Amit S. Jamsandekar, J.

1. By the present First Appeals, the parties have challenged the judgment and decree dated 30.4.2016 (the impugned Judgment) passed by the Civil Judge, Senior Division “A” Court, Panaji (the Learned Judge) in Special Civil Suit No. 14/2010/A.

2. By the impugned judgment, the learned Judge has partly decreed the suit in favour of the Plaintiff (the Appellant in First Appeal No.51 of 2016). The Defendant (Appellant in First Appeal No. 110 of 2016) has challenged the impugned Judgment on the grounds more particularly mentioned in paragraphs 12(a) to 12(dd) of the Memo of Appeal.

3. Both the Appeals are finally heard together by consent of the parties because the impugned Judgment is common to both Appeals.

4. Mr. De Sa, the learned Counsel on behalf of the Appellant (original Defendant) in First Appeal No. 110 of 2016, elaborated the grounds mentioned in paragraphs 12(a) to 12(dd) of the Memo of Appeal. He submitted that all the grounds of appeal are broadly woven together into three main grounds i) the impugned judgment is passed by the learned judge without jurisdiction, and therefore the decree passed by the learned judge is a nullity ii) the Appellant was not liable to pay a sum of Rs. 5 Crores to the 1st Respondent in view of the provision of the Agreement of Cancellation dated 21.07.2007 iii) the Agreement of Cancellation dated 21.07.2007 proceeds on the footing that the 1st Respondent is required to prove actual loss, damages and cost incurred etc., which in this case has not been proved and therefore, the learned Judge has misdirected himself on facts and in law. It is submitted that the learned Judge has failed to consider the Clauses of the Agreements executed between the parties in proper perspective.

5. We heard Mr. De Sa for the Appellant (original Defendant) and Mr. Desai on behalf of the 1st Respondent (the original Plaintiff) at length and perused the record.

6. It is an admitted position that on 28.09.2006 the parties executed an Agreement to Sale in respect of a piece of land situated in Taluka Sawantadi, District Sindhudurg, the State of Maharashtra. Thereafter, on 21.07.2007, the parties executed the Agreement of Cancellation as more particularly mentioned in the Agreement of Cancellation. The execution and existence of both the Agreements are not in dispute.

7. In this background, the first submission of Mr. De Sa is that the impugned Judgment is without jurisdiction. It is the case of the Appellant that the 1st Respondent, by filing a suit before the learned Judge, has effectively sought a specific performance of the Agreement to Sale 28.09.2006. He submitted that the property which is the subject matter of the Agreement to Sale is admittedly not within the jurisdiction of the learned Judge. He further submitted that the suit is not for the recovery of money, as portrayed by the 1st Respondent. The suit is for specific performance of the Agreement to Sale dated 28.09.2006. Therefore, by virtue of the provisions of Section 16 of the Code of Civil Procedure, 1908 (the Code), the learned Judge ought not to have entertained the suit filed by the 1st Respondent.

8. To deal with this submission, we have read the plaint in its entirety. On the basis of statements made in the plaint, the 1st Respondent sought a prayer that:

                    “a. That this Hon’ble Court be pleased to issue a Decree directing the Defendants to pay to the plaintiff a sum of Rs.7,80,00,000/-(Rupees seven crores eighty lakhs) and interest thereon at the rate of 18% per annum from 15.11.2007 till the date of effective payment.”

9. The plaint narrates the background and the facts leading to the execution of the Agreement to Sale dated 28.09.2006 and the facts leading to the execution of the Cancellation Agreement dated 21.07.2007. Thereafter, the facts are stated about the issuance of cheques of Rs. 10 crores in favour of the 1st Respondent and thereafter the facts that the cheques, except of Rs. 2.2 crores, are dishonoured. We have also gone through the depositions of all the witnesses to analyse the substance of the Appellant’s submission. A plain reading of the statements made in the plaint, the prayer sought and the evidence on record clearly establishes that the suit filed by the 1st Respondent is not for specific performance. Therefore, we reject the submission of Mr. De Sa that the 1st Respondent has prayed that the suit is for recovery of money and confirm the findings and reasoning of the learned Judge on this aspect.

10. If the suit is not for specific performance, then consequently, we also reject the submissions of Mr. De Sa that the provisions of Section 16 of the Code will govern the territorial jurisdiction of the learned Judge. The reason being, the provisions of Section 16 of the Code shall only apply to the suits i) for the recovery of immovable property with or without rent or profits ii) the suit for partition of immovable property iii) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property iv) for the determination of any other right to or interest in immovable property v) for compensation to wrong to immovable property and vi) for the recovery of movable property actually under distraint or attachment. If the cause of action in the suit is in respect of the aforesaid six categories, then the suit is required to be instituted in the Court within the local limits of whose jurisdiction the property is situate. The proviso to Section 16 provides that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the Defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the Defendant actually and voluntarily resides, or carries on business, or personally works for gain.

11. In the present case, the 1st Respondent has filed the present suit before the learned Judge seeking relief in terms of prayer (a) of the plaint and invoked the territorial jurisdiction of the learned Judge on the basis of statements made in paragraph 21 of the plaint, which reads as follows:

                    21) The Plaintiff states that the Defendants have their office /or resides in Panaji, Goa, besides the Defendants voluntarily carry on the business and work for gain at Panaji, Goa. The relief claimed in the plaint can be entirely obtained through his personal obedience of the Defendants. The amount claimed in the plaint is required to be paid to the Plaintiff at Panaji, Goa. The Cheques which were dishonored were also presented for clearance at Panaji, Goa. In the circumstances, this Hon'ble Court has territorial jurisdiction to try the suit.

12. The relief sought in the plaint is not in respect of the property. Therefore, the provisions of Section 16 of the Code will not be applicable in the present case, particularly in view of the statement made in paragraph 21 of the plaint and the relief sought by prayer (a) of the plaint.

13. Our view is supported by the judgment of the Hon’ble Supreme Court in Harshad Chiman Lal Modi Vs DLF Universal Ltd, (2005) 7 SCC 791. The Hon’ble Supreme Court has held in paragraphs 15 and 16 that:-

                    “15. Now, Sections 15 to 20 of the Code contain detailed provisions relating to jurisdiction of courts. They regulate forum for institution of suits. They deal with the matters of domestic concern and provide for the multitude of suits which can be brought in different courts. Section 15 requires the suitor to institute a suit in the court of the lowest grade competent to try it. Section 16 enacts that the suits for recovery of immovable property, or for partition of immovable property, or for foreclosure, sale or redemption of mortgage property, or for determination of any other right or interest in immovable property, or for compensation for wrong to immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate. The proviso to Section 16 declares that where the relief sought can be obtained through the personal obedience of the defendant, the suit can be instituted either in the court within whose jurisdiction the property is situate or in the court where the defendant actually or voluntarily resides, or carries on business, or personally works for gain. Section 17 supplements Section 16 and is virtually another proviso to that section. It deals with those cases where immovable property is situate within the jurisdiction of different courts. Section 18 applies where local limits of jurisdiction of different courts are uncertain. Section 19 is a special provision and applies to suits for compensation for wrongs to a person or to movable property. Section 20 is a residuary section and covers all those cases not dealt with or covered by Sections 15 to 19.

                    16. Section 16 thus recognises a well-established principle that actions against res or property should be brought in the forum where such res is situate. A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment. The proviso to Section 16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on a well-known maxim “equity acts in personam”, recognised by the Chancery Courts in England. The Equity Courts had jurisdiction to entertain certain suits respecting immovable properties situated abroad through personal obedience of the defendant. The principle on which the maxim was based was that the courts could grant relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam i.e. by arrest of the defendant or by attachment of his property.”

                    (emphasis supplied)

14. In view thereof, the arguments advanced by Mr. De Sa on jurisdiction are without any substance. We agree that the findings and the reasons given by the learned Judge that the provisions of Section 20 of the Code shall apply in view of the fact that the suit filed by the 1st Respondent was not in respect of specific performance or did not fall within the provisions of Section 16 (a) to (f) or proviso thereof. In view thereof, we agree with the findings of the learned Judge that the trial Court had jurisdiction to try, entertain and dispose of the suit filed by the 1st Respondent. Therefore, we reject the submission made by Mr. De Sa that the learned Judge had no jurisdiction to try, entertain and dispose of the suit.

15. The second submission of Mr. De Sa on behalf of the Appellant is that the 1st Respondent was entitled to Rs.5 crores under the Cancellation Agreement dated 21.07.2007 only upon establishing that, in fact, such costs, damages, etc. was incurred/ suffered by the 1st Respondent. It is submitted that the 1st Respondent has miserably failed to establish that fact and therefore, the learned Judge has erred in granting a decree to the 1st Respondent in respect of Rs.5 crores. However, Mr. De Sa submitted that, admittedly, by virtue of the Cancellation Agreement dated 21.072007, the Appellant has already paid Rs.5 crores. Rs.5 crores was in respect of the refund of consideration paid by the 1st Respondent to the Appellant under the Agreement to Sale dated 28.09.2006. Therefore, it is submitted on behalf of the Appellant by Mr. De Sa that as far as Rs.5 crores refund as contemplated under the agreement dated 21.07.2007 is concerned, the Appellant has no grievance.

16. According to Mr. De Sa, by virtue of Clauses 3 and 4, read together, of the Agreement for Cancellation dated 21.072007, the Appellant are not liable to pay Rs.5 crores to the 1st Respondent. He further submitted that by virtue of these Clauses, the Agreement to Sale dated 28.09.2006 has remained in full force and therefore, for the purpose of recovery of Rs.5 crores, Clause 13 of the Agreement to Sale dated 28.09.2006 shall apply. Therefore, it is submitted by Mr. De Sa that the 1st Respondent ought to have filed a suit invoking Clause 13 of the Agreement to Sale dated 28.09.2006 and could not have maintained the suit under the Cancellation Agreement dated 21.07.2007. To support this Mr. De Sa submitted that the learned Judge has placed reliance on inadmissible evidence and overlooked vital evidence on record whilst making findings and decreeing the suit. It is his submission that there are material contradictions in the impugned judgment. Mr. De Sa further submitted that PW1 has clearly admitted in cross examination that there is nothing on record to actually prove the expenses, damages and costs etc. It is further submitted that PW1 admitted that the plaintiff has not filed any accounts to establish the cost of Rs.5 crores, and he was unable to provide a reconciliation statement.

17. We reject all the submissions made by Mr. De Sa for the following reasons:-

                    i. Agreement for cancellation dated 21.07.2007 clearly records the execution of the Agreement to Sale dated 28.09.2006. It also records that the 1st Respondent made a part payment of Rs.5 crores to the Appellant. Importantly, reasons for execution of the Cancellation Agreement dated 21.7.2007 are recorded in the recitals of the agreement which reads as follows:

                    “AND WHEREAS, consistent with the provisions of the Agreement to Sell dated 28/9/2006 the Parties held negotiations in the matter as the Purchaser did not desire to purchase the said property and have arrived at an agreement to cancel the Agreement to Sell dated 28-09-2006, the terms whereof are set out herein.”

                    ii. In this background, by virtue of clause (1), the parties agreed for a figure of 10 crores to be paid to the 1st respondent by the Appellant. Clause (1) of the Cancellation Agreement reads as follows:-

                    “(1) The Vendor agrees and undertakes to repay to the Purchaser the sum of Rs. 10.00 crores (Rupees ten crores) being Rs. 5.00 crores (Rupees five crores only) paid as aforesaid and an additional sum of Rs. 5.00 (Rupees five crores only) in consideration of agreeing to rescind the Agreement to crores Sell dated 28-09-2006, which sum is inclusive of interest payable on the said part consideration of Rs. 5.00 (Rupees five crores only) paid by the Purchaser to the Vendor under the said Agreement dated 28-09-2006 and costs, charges and expenses, if any, incurred by the Purchaser under the said Agreement dated 28-09-2006 and damages if any suffered thereunder, which sum shall be payable in the following manner:-“

                    Therefore, plain reading of clause (1) of the Cancellation Agreement clearly reflects the intention of the parties to pay Rs.10 crores to the 1st Respondent, which is inclusive of interest, costs, charges, expenses and damages. Thus, the submission of Mr. De Sa that the costs, charges, expenses and damages etc. ought to have been proved by the 1st Respondent is frivolous.

                    iii. Mr. De Sa relied on Clauses (3) and 4) of the Cancellation Agreement dated 21.07.2007 which are reproduced herein below:-

                    “(3) Upon the payment of the total sum of Rs.10.00 crores as aforesaid the Agreement to sell dated 28/9/2006 shall be deemed to have been terminated and rescinded with no effect in law.

                    (4) Until payment of the sums under clause 1(ii) and 1(iii) hereinabove, the Agreement to Sell dated 28/9/2006 shall remain in full force and on realization of the payment under clause 1(ii) & 1(iii) the Agreement to Sell dated 28/9/2006 shall automatically be cancelled and become null and void.”

                    The reliance of Mr. De Sa on clauses (3) and (4) of the Cancellation Agreement is also frivolous because the Agreement to Sale dated 28.9.2006 was agreed to be terminated and rescinded with no effect in law after payment of the total sum of Rs.10 crores, which was the natural consequence of the Cancellation Agreement. By virtue of Clause (3) and (4) of the Agreement, the parties never intended to go back to Clause 13 of the Agreement to Sale dated 28.9.2006 for the purpose of the payment of the agreed Rs. 10 crores or part thereof under the Cancellation Agreement.

                    iv. Further, a plain reading of the entire Cancellation Agreement clearly reflects that it was not the intention of the parties that the 1st Respondent was under an obligation to prove the actual costs, charges, expenses and damages before making a claim under the Cancellation Agreement. Therefore, by no stretch of imagination Clauses (3) and (4) of the Cancellation Agreement can be read to mean that in case of failure on the part of the Appellant to pay Rs.5 crores to the 1st Respondent, the clauses of the Agreement to Sale dated 28.9.2006 shall become operative for the purpose of the claim of Rs.5 crores.

                    v. The commercial agreement will have to be read to make commercial sense. The submissions made by Mr. De Sa are contrary to the law laid down by the Hon’ble Supreme Court in the case of Transmission Corporation of Andhra Pradesh Limited and others Vs GMR Vemagiri Power Generation Limited and another, (2018) 3 SCC 716 in paragraph 26 which reads thus:-

                    “26. A commercial document cannot be interpreted in a manner to arrive at a complete variance with what may originally have been the intendment of the parties. Such a situation can only be contemplated when the implied term can be considered necessary to lend efficacy to the terms of the contract. If the contract is capable of interpretation on its plain meaning with regard to the true intention of the parties it will not be prudent to read implied terms on the understanding of a party, or by the court, with regard to business efficacy as observed in Satya Jain v. Anis Ahmed Rushdie [Satya Jain v. Anis Ahmed Rushdie, (2013) 8 SCC 131 : (2013) 3 SCC (Civ) 738] , as follows : (SCC pp. 143-44, paras 33-35)

                    “33. The principle of business efficacy is normally invoked to read a term in an agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results. The classic test of business efficacy was proposed by Bowen, L.J. in Moorcock [Moorcock, (1889) LR 14 PD 64 (CA)] . This test requires that a term can only be implied if it is necessary to give business efficacy to the contract to avoid such a failure of consideration that the parties cannot as reasonable businessmen have intended. But only the most limited term should then be implied—the bare minimum to achieve this goal. If the contract makes business sense without the term, the courts will not imply the same. The following passage from the opinion of Bowen, L.J. in the Moorcock [Moorcock, (1889) LR 14 PD 64 (CA)] sums up the position : (PD p. 68)

                    ‘… In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are businessmen; not to impose on one side all the perils of the transaction, or to emancipate one side from all the chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils or chances.’

                    34. Though in an entirely different context, this Court in United India Insurance Co. Ltd. v. Manubhai Dharmasinhbhai Gajera [United India Insurance Co. Ltd. v. Manubhai Dharmasinhbhai Gajera, (2008) 10 SCC 404] had considered the circumstances when reading an unexpressed term in an agreement would be justified on the basis that such a term was always and obviously intended by and between the parties thereto. Certain observations in this regard expressed by courts in some foreign jurisdictions were noticed by this Court in para 51 of the Report. As the same may have application to the present case it would be useful to notice the said observations : (SCC p. 434)

                    ‘51. …“… ‘Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander, were to suggest some express provision for it in their agreement, they would testily suppress him with a common “Oh, of course!”’ (Shirlaw v. Southern Foundries (1926) Ltd. [Shirlaw v. Southern Foundries (1926) Ltd., (1939) 2 KB 206 (CA)] , KB p. 227.)

                    ***

                    ‘… An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract : it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them : it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, although tacit, formed part of the contract which the parties made for themselves.’ (Trollope and Colls Ltd. v. North West Metropolitan Regional Hospital Board [Trollope and Colls Ltd. v. North West Metropolitan Regional Hospital Board, (1973) 1 WLR 601 : (1973) 2 All ER 260 (HL)] , All ER p. 268a-b.)” [Ed. : As observed in Carna Foods Ltd. v. Eagle Star Insurance Co. (Ireland) Ltd., (1997) 2 IR 193.] ’

                    (emphasis in original)

                    35. The business efficacy test, therefore, should be applied only in cases where the term that is sought to be read as implied is such which could have been clearly intended by the parties at the time of making of the agreement. …”

                    vi. Therefore, we reject all the submissions made by Mr. De Sa and completely agree with the findings of the learned Judge. The learned Judge has appreciated the evidence on record. There is no evidence on record which supports any of the submissions made by Mr. De Sa or any of the plea taken by the Appellant in the written statement. We reject the submissions of Mr. De Sa that the 1st Respondent was required to prove the actual costs, charges, expenses and damages in view of the expressed terms of the Cancellation Agreement. The whole purpose of the Cancellation Agreement was that the 1st Respondent was not required to establish any actual costs, charges, expenses and damages etc. and therefore, a lump sum figure of Rs.10 crores was arrived at between the parties, which included part consideration paid by the 1st Respondent to the Appellant under the Agreement to Sale dated 28.9.2006. In view thereof, there is no substance in any of the submissions made on behalf of the Appellant.

18. We do not find any perversity or arbitrariness in any of the findings of the learned Judge in the impugned judgment. The learned Judge has judiciously arrived at findings in consonance with the well established principles of law and after appreciating the evidence on record.

19. We find that the Appellant has not honoured its contractual obligations, resulting in a multiplicity of litigation. The Appellant has taken commercial benefit by not paying Rs. 7.8 crores as agreed in the Cancellation Agreement. Admittedly, cheques for Rs. 10 crores were issued, but only cheques for Rs. 2.20 crores were honoured. The Appellant has dragged the litigation for years and has abused the process of law. Therefore, the Appellant is liable to pay costs to the 1st Respondent.

20. Consequently, the First Appeal No.110 of 2016 filed by the original Defendant stands dismissed with costs of Rs.1 lakh, which shall be paid by the Appellant to the 1st Respondent within a period of one week from today.

21. As far as First Appeal No. 51 of 2016, filed by the original Plaintiff, is concerned, we heard Mr. Desai, the learned Counsel appearing for the Appellant.

22. The Appellant (Original Plaintiff) has challenged the impugned judgment for limited relief that the learned Judge has not awarded interest on the amount of Rs.2.8 crores. This amount was deposited by the 1st Respondent (Original Defendant) before the Company Court in Company Petition No.18/2010. The grievance of the Appellant is that the learned Judge has not granted interest on this amount apart from bank interest accrued thereon. Mr. Desai submitted that the learned Judge ought to also have awarded interest at the rate of 18% per annum on the amount of Rs.2.8 crores.

23. The amount of Rs. 2.8 crores was deposited by the 1st Respondent pursuant to the orders passed by the Company Court. The said amount has already been withdrawn by the Appellant along with the accrued interest thereon. Therefore, we are not impressed by the submissions of Mr. Desai on this point. We do not find any arbitrariness or perversity in the decisions of the learned Judge for not granting interest at the rate of 18% on Rs.2.8 crores, which was deposited by the 1st Respondent pursuant to the orders passed by the Company Court.

24. In view thereof, the First Appeal No. 51 of 2016 stands dismissed.

25. No order as to costs in First Appeal No. 51 of 2016.

26. Both the First Appeals stand disposed of in the above terms.