DECCAN PAPER MILLS CO. LTD v. REGENCY MAHAVIR PROPERTIES & Ors.

personam when an unregistered instrument is cancelled and in rem when a registered instrument is cancelled. The suit that is filed for cancellation cannot be in personam only for unregistered instruments by virtue of the fact that the decree for cancellation does not involve its being sent to the registration office – a ministerial action which is subsequent to the decree being passed. In fact, in Gopal Das v. Sri Thakurji, AIR 1943 PC 83, a certified copy of a registered instrument, being a receipt dated 29.03.1881 signed by the owner, was held not to be a public record of a private document under section 74(2) of the Indian Evidence Act, 1872 for the reason that the original has to be returned to the party under section 61(2) of the Registration Act, 1908 (see p. 87). Thus, the factum of registration of what is otherwise a private document inter parties does not clothe the document with any higher legal status by virtue of its registration. Also, it must be remembered that the Delhi High Court’s reasoning in Sulochana Uppal that it is the Court alone that can, under the Specific Relief Act, enforce specific performance of an agreement, is contra to the reasoning in Olympus which overruled it, stating that “the dispute or difference which parties to an arbitration agreement agree to refer must consist of justiciable issues triable civilly”. Since specific performance is a justiciable issue triable civilly, obviously, the expression “court” occurring throughout the Specific Relief Act will have to be substituted by “arbitrator” or “arbitral tribunal”. This part of the reasoning in Aliens Developers, in following the same reasoning as an overruled Delhi High Court judgment, would fly in the face of Olympus and would, therefore, not be good law. therefore, the same is overruled. [Paras 17, 18][456- E-H; 457-A; 458-E-G] Aliens Developers Pvt. Ltd. v. M. Janardhan Reddy (2016) 1 ALT 194 (DB) - overruled. Olympus Superstructures v. Meena Vijay Khetan (1999) 5 SCC 651: [1999] 3 SCR 490 – relied on.

1.5 The proceeding under section 31 is with reference to specific persons and not with reference to all who may be A B C D E F G H 432 SUPREME COURT REPORTS [2020] 13 S.C.R. concerned with the property underlying the instrument, or “all the world”. Clearly, the cancellation of the instrument under section 31 is as between the parties to the action and their privies and not against all persons generally, as the instrument that is cancelled is to be delivered to the plaintiff in the cancellation suit. A judgment delivered under section 31 does not bind all persons claiming an interest in the property inconsistent with the judgment, even though pronounced in their absence. A reading of sections 32 and 33 of the Specific Relief Act, 1963 would also show that the reasoning of the High Court in Aliens Developers is flawed. Where, for example, under section 32, an instrument is cancelled in part, the instrument which is otherwise only an instrument inter parties, cannot be said to be an instrument which remains inter parties, the cancelled portion being a cancellation to the world at large, i.e., in rem. Equally, under section 33, when compensation is required to be paid or restoration of benefit which has been received from the other party is required to be made, it is exactly the same as that which is required to be done under a contract which is rescinded and cancelled (see section 30): and it is clear that both sections 30 and 33 would apply only to contracts or instruments which are rescinded/cancelled in personam. When sections 34 and 35 are seen, the position becomes even clearer. Unlike section 31, under section 34, any person entitled to any legal character may institute a suit for a declaration that he is so entitled. Considering that it is possible to argue on a reading of this provision that the legal character so declared may be against the entire world, section 35 follows, making it clear that such declaration is binding only on the parties to the suit and persons claiming through them, respectively. This is for the reason that under section 4 of the Specific Relief Act, specific relief is granted only for the purpose of enforcing individual civil rights. The principle contained in section 4 permeates the entire Act, and it would be most incongruous to say that every other provision of the Specific Relief Act refers to in personam actions, section 31 alone being out of step, i.e., referring to in rem actions. [Paras 20-22][461-G-H; 462-A-G] A B C D E F G H DECCAN PAPER MILLS CO. LTD. v. REGENCY MAHAVIR PROPERTIES & ORS. 433

1.6 The reasoning in in an instructive judgment of this Court in Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112, in the context of the Court Fees Act, 1870 would again expose the incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non- executant would be an action in personam since a suit has to be filed undersection 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem. 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. [Paras 25, 26][464-B-E] Ameet Lalchand Shah v. Rishabh Enterprises (2018) 15 SCC 678 : [2018] 6 SCR 1001; Mayavati Trading Pvt. Ltd. v. Pradyut Deb Burman (2019) 8 SCC 714; Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751 : [2018] 14 SCR 791; Mohd. Noorul Hoda v. Bibi Raifunnisa (1996) 7 SCC 767 : [1995] 6 Suppl. SCR 110; R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid (1963) 3 SCR 22; Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju (2006) 1 SCC 212 : [2005] 4 Suppl. SCR 82; Razia Begum v. Sahebzadi Anwar Begum 1959 SCR 1111; Suhrid Singh v. Randhir Singh (2010) 12 SCC 112 : [2010] 3 SCR 1121 – relied on. Avitel Post Studioz Limited & Ors. v. HSBC PI Holding (Mauritius) Ltd., Civil Appeal No. 5158 of 2016; Swiss Timing Ltd. v. Commonwealth Games 2010 Organising Committee (2014) 6 SCC 677:[2014] 6 SCR 514; N. Radhakrishnan v. Maestro Engineers (2010) 1 SCC 72:[2009] 15 SCR 371; S.B.P. & Co. v. Patel Engg. Ltd. (2005) 8 SCC 618 : [2005] 4 Suppl. SCR 688; A B C D E F G H 434 SUPREME COURT REPORTS [2020] 13 S.C.R.