending in the

same or any other Court in India having jurisdiction to grant the

relief claimed. It has been incorporated to avoid multiplicity of

proceedings on issues which are directly and substantially in issue

in the previously filed suit.

In Gupte Cardiac Care Centre and Hospital v. Olympic

Pharma Care (P) Ltd., (2004) 6 SCC 756 this Court has held that

while considering a Transfer Petition under Section 25, CPC regard

must be had for Section 10, CPC. This is what was said:

“5. The suit at Nashik has been instituted first in point of time. By reference to Section 10 CPC, the trial of the suit at Delhi, being the latter suit, shall be liable to be stayed. For the exercise of its discretionary jurisdiction under Section 25 of the Code of Civil Procedure, 1908 the only consideration which is relevant is “expediency for ends of justice”. The court will have regard to and respect for the rule enacted in Section 10 of the Code. Of course, the considerations such as which is the place where most of the 5 evidence is available, convenience of the parties and witnesses, which one of the two places is more convenient to access and attend and so on are also the factors to be kept in view and may in an appropriate case persuade this Court to direct a transfer of case in departure from the rule underlying Section 10 of the Code.

All would depend on the facts and circumstances of a given case.”

It is also of relevance that since the suit property is located

in Sehore, all property records and government documents would

be present in the vicinity, including most witnesses. Further, it

appears from the counter affidavit that the suit property is

mortgaged to Bank of Baroda, through its Bhopal branch and an

auction has taken place on the strength of which the Bank, as well

as the auction purchasers have been impleaded in the suit filed at

Sehore vide Order dated 01.11.2023.

8. Under these circumstances, we dismiss Transfer Petition

No.2664 of 2023.

9. Resultantly, Transfer Petition (Civil) No. 499 of 2024 is

allowed and hence TS No.1346 of 2023 pending before the City

Civil Court at Calcutta, West Bengal is hereby transferred to the

Court of Principle Judge, Sehore, Madhya Pradesh.

6 The petitioners (in T.P.(c) No.2664/2023) are at liberty to

withdraw the suit that has been transferred and file a counter

claim in RCS No.128/A/2023 before the Court of Principle Judge,

Sehore, Madhya Pradesh in accordance with law.

10. After the matter is transferred to Court of Principle Judge,

Sehore, Madhya Pradesh, the transferee Court shall give fresh

notice to all the parties by fixing a date and the aforesaid matter

shall proceed at the transferee Court from the stage it was left at

the City Civil Court, Calcutta, West Bengal.

11. The records of the case be transferred to the transferee Court

forthwith.

12. Pending applications, if any, stand disposed of.

……...……….………………….J. [SUDHANSHU DHULIA]

..….....………………………….J. [PRASANNA B. VARALE]

New Delhi.

March 22, 2024.

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