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Headway Projects, West Shenoy Nagar, Chennai & Another v/s Meena Jawahar Palaniappan


Company & Directors' Information:- C AND C PROJECTS LIMITED [Active] CIN = U74999HR2007PLC036644

Company & Directors' Information:- Y K M PROJECTS PRIVATE LIMITED [Active] CIN = U40109TG2008PTC057263

Company & Directors' Information:- T G R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200KA2012PTC062702

Company & Directors' Information:- S G PROJECTS LIMITED [Active] CIN = U65999WB1990PLC049684

Company & Directors' Information:- B C C PROJECTS PVT LTD [Active] CIN = U74899DL2001PTC112102

Company & Directors' Information:- J K S PROJECTS LIMITED [Active] CIN = U45400WB2011PLC157565

Company & Directors' Information:- D M P PROJECTS PVT LTD [Active] CIN = U27109WB2006PTC107513

Company & Directors' Information:- T & T PROJECTS LIMITED [Active] CIN = U45201AS2008PLC008641

Company & Directors' Information:- W AND W PROJECTS PRIVATE LIMITED [Active] CIN = U65910DL1989PTC036754

Company & Directors' Information:- E M C PROJECTS PVT LTD [Active] CIN = U29248WB1964PTC026261

Company & Directors' Information:- H AND V PROJECTS PRIVATE LIMITED [Active] CIN = U72400DL2011PTC220047

Company & Directors' Information:- M A PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2005PTC135093

Company & Directors' Information:- S. V. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70100AP1998PTC029024

Company & Directors' Information:- M V PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45202KA2008PTC045272

Company & Directors' Information:- S V S PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200AP2015PTC096787

Company & Directors' Information:- A T E PROJECTS PRIVATE LIMITED [Active] CIN = U74999DL1999PTC102246

Company & Directors' Information:- U W T PROJECTS LIMITED [Active] CIN = U45200AP2004PLC043198

Company & Directors' Information:- J J PROJECTS PVT LTD [Active] CIN = U24231WB1986PTC040246

Company & Directors' Information:- Z H PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400WB2012PTC184307

Company & Directors' Information:- HEADWAY PROJECTS PRIVATE LIMITED [Active] CIN = U70102WB2016PTC209553

Company & Directors' Information:- K & J PROJECTS PRIVATE LIMITED [Active] CIN = U45203MH2004PTC150165

Company & Directors' Information:- T & I PROJECTS LTD [Active] CIN = L29130WB1984PLC038232

Company & Directors' Information:- B 2 R PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2013PTC189971

Company & Directors' Information:- C M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC130580

Company & Directors' Information:- N G PROJECTS LIMITED [Active] CIN = U45201GJ2003PLC042152

Company & Directors' Information:- E AND C PROJECTS PRIVATE LIMITED [Active] CIN = U29150DL2002PTC115297

Company & Directors' Information:- B. D. R. PROJECTS PRIVATE LIMITED [Active] CIN = U45202TG1998PTC028780

Company & Directors' Information:- J T L PROJECTS PRIVATE LIMITED [Active] CIN = U70101KL2006PTC019439

Company & Directors' Information:- V AND S PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL1996PTC079487

Company & Directors' Information:- L S R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U07010KA2005PTC036041

Company & Directors' Information:- V R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400AP2007PTC054901

Company & Directors' Information:- D C R PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2007PTC056307

Company & Directors' Information:- R. R. PROJECTS PVT LTD [Active] CIN = U45200TG1982PTC003711

Company & Directors' Information:- S H PROJECTS PRIVATE LIMITED [Active] CIN = U74996DL2006PTC149971

Company & Directors' Information:- S R PROJECTS INDIA PVT LTD [Active] CIN = U45207WB1981PTC033286

Company & Directors' Information:- L E PROJECTS PRIVATE LIMITED [Active] CIN = U45303WB2005PTC102555

Company & Directors' Information:- M. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC131902

Company & Directors' Information:- J V PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069037

Company & Directors' Information:- B N PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2009PTC058067

Company & Directors' Information:- J P PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2011PTC165990

Company & Directors' Information:- R K PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC043660

Company & Directors' Information:- A B PROJECTS PRIVATE LIMITED [Active] CIN = U45200MH2004PTC149404

Company & Directors' Information:- A K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG1996PTC023179

Company & Directors' Information:- S N M PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2010PTC040243

Company & Directors' Information:- J AND H PROJECTS PRIVATE LIMITED [Active] CIN = U45200GJ2013PTC074010

Company & Directors' Information:- N S PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2007PTC117882

Company & Directors' Information:- H S PROJECTS PRIVATE LIMITED [Active] CIN = U45208DL2006PTC153706

Company & Directors' Information:- N M PROJECTS PRIVATE LIMITED [Active] CIN = U29219DL2009PTC186728

Company & Directors' Information:- K. V. PROJECTS PRIVATE LIMITED [Active] CIN = U70102WB2012PTC188439

Company & Directors' Information:- K R S PROJECTS PRIVATE LIMITED [Active] CIN = U70102AP2012PTC082232

Company & Directors' Information:- B S C PROJECTS PRIVATE LIMITED [Active] CIN = U45200DL2011PTC227768

Company & Directors' Information:- J K PROJECTS PRIVATE LIMITED [Active] CIN = U45203GJ2001PTC039576

Company & Directors' Information:- F C C PROJECTS PRIVATE LIMITED [Active] CIN = U29248UP1982PTC005786

Company & Directors' Information:- S N PROJECTS LIMITED [Active] CIN = U85110KA1996PLC021040

Company & Directors' Information:- B. D. PROJECTS PRIVATE LIMITED [Amalgamated] CIN = U45400WB2010PTC147620

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U29100DL2010PTC209136

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2010PTC209136

Company & Directors' Information:- C B PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB1997PTC085237

Company & Directors' Information:- G G PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL1998PTC091501

Company & Directors' Information:- V M G PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45400WB2011PTC164117

Company & Directors' Information:- M. L. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151513

Company & Directors' Information:- R N D PROJECTS PRIVATE LIMITED [Active] CIN = U70102DL1996PTC080051

Company & Directors' Information:- M. K. N. PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2009PTC196755

Company & Directors' Information:- M B R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45300KA2009PTC049005

Company & Directors' Information:- G S P PROJECTS PRIVATE LIMITED [Active] CIN = U45201WB1992PTC057116

Company & Directors' Information:- K P S PROJECTS PRIVATE LIMITED [Active] CIN = U70102TG2005PTC046280

Company & Directors' Information:- E AND V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102TG2004PTC042622

Company & Directors' Information:- T M R PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2010ULT211007

Company & Directors' Information:- S C T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2008PTC184418

Company & Directors' Information:- P A PROJECTS PRIVATE LIMITED [Active] CIN = U45208WB1997PTC083907

Company & Directors' Information:- N K D PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2008PTC128819

Company & Directors' Information:- A I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45203WB2000PTC091229

Company & Directors' Information:- P N PROJECTS PRIVATE LIMITED [Active] CIN = U45202DL2016PTC289494

Company & Directors' Information:- V AND M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2005PTC139731

Company & Directors' Information:- K K PROJECTS PVT LTD [Strike Off] CIN = U70200WB1995PTC073058

Company & Directors' Information:- S L PROJECTS PRIVATE LIMITED [Active] CIN = U45400AN2009PTC000109

Company & Directors' Information:- PROJECTS PVT LTD [Strike Off] CIN = U45201WB1951PTC019759

Company & Directors' Information:- V K M PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2011PTC045725

Company & Directors' Information:- K P PROJECTS PVT LTD [Active] CIN = U70101WB1996PTC077397

Company & Directors' Information:- C R PROJECTS PRIVATE LIMITED [Active] CIN = U45400PB2009PTC032572

Company & Directors' Information:- N D B K PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U27100PB2012PTC036987

Company & Directors' Information:- N P R PROJECTS INDIA PRIVATE LIMITED [Strike Off] CIN = U45400TN2012PTC086360

Company & Directors' Information:- G P N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U18101TZ2006PTC012749

Company & Directors' Information:- D H V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2005PTC045988

Company & Directors' Information:- V K R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC046370

Company & Directors' Information:- I N C PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2005PTC101620

Company & Directors' Information:- J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC136510

Company & Directors' Information:- D J PROJECTS PRIVATE LIMITED [Active] CIN = U15201DL2005PTC134979

Company & Directors' Information:- M S C K PROJECTS PRIVATE LIMITED [Converted to LLP] CIN = U70101DL2005PTC135407

Company & Directors' Information:- B R T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45203TG1996PTC025021

Company & Directors' Information:- T AND M PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201KA2008PTC045199

Company & Directors' Information:- A C G PROJECTS PRIVATE LIMITED [Active] CIN = U45201UP1999PTC024162

Company & Directors' Information:- C K B PROJECTS INDIA LIMITED [Strike Off] CIN = U70102WB2012PLC188740

Company & Directors' Information:- N E PROJECTS LTD [Strike Off] CIN = U16009AS1999PLC005873

Company & Directors' Information:- D R PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109612

Company & Directors' Information:- I J PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102KA2009PTC049320

Company & Directors' Information:- G C N PROJECTS PRIVATE LIMITED [Active] CIN = U45200KA2011PTC061371

Company & Directors' Information:- L N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2004PTC043064

Company & Directors' Information:- H B PROJECTS PVT LTD [Amalgamated] CIN = U45201WB1993PTC058846

Company & Directors' Information:- I. T. G PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC063342

Company & Directors' Information:- P. S. PROJECTS PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U70109WB2011PTC170655

Company & Directors' Information:- A R N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45202MH2010PTC199122

Company & Directors' Information:- H. K. PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400WB2007PTC116467

Company & Directors' Information:- D M C PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74140WB2005PTC105972

Company & Directors' Information:- S P PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45400DL2010PTC203910

Company & Directors' Information:- J R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109HR2012PTC045119

Company & Directors' Information:- C N R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45201KA2007PTC041355

Company & Directors' Information:- J Y R PROJECTS PRIVATE LIMITED [Active] CIN = U70109TG2021PTC153917

Company & Directors' Information:- S C N PROJECTS PRIVATE LIMITED [Active] CIN = U70109TG2021PTC155544

Company & Directors' Information:- A J PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45201MH2006PTC164622

Company & Directors' Information:- J M PROJECTS PRIVATE LIMITED [Active] CIN = U45200MP2007PTC019336

Company & Directors' Information:- L S S PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2013PTC059508

Company & Directors' Information:- A TO Z PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70101DL1995PTC069527

Company & Directors' Information:- G I T T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG2006PTC051193

Company & Directors' Information:- Z & I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45309TN2007PTC064972

Company & Directors' Information:- B. G. PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2012PTC231270

Company & Directors' Information:- NAGAR CORPORATION PRIVATE LIMITED [Active] CIN = U74900PN2013PTC148356

Company & Directors' Information:- P S R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45400TG2015PTC101191

Company & Directors' Information:- E & E PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2015PTC075033

Company & Directors' Information:- B B R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045165

Company & Directors' Information:- M V R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045166

Company & Directors' Information:- L V S PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200TG2010PTC068286

Company & Directors' Information:- R N V PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2011PTC044240

Company & Directors' Information:- K L PROJECTS PRIVATE LIMITED [Active] CIN = U27104DL2003PTC119655

Company & Directors' Information:- K S M PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2009PTC194824

Company & Directors' Information:- 3 G PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC276736

Company & Directors' Information:- I S R PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2005PTC138210

Company & Directors' Information:- L V PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2014PTC272838

Company & Directors' Information:- M K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2002PTC117787

Company & Directors' Information:- B V M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC131352

Company & Directors' Information:- K. J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL2006PTC152898

Company & Directors' Information:- V N R PROJECTS PRIVATE LIMITED. [Active] CIN = U45400AP2008PTC060896

Company & Directors' Information:- C R R PROJECTS PRIVATE LIMITED [Active] CIN = U45400AP2015PTC097217

Company & Directors' Information:- A R P PROJECTS PRIVATE LIMITED [Active] CIN = U45200HR2012PTC044979

Company & Directors' Information:- H V PROJECTS PVT LTD [Active] CIN = U45202HR1997PTC033617

Company & Directors' Information:- V & V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109KA2005PTC037578

Company & Directors' Information:- M S S PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45202KA2005PTC037905

Company & Directors' Information:- C AND T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74140GJ2009PTC057480

Company & Directors' Information:- A AND B PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2007PTC051077

Company & Directors' Information:- B. P. S. R. PROJECTS PRIVATE LIMITED [Active] CIN = U70109RJ2018PTC063238

Company & Directors' Information:- R M S PROJECTS PVT LTD [Strike Off] CIN = U74210DL1975PTC007946

Company & Directors' Information:- A. R. PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40200DL2007PTC161559

    Application Nos. 1828 of 2020 & 4423 of 2019 in C.S. No. 428 of 2019

    Decided On, 21 October 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE V. PARTHIBAN

    For the Applicants: P.C. Harikumar, Advocate. For the Respondent: B.S. Jothiraman, Advocate.



Judgment Text

(Prayer: Application is to revoke the leave granted in Application No. 4423 of 2019 dated 01.07.2019 on the file of this Court and pass such further or others.

1. The application has been filed seeking to revoke the leave granted by this Court in Application No.4423 of 2019 dated 01.07.2019. This Court has granted leave to sue the 4th defendant, who is not residing within the jurisdiction of this Court.

2. The suit has been filed for the following prayer;

(a). directing the defendants 1 to 4 jointly and severally to pay a sum of Rs.3,90,00,000/- (Rupees three crores ninety lakhs only) being the principal and interest sum of Rs.2,39,21,260/- (Rupees two crores thirty nine lakhs and twenty one thousand and two hundred and sixty only) till the date of the plaint totalling in all a sum of Rs.6,29,21,260/- (Rupees six crores twenty nine lakhs and twenty one thousand and two hundred and sixty only);

(b). directing the defendants jointly and severally to pay interest on Rs.3,90,00,000/- at 24% p.a from the date of the plaint till the date of realization;

(c). in default, directing sale or foreclosure of mortgaged 'A', 'B', 'C' Schedule properties more fully described in the schedule, under Order 34 CPC';

(d). in case the proceeds of the sale are found to be insufficient to pay the amount due to the plaintiff, then that liberty be reserved to the plaintiff to apply for an order for the balance;

3. The applicants herein are the defendants 1 & 2 in the suit. The objections against granting leave by this Court by the applicants herein principally premised on the fact that the respondent/plaintiff had executed a mortgage deed on 25.03.2015 in respect of Schedule 'C' property at the office of the Sub Registrar, Madhuranthagam, which is situated outside the jurisdiction of this Court. According to the applicants herein, the plaintiff herself has admitted that the defendants have undertaken to execute a registered mortgage deed by deposit of title in respect of Schedule 'A' mentioned properties, therefore there is no mortgage has been created in respect of Schedule 'A' mentioned property. While so, in the entire plaint, the plaintiff has pleaded that as if the Schedule 'A' property of the plaint has been mortgaged by deposit of title deeds and seeking relief against the said property under Order 34 Rule 1 of CPC.

4. When the suit of this nature has been filed and when the entire lease is with regard to mortgage being created in respect of Schedule 'C' property and even other Schedule properties ' B' & 'D' being situated outside the jurisdiction of this Court, the leave granted by this Court is to be recalled. As far as Schedule 'A' property is concerned, that is not the subject matter of lis as far as redemption of mortgage is concerned, admittedly.

5. At the outset, the learned counsel appearing for the applicants referred to Order 37 Rule 1 of the Original side Rules, which reads as under;

“Plaint to be filed with certificate of encumbrances.

1. Every plaint shall contain an allegation that the plaintiff has caused a search to be made in the office of the Registrar of Assurances of the district, or sub-district, in which, the immovable property comprised in the mortgage or subject to the charge sued on, is situate for a period of not less than twelve years prior to the date of presentation of the plaint, or for the period subsequent to the mortgage sued on, whichever may be shorter, and that he is not aware that any person other than the persons mentioned in the plaint, has any interest in the said property. The certificate of the Registrar of Assurances, stating the result of search, shall be filed with the plaint.

The cost of making the search, and filing the certificate shall be costs in the cause. Provided that a plaint which does not comply with the above provisions shall be returned for rectification of defects within a time to be fixed, and shall be rejected if it be not complied with within the time fixed.”

According to the above rules, the land must be situated within the jurisdiction of this Court in order to maintain the suit. In this regard, Rule 1 of Order 37 has not been complied with as could be demonstrated by very averments as contained in the plaint itself.

6. The learned counsel further contended that in terms of Order 34 of CPC, there should have been a prayer for preliminary decree seeking foreclosure in the suit relating to mortgage. Such a prayer is not there in the plaint, therefore, on this ground also the leave granted by this Court is liable to be revoked. With regard to factum that Schedule 'A' property which alone is situated within the jurisdiction of this Court, he would draw the attention of this Court to paragraph 5 of the plaint. In the said paragraph, the plaintiff herself has stated that the 2nd defendant/applicant offered in Clause 9 of the MOU dated 25.03.2015 has mortgaged by handing over the copies of documents of title and undertook to execute a mortgage deed. Therefore, there was factually no mortgage at all in respect of the schedule 'A' property. As stated above, the other properties prescribed in Schedule 'B', 'C' & 'D' are all admittedly situated outside the jurisdiction of this Court. In a suit for mortgage relating to the immovable property, this Court cannot have any jurisdiction if the landed property lying outside the jurisdiction of this Court. The learned counsel appearing for the applicants also referred to the prayer in this regard as contained in the plaint for revocation of the leave granted by this Court.

7. Per contra, the learned counsel appearing for the respondent/plaintiff would submit that the main prayer in the suit is only for a direction to the defendants 1 to 4 to jointly and severally pay a sum of Rs.3,19,00,000/- with interest. Only in default, the prayer has been included for foreclosure of mortgage of Schedule 'A', 'B' & 'C' properties under Order 34 of CPC. It is not the case relating to immovable properties and recovery of land and the principal prayer is only for a direction towards recovery of money. Therefore, the suit prayer is very much maintainable before this Court.

8. This Court has considered the rival submission made by Mr. P.C.Harikumar, learned counsel appearing for the applicants and Mr. B.S.Jothiraman, learned counsel appearing for the respondents.

9. As rightly pointed out by the learned counsel appearing for the respondent/plaintiff, the principal prayer in the suit is for a direction to the defendants to pay jointly and severally a sum of Rs.3,19,00,000/- with interest and only, in default, there is a prayer for foreclosure of mortgage. This Court while considering the objections raised on behalf of the applicant herein is constrained to refer the decision of this Court reported in CDJ 2003 MHC 807 in the case of A.S.Baskaran Vs. Indian Finance & Factors Limited. The learned Judge as he then was has held that when the preliminary decree will be one for recovery of money and only when there is default, a final decree may ensue permitting recourse to the land. There is no adjudication of title to the land or immovable property. The learned Judge as he then was has held that the suit is not for want of land and refused to revoke the leave on the basis of identical objections raised by the learned counsel.

10. It is useful to refer to the various observations and also the Apex Court decision being adverted to by the learned Judge from paragraphs 5 to 10 of the judgment, which read as under;

5. The learned counsel for the applicant relies on the decision of Federal Court in Moolji Jaitha and Co. v. K.S. and W. Mills Co. AIR 1950 (37) F C 83 and contends that the expression 'suit for land' covers three clauses, of suit, namely, suit for determination of title to the land, suit for possession of land and other suits in which the reliefs claimed if granted would directly affect title to or possession of land and in the present case, the relief claimed by the plaintiff would directly affect the title to the land and hence it is a suit for land.

6. The attention of this Court is drawn in this regard to the latest decision of the Apex Court in Adcon Electronics Pvt. Ltd. v. Daulate and Anr. 2001 (4) CTC 39, in which the question as to what is meant by 'suit for land' within Clause 12 of Letters Patent of the High Court of Judicature at Bombay was considered and their Lordships referred to and extracted in the judgment, the divergence of opinion among the learned Judges of Five-Judge Bench of Federal Court in Moolji Jaitha and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd. AIR (37) 1950 F.C. 83, with regard to the import of expression 'suit for land' and held that they are in respectful agreement with the view expressed by Mahajan, J. in that case and that view is as follows:

"Justice Mahajan observed, "If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. I therefore content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression." He added, "In my opinion, if the suit is for specific performance and a decree for possession of the land sold is claimed, such a suit would certainly be a "suit for land"; but if the suit is simpliciter for specific performance, i.e., for the enforcement of the contract of sale and for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for determination of title to land or that the decree in it would operate on the land."

By agreeing with the above view, their Lordships of the Apex Court laid down that where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a suit for land and the suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract and the title to the land as such is not the subject matter of the suit and hence it is not a suit for land.

7. In fact, the above referred Five-Judge Bench decision of the Federal Court was earlier considered by a Division Bench of this Court, while considering the expression of "suits for land or other immovable property" occurring in Clause 12 of the Letters Patent of this Court with regard to the suits for recovery of money by enforcement of equitable mortgages, in the decision in Southern Petrochemical Industries Corporation Ltd. v. Durga Iron Works and three Ors., 1995(2)CTC602 and the Division Bench held as follows:

"6. As we could see from the views of the learned Judges of the Federal Court, the relevant tests to be remembered and applied to find out as to whether the suit is one for land are: (1) Whether the suit involves determination of right, title or interest in land; or (2) whether the suit involves recovery of possession or, control of land. In a suit to recover money due under a mortgage, when we apply the above tests, it is not possible to say that the suit will come within the mischief of any of the above tests. There may not be a determination of title to the land as such. Equally so, there may not be straightway a decree for recovery of possession of land. Primarily the decree will be one for recovery of money. Only when there is a default, a final decree may ensue permitting recourse to the land in satisfaction of the money claim. Even then, there is no determination of title to the land and there is no decree for recovery of possession."

8. In the present suit, the relief sought for is a money decree for a sum of Rs. 14,54,443 with interest against the defendants and in default, the properties in the schedule be sold. The maintainability of the suit on the Original Side of this Court is being challenged by the applicant/defendant on the ground that it is a suit for land within the meaning of Clause 12 of the Letters Patent. This is resisted by the respondent/plaintiff on the ground that the suit is only for recovery of money and only when in default, recourse to the land in satisfaction of claim would be made and hence it is not a suit for land. The import of expression 'suit for land' is now well settled by the Apex Court in the decision referred to supra.

9. In the present case, primarily the decree will be one for recovery of money and only when there is default, a final decree may ensue permitting recourse to the land in satisfaction of the money claim. There is no adjudication of title to the land or immovable property and there is no delivery of possession of the land or immovable property. The title to the land is not the subject matter of the suit. Hence, the present suit is not one for land. The contention of the applicant is devoid of

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merit and liable to be rejected. There is no need to revoke the leave granted to the respondent/plaintiff and the applicant is not entitled to the reliefs sought for in both the applications. 10. The applications are dismissed. No costs.” 11. From the above, it could be seen that the present prayer and the objections are almost identical and in which case this Court has to necessarily follow the principles laid down by the learned judge as he then was in the above decision of this Court. Even otherwise this Court is of the view that the case on hand principally laid for the recovery of money from the defendants and only as alternate relief, foreclosure of mortgage is prayed. Therefore the suit cannot strictly attract the provisions as cited by the learned counsel appearing for the applicant/defendants in terms of the Original Side Rules and provisions of CPC. On the other hand, the decision referred to above would be squarely applicable. 12. This Court in the facts and circumstances of the case has to come to an inexorable conclusion that the prayer primarily one for recovery of money, the suit, therefore cannot be construed as being one of mortgage suit. In the said circumstances this Court does not find any infirmity in the leave granted earlier and the same is not liable to be revoked. 13. Accordingly, this Court finds no merit and substance in the application filed by the applicants/defendants and therefore the same stands dismissed.
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