- (1.) The Court:-This is an application of the defendants seeking dismissal of the suit on the ground that the suit is a suit for land situated outside the jurisdiction of this court and thus, depriving this court of its authority to entertain or try the suit; alternatively the issue as to the maintainability of the suit in this court or lack of territorial jurisdiction of this court to entertain or try the suit be heard and determined as a preliminary issue before the hearing of any other issues.
(2.) In the plaint, the plaintiff has prayed for the following reliefs:-- "(a) Specific performance of the agreement as mentioned in paragraph 9 hereof by directing the defendants to execute and register the conveyance in respect of the said three flats, of the total carpet area of not less than 3,000 sq. ft. (each having a carpet area of 1000 sq. ft.) with four covered garages or car parking spaces in a covered area together with all rights, benefits and advantages of the common facilities and conveniences reserved for common use of the occupants of the proposed new building at the premises being No. 62/7, Ballygunge circular Road. Calcutta-700019, in favour of the plaintiff or its nominee or nominees. (b) In the event the defendants fail to execute such conveyances, the Registrar, Original Side, of this Hon'ble Court, be directed to execute and register the conveyances to respect of the said three flats as fully described in prayer (a), in favour of the plaintiff or its nominee or nominees. (c) Mandatory injunction directing the defendants to renew the Bank Guarantee as mentioned in paragraph 13 of the plaint or issue new Bank Guarantee as per the terms of the agreement dated December, 8, 1984 in favour of the plaintiff, for the rent payable by the defendants to the Landlord of the temporary accommodation provided to the plaintiff, for the period commencing from the date of the decree till execution of the conveyances with regard to the three flats and four covered car parking spaces as fully described in prayer (a). (d) Administration. (e) Receiver. (f) Injunction. (g) Costs. (h) Further or other reliefs."
(3.) In support of the aforementioned reliefs, the plaintiff has alleged in the plaint, inter alia, that the plaintiff was inducted in premises No. 62/7, Ballygunge Circular Road, Calcutta, under a registered indenture of lease. While the plaintiff was enjoying the lease right in the said premises, the defendants No. 1, 2, 3 and 4 approached the plaintiff with the proposal that if the plaintiff temporarily shifted from the said premises, the said defendants would construct a building there at and make over to the plaintiff on ownership basis three flats of 1000 sq. ft. each with four garages free of costs and also arrange for temporary accommodation for the plaintiff during the period of construction. The plaintiff agreed to the said proposal for exchange of tenancy right in respect of the said premises for right of ownership of three flats or the total carpet area of 3000 sq. ft. and four covered garages or car parking space in the new building to be constructed at the said premises. Accordingly on 8th December, 1984 an agreement was entered by and between the plaintiff and the defendants No. 1, 2, 3, & 4, which agreement was subsequently modified by an agreement dated 10th February, 1987. As it appears, the agreement dated 8th December, 1984 was subject to the defendants purchasing the ownership right in the said premises from the then owners thereof, and on 28th August, 1985 the defendants by obtaining nine conveyances in their favour acquired the ownership right in the said premises, which was recorded in the agreement for modification dated 10th February, 1987. The plaintiff has contended that it has performed its part of the obligation under the agreement by vacating the said premises and shifting to the temporary accommodation provided by the defendants at premises No. 59/2A, Pratapaditya Road, Calcutta 26 and similarly the defendants furnished a bank guarantee for Rs. 3,26,000/- in terms of the said contract, but the defendants failed and neglected to deliver vacant possession of the three flats in the newly constructed building at the said premises to the plaintiff in terms of the said agreement despite such construction was apparently completed by the defendants and also failed and neglected to renew the bank guarantee despite requests and despite the plaintiff applying for specific performance of the said agreement.;