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REPORTABLE
VERSUS
JUDGMENT
R.F. Nariman, J.
Civil Appeal Nos. 5145 of 2016, 5158 of 2016, and 9820 of 2016.
Digitally signed by
INDU MARWAH
Nos. 96B, 96C, and 96D at village Mundhwa, District Pune,
Date: 2020.08.19
16:25:07 IST
Reason:
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ii. This agreement did not contain any arbitration clause. Pursuant to
out as follows:
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It is important to note that Defendant No. 3 did not file any written
out and the Civil Judge (Senior Division), Pune was asked to refer
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vi. A writ petition filed by Deccan in the Bombay High Court was then
under appeal in Civil Appeal Nos. 5145 and 5158 of 2016) and
Sood”]. The Court felt that it would not be possible to follow the
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so, the writ petition was then dismissed, with the result that the
Appellant, has taken us through the record and argued on the basis
Judge as well as the High Court did not look into the requirements
infirm on this count alone. She also argued, basing herself on the
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arbitration clause, and since the suit was to set aside that
Relief Act, 1963 and stated that a reading of the plaint and the
prayers in the suit would show that the suit is one for cancellation
the exceptions made out in Booz Allen & Hamilton Inc. v. SBI
“Booz Allen”]. For this purpose, she relied heavily upon a judgment
judgment of the Bombay High Court ought to be set aside and the
timeframe.
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Sadaf Akhtar, (2019) 8 SCC 710 (see paragraph 4), this exception
would only apply if it can be stated that the agreement itself was
fall, but not otherwise. Also, since there are no public ramifications
clear that the judgments of the Courts below were correct in law.
stated that a correct reading of the section would show that the
not lay down the law correctly and should be overruled by us. In
cancelled in the suit, he argued that this was inserted only in the
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the case, it is clear that the dispute is arbitrable. Further, all that is
between the parties did exist, but was vitiated on account of fraud,
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overtones as well, does not mean that its subject matter becomes
this exception would clearly not apply to the facts of this case.
This case arose out of an order of the Land Reforms Tribunal which
taken advantage of the ceiling limit under the Andhra Pradesh Land
when it found that the land which was surrendered had already
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modifying the earlier order and leaving out such land. It was held,
SCC 714 at pp. 724-725, and Emaar MGF Land Ltd. v. Aftab
that there is a sea change between section 8 of the 1996 Act and
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entered into.
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carved out based upon Booz Allen (supra) on the footing of the
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necessary to set out certain sections of the Specific Relief Act. The
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The very sheet anchor of Smt. Doshi’s case, namely, the judgment
Court was faced with differing views taken by the High Courts as to
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The learned Single Judge thus disagreed with the contrary view of
10. It is important to note that this Court referred to all the aforesaid
High Courts’ view is the correct one and that the Delhi High Court’s
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11. A perusal of section 26(1) of the Specific Relief Act, 1963 would
if the Court thinks fit, may after rectifying the contract, grant
12. Under section 27(1) of the Specific Relief Act, 1963, “any party
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the contract, but persons who may be heirs of one of the parties to
the contract. A reading of this section would also show that all such
rights in good faith, without notice and for value, during the
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suit for specific performance may pray in the alternative that if the
rescission of the contract, the Court may require the party to whom
which he may have received from the other party and to make any
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33(1) of the 1963 Act is the pari materia provision). This judgment,
section 31 of the 1963 Act). The Court then went on to notice the
15. In an extremely important paragraph, the Full Bench then set out
the principle behind section 39(1) of the Specific Relief Act, 1877
as follows:
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16. A reading of the aforesaid judgment of the Full Bench would make
the position in law crystal clear. The expression “any person” does
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title. The expression “any person” in this section has been held by
this Court to include a person seeking derivative title from his seller
far, it is clear that the action under section 31(1) is strictly an action
17. Let us see whether section 31(2) makes any difference to this
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fact that the decree for cancellation does not involve its being sent
Indian Evidence Act, 1872 for the reason that the original has to be
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document inter parties does not clothe the document with any
18. Also, it must be remembered that the Delhi High Court’s reasoning
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SCR 22, this Court set out the Roman law concept of jus in rem as
follows:
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parties to the action and their privies and not against all persons
in their absence.
would also show that the reasoning of the High Court in Aliens
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restoration of benefit which has been received from the other party
cancelled (see section 30): and it is clear that both sections 30 and
rescinded/cancelled in personam.
22. When sections 34 and 35 are seen, the position becomes even
clearer. Unlike section 31, under section 34, any person entitled to
only for the purpose of enforcing individual civil rights. The principle
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follows:
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25. The reasoning in the aforesaid judgment would again expose the
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convert the suit into a suit being in rem. All these anomalies only
26. Given this finding of law, it is clear that the judgments of the District
Court and the High Court in this case need no interference. This
……………..………………J.
(R. F. Nariman)
………..……………………J.
(Navin Sinha)
………..……………………J.
(Indira Banerjee)
New Delhi
August 19, 2020.
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