JUDGMENT J.P. Mukerji, J. This is an application made by the first and second defendants in the suit. The suit was filed sometime in 2007.This application was filed on 25th April, 2011.Although the prayers in it are for revocation of leave under Clause 12 of the Letters Patent and for return of the plaint the grounds taken in this application were akin to those in Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure. FACTS: 2. Before examining the merits of this application the facts of this case have to be noted in brief. 3. It appears that the third defendant was a borrower of I.C.I.C.I Bank Ltd. It had mortgaged or charged its substantial assets which included immovable properties, as security. On 30th March, 2004 the I.C.I.C.I Bank Ltd. had assigned their rights to the first defendant. The second defendant is an officer of the first defendant. 4. On 13th February, 2007 the first defendant agreed to transfer to the plaintiff this right for a consideration of Rs. 7.50 crores. It is categorically mentioned in paragraph 2 of the plaint that this sale was being made under section 13 (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 5. The important terms of this agreement dated 13th February, 2007 were that the sum of Rs. 7.50 crores was to be paid in stages as provided by the agreement. The entire consideration was payable on or before 31st March, 2010. The agreement would be performed by execution of a sale certificate by the first defendant in favour of the plaintiff by 1st June, 2007, upon inter alia, creation of security by the latter as stated in Clause 2 of the agreement. Upon the creation of this security the first defendant would deliver the assets to the plaintiff buyer free from any security, interest, pledge guarantee etc. The security mentioned in Clause 2 were letters of credit, pledge of shares and charge on the assets as mentioned in Schedule I of the agreement. Schedule I inter alia, referred to mortgage of immovable properties. Execution of the Sale Certificate was also conditional upon the payment of earnest money by the plaintiff. 6. The security mentioned in Clause 2 were letters of credit, pledge of shares and charge on the assets as mentioned in Schedule I of the agreement. Schedule I inter alia, referred to mortgage of immovable properties. Execution of the Sale Certificate was also conditional upon the payment of earnest money by the plaintiff. 6. The plaintiff seeks specific performance of this agreement dated 13th February, 2007 by a direction upon the first and second defendants to execute the sale certificate in their favour, in terms of the agreement, as claimed in claim (a) of the plaint. FORUM SELECTION CLAUSE: 7. The first point taken arises out of the Forum Selection Clause. The learned counsel for the applicants relies on two clauses. The first is Clause -1 which is copied hereunder: "4. Payment & Jurisdiction The payments/cheque shall be drawn and made payable in Mumbai. The ......jurisdiction shall be Courts of Mumbai." The second is 9 (e) (ix) which is also reproduced below: "ix) Disputes, if any, shall be subject to jurisdiction of Mumbai Courts/Tribunals only." It is argued that use of the word "only" ousts the jurisdiction of all other Courts except those in Mumbai. 8. The learned Counsel for the applicants cited the case of Shriram City Union Finance Corporation Ltd. vs. Rama Mishra reported in 2002 (9) SCC 613. But what is decisive, in my opinion, is the participation of these defendants in the proceeding. In the order dated 6th January, 2011 of San jib Banerjee, J. at page 15 of the Affidavit-in-Reply, in G.A. No. 429 of 2011 it is recorded that these defendants were represented by Counsel who "do not make any submission". His Lordship passed orders for amendment of the plaint, service of the amended plainly filing of written statements and so on. 9. In the case of Harshad Chiman Lal Modi vs. DLF Universal Ltd. And Another reported in (2005) 7 SCC 791 the Supreme Court clearly opined that there were three elements of jurisdiction, namely, territorial, pecuniary and subject matter. It is possible to waive territorial and pecuniary jurisdiction, but it is not so possible to waive, in every case, lack of jurisdiction over the subject matter. The order passed by a Court that lacked Jurisdiction over the subject matter makes the decree or order a nullity. But even lack of jurisdiction over the subject matter can be waived in some circumstances. The order passed by a Court that lacked Jurisdiction over the subject matter makes the decree or order a nullity. But even lack of jurisdiction over the subject matter can be waived in some circumstances. The Supreme Court cited with approval Halsbury's Laws of England, (4th Edn.), Reissue, VoL 10, para 317. It is said there that where the limitation is imposed on the power of the Court to entertain a particular subject matter by a statute or charter or commission, then, the parties cannot waive this lack of jurisdiction of the Court and confer jurisdiction upon it. However, if the Court has jurisdiction over the particular subject matter of the claim or over particular parties but there are circumstances which prevent the Court from, exercising jurisdiction, the parties may confer jurisdiction by agreement. The parties may also waive such right by taking steps in the proceedings or by making an appearance in the Court. 10. Now, this principle regarding the ability of the parities to waive, in certain cases, the objection relating to lack of jurisdiction over the subject matter, in my judgment applies fully to such objections raised on the basis of a forum selection clause in the agreement. By such clause the parties choose a particular forum for adjudication of their dispute. Now, the security which is mentioned under that clause of the agreement is under the heading "security". That clause is inserted below: "2. Security: a) The Buyer shall provide separate Standby Letters of Credit (SBLC) in the format and from a bank acceptable to Arcil towards the respective share of each of the Lenders for the installment of Purchase Consideration. The SBLC shall be additionally confirmed by a Confirming Bank. Alternatively, the Buyer shall provide, in lieu of the SBLC, security as stipulated in clauses (b) and (c) below. b) Pledge (in demat form) with voting, dividend and bonus rights of entire equity shares with Arcil within May 31, 2007.Such pledge shall not constitute less that 76% (seventy six percentage) of the equity share capital of the Company; c) Buyer shall create security and charge on the assets (more specifically mentioned in Schedule I hereto) so purchase through this transaction, towards the Purchase Consideration in favour of Arcil. d) 10 (Ten) PDCs for amounts as per the repayment schedule mentioned in Schedule IX." 11. It is argued by Mr. d) 10 (Ten) PDCs for amounts as per the repayment schedule mentioned in Schedule IX." 11. It is argued by Mr. Pratap Chatterjee learned Senior Advocate for the applicants that the plaintiff was required to create "security and charge" on the assets mentioned in Schedule 1. 12. Now, Schedule I refers to both immovable properties and movable assets. Immovable properties are described under Part (a). They are further described by the phrase "mortgage on immovable properties of UAL". The movable properties are described in Part 'B'. They are further described as "hypothecation on movable assets of UAL". Now, it is argued that execution of sale certificate is not possible unless the precondition of creation of security provided by the above clause is fulfilled. Creation of charge necessarily implies mortgage or charge of immovable properties described in Schedule I. Hence specific performance of this agreement involves creation of some kind of a title in immovable properties and rights arising there from. Hence this is plainly a suit for land. The case of Tridandeeswami Bhakti Kusum Sraxnan Maharaj and Others vs. Mayapore Sree Chaitanya Math and Others reported in AIR 1983 Cal420 is relied upon. 13. Mr. Bimal Kumar Chatterjee, learned Senior Advocate appearing for the plaintiff submits that it is true that as a precondition to execution of the sale certificate the plaintiff had to create security. Now, the types of security as mentioned in Clause 2 include letters of credit, pledge of shares in addition to creation of "security and charge" of the assets mentioned in Schedule I. He makes a very interesting argument when he says that the description of property under Part A of Schedule I and Part B of the same Schedule is about the nature of the existing interest in the properties e.g. under mortgage or hypothecation, to be conveyed to the plaintiff in terms of the agreement dated 13th February, 2007.This particular clause that is (c) of 2 refers to properties in Schedule I and does not describe the type of charge to be created. In other words "security and charge" has to be created with regard to properties mentioned in Schedule I, which comprises of Parts A and B. Now, Part B rises of movable properties which are under hypothecation. According to him it may well suffice if security is created of movable properties only. In other words "security and charge" has to be created with regard to properties mentioned in Schedule I, which comprises of Parts A and B. Now, Part B rises of movable properties which are under hypothecation. According to him it may well suffice if security is created of movable properties only. Then there is no question of creation of any interest in any immovable properties. Hence, the argument that the suit is a suit for land cannot stand. 14. When is a suit a suit for land? 15. This point has been argued in all our High Courts, the erstwhile Federal Court and the Supreme Court again and again and is settled. If the suit claims declaration of title to an immovable property situated outside the jurisdiction of the Court, it is a suit for land. Such is also the case when possession or control of such property is sought. Such is also the case when a decree passed by the Court would necessarily result in the decree-holder taking possession of such land. (See the comparatively recent case of our Court Tridandeeswami Bhakti Kusum Sraman Maharaj and Others vs. Mayapore Sree Chaitanya Math and Others reported in AIR 1983 Cal 420 cited by Mr.Pratap Chatterjee, learned Senior Advocate). 16. But the Courts have also long held that when the claim is' only for execution of a document relating to an immovable property, the suit is not a suit for land, e.g., a decree directing the defendant to execute conveyance in favour of the plaintiff of an immovable property situated outside the jurisdiction of this Court and this was the only relief claimed in the plaint (See Shib Kumar Banerjee vs. Rasul Bux reported in AIR 1959 Cal 302 ; See also paragraph 23 of Debendra Nath Chowdhury vs. Southern Bank Ltd. reported in AIR 1960 Cal 626 ) cited by Mr.Bimal Kumar Chatterjee, learned Senior Advocate. 17. However, when the claim for possession was inextricably tied up with the claim for execution of conveyance, possession had to be claimed. It could not be omitted by taking leave under Order 2 Rule 2 of the Code of Civil Procedure and suing for that claim later (See the case of Sm, Bimal Kumari vs. Asohe Mitra reported in AIR 1955 CaI402). 18. It could not be omitted by taking leave under Order 2 Rule 2 of the Code of Civil Procedure and suing for that claim later (See the case of Sm, Bimal Kumari vs. Asohe Mitra reported in AIR 1955 CaI402). 18. Although section 16 is inapplicable to this High Court by virtue of section 120 of the Civil Procedure Code, nevertheless the principles, of section 16 cannot be ignored. It says that a suit for recovery of an immovable property shall be instituted in the Court within the jurisdiction of which the property is situated. The proviso is very important. It is in the following terms: it says that when relief respect to immovable property can be obtained entirely by personal obedience of the defendant then it is not necessary for the suit to be instituted only in the place where the property is situated. But in Sm. Bimal Kumari vs. Asoke Mitra reported in AIR 1955 Cal 402 (Supra) that was not the case as possession was linked with execution of conveyance. Therefore, it boils down to this: if a buyer of an immovable property wants execution of a conveyance in his favour by the seller, the buyer being in possession of the property, then there no possession to be delivered to him. He can only ask for execution of conveyance and get all the reliefs he wants in the suit. But if the seller is in possession and together with execution of conveyance possession is also required, he cannot obtain a decree for execution of conveyance in one Court and obtain a decree for possession from any other Court by taking leave under Order 2 Rule 2 of the Code. 19. The latest judgment of the Supreme Court on this point is Adcon Electronics Put. Ltd. vs. Daulat And Another reported in AIR 2001 SC 3712 where the highest Court underlined the above principle that where a claim is for execution of conveyance only it is not a suit for land. 20. The arguments in the plaint is to be taken as correct (See the case of Indian Mineral & Chemicals Co. And Others vs. Deutsche Bank reported in (2004) 12 SCC 376 ). 20. The arguments in the plaint is to be taken as correct (See the case of Indian Mineral & Chemicals Co. And Others vs. Deutsche Bank reported in (2004) 12 SCC 376 ). The corollary to this principle is that, if by a statement contained in the plaint, it does not disclose any cause of action or the suit appears to be barred by law, the Court can pass an order rejecting the plaint or dismissing the suit. (See the case of Ramesh B. Desai And Others vs. Bipin Vadilal Mehta And Others reported in (2006) 5 SCC 638 ). 21. The objection under Order 7 Rule 11 of the Code is a demurrer. This legal concept has been so wonderfully explained by the Supreme Court in Ramesh B. Desai And Others vs. Bipin Vadilal Mebta And Others reported in (2006) 5 SCC 638 (Supra). It is described as an objection or an act of taking objection or a protest. It proceeds on the assumption of the truth of inter alia a pleading made by the opposite party. Proceeding on that assumption the demurrer tries to show that .such pleading cannot sustain the claim (See paragraphs 11 and 15 of the judgment).The language of Order 7 Rule 11 makes it clear that if the plaint does not disclose a cause of action or appears from a statement therein to be barred by law, the plaint is to be rejected. Now, if this objection is taken as a demurrer only the statements in the plaint have to be gone into (See also the case of Indian Mineral & Chemicals Co. And Others vs. Dcutsche bank reported in (2004) 12 SCC 376 (Supra)). 22. Now let me come to the relevant facts. 23. Claim (a) of the plaint seeks a decree of specific performance of the agreement dated 13'h February, 2007. One phrase in the claim is very, significant. It asks for specific performance "in terms of the said agreement". 24. When the plaint seeks specific performance of the agreement "in terms of the agreement the plaintiff wants specific performance according to those terms. When such a statement is made in the plaint, in my opinion, the agreement itself can be deemed to be part of or incorporated in the plaint. 24. When the plaint seeks specific performance of the agreement "in terms of the agreement the plaintiff wants specific performance according to those terms. When such a statement is made in the plaint, in my opinion, the agreement itself can be deemed to be part of or incorporated in the plaint. The Court can look into the terms of the agreement to see whether their enforcement would result in a decree in a suit for land. 25. No doubt the above clause of the agreement makes execution of the sale certificate in favour of the plaintiff conditional inter alia, upon creation of security. The types of security, as mentioned in Clause 2 above, refer to letters of credit, pledge and creation of "security and charge on the assets (more specifically mentioned in Schedule I herein)". I think Mr. Bimal Kumar Chatterjee is correct when he says that Clause (c) refers to only the properties mentioned in Schedule 1. The description like mortgage or hypothecation in Schedule I refers to the mortgage or hypothecation created by the third respondent with the ICIC1. Bank Ltd. It is not to be construed that security in terms of Clause 2 is to be inter alia, by mortgage of the immovable properties mentioned in the Schedule. Therefore, in my judgment on a reading of this agreement the plaintiff was at liberty to create any security on these properties or a part of them so as to secure the balance. It could well secure such sum by hypotecation of the movable properties in Part B. 26. Therefore, I find nothing in the plaint to suggest that the instant suit is a suit for land. SARFAESIACT 27. Now I come to the last point. It is argued by Mr.Pratap Chatterjee learned Senior Advocate that on a statement in the plaint the suit is barred by law. He refers to paragraph 2 of the plaint. He argues that it is averred therein that under the terms of the agreement the first and second defendants intended to conduct the sale under section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.The agreement is also to the same effect. It provides for sale under the said Act, I was shown section 5 of the said Act to say that upon assignment of its rights by ICIC1. It provides for sale under the said Act, I was shown section 5 of the said Act to say that upon assignment of its rights by ICIC1. Bank Ltd. in favour of the first defendant, this defendant became a lender or secured creditor under the Act. If the sale, according to Mr.Chatterjee, was under section 13(4) of the Act, then under section 17 any person aggrieved by any measure taken under the sub-section could apply to the Debts Recovery Tribunal. Section 34 barred cognizance of the dispute by a Civil Court. 28. I have considered section 13 (4), section 5 and other relevant provisions of this Act. Let us see what section 13 (4) has to say: "(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely: (a)....................................... (b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: Now, let us turn to section 5: "5. Acquisition of rights or interest in financial assets (1) Notwithstanding anything contained in any agreement or any other law for the time being in force, any securitisation company or reconstruction company may acquire financial assets of any bank or financial institution- (a) by issuing a debenture or bond or any other security in the nature of the debenture, for consideration agreed upon between such company and the bank or financial institution, incorporating therein such terms and conditions as may be agreed upon between them; or (b) by entering into an agreement with such bank or financial institution for the transfer of such financial assets to such company on such terms and conditions as may be agreed upon between them. (2) If the bank or financial institution is a lender in relation to any financial assets acquired under sub-section (1) by the securitisation company or the reconstruction company, such securitisation company or reconstruction company shall, on such acquisition, be deemed to be the lender and all the rights of such bank or financial institution shall vest in such company in relation to such financial assets. (3),..................................... (4).................................................................." 29. Now, who is a 'borrower' and 'secured creditor? (3),..................................... (4).................................................................." 29. Now, who is a 'borrower' and 'secured creditor? "2(f) "borrower" means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or credited any mortgage or pledge as security for the financial assistance becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance;" "2(zd) "secured creditor" means any bank or financial institution or any consortium or group of banks or financial institutions and includes- (i) debenture trustee appointed by any bank or financial institution; or (ii) securitisation company or reconstruction company, whether acting as such or managing a trust set up by such securitisation company or reconstruction company for the securitisation or reconstruction, as the case may be; or (iii) any other trustee holding securities on behalf of a bank or financial institution, In whose favour security interest is created for due repayment by any borrower of any financial assistance:" 30. Section 17 and section 34 are set out below; "17. Right to appeal (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application alongwith such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken: ......... 34. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of1993)." 31. Now, several questions have to be answered. 1. Is the first defendant a securitisation company or reconstruction company? 2. If so, has it acquired rights or interest in the financial assets of LC.I.C.L Bank Ltd relating to the third defendant under the above Act? 32. Now, several questions have to be answered. 1. Is the first defendant a securitisation company or reconstruction company? 2. If so, has it acquired rights or interest in the financial assets of LC.I.C.L Bank Ltd relating to the third defendant under the above Act? 32. Affirmative answers, to these questions are not available in the plaint, so that the Court can consider throwing out the plaint. 33. The plaintiff is an intending transferee from the first defendant. An agreement for sale-has been executed in favour of the plaintiff. The plaintiff seeks specific performance of this agreement. 34. Let us assume that the proposed sale was a measure under section 13 (4). 35. Is alleged breach of this kind of an agreement under the purview of section 17? 36. The Debts Recovery Tribunal, under section 17 is to examine whether the measure taken was under the Act and no more. Say, for example sale. The Debts Recovery Tribunal can rule whether the sale was a correct measure adopted and conducted properly under the Act. Incidental questions can be gone into by the tribunal as explained in the section itself and other parts of the Act. 37. Now, if an allegation is about an assignee of a secured creditor not performing an agreement for transfer with a third party, the third party claiming specific performance thereof, I think it would be stretching the jurisdiction of the Debts Recovery Tribunal to impermissible limits to hold that it has jurisdiction to try the case. 38. In the case of United Bank of India vs. Satyawati Tondon and others, reported in (2010) 8 SCC 110 cited on behalf of the applicants, notices under sections 13(2) and 13(4) and the action taken under section 14 of the said Act were challenged before the High Court by filing a writ application. The Supreme Court, after a detailed analysis of the history behind enactment of the said statute and after considering in detail each and every relevant section thereof came to the conclusion that such notice and action were in accordance with the Act and that the High Court should not have entertained the writ application and passed orders therein. The Supreme Court, after a detailed analysis of the history behind enactment of the said statute and after considering in detail each and every relevant section thereof came to the conclusion that such notice and action were in accordance with the Act and that the High Court should not have entertained the writ application and passed orders therein. In Kanaiyalal Lalchand Sachdeu and others vs. State of Maharashtra and others, reported in (2011) 2 SCC 782 , also cited on behalf of the applicants, the Supreme Court held that an action under section 14 of the Act was an extension of an action under section 13(4). In this case the Supreme Court lauded the judgment of the High Court dismissing the writ application. These two cases were not even cited at the time of argument but incorporated in the written notes. Therefore, the plaintiff did not have an opportunity to deal with them. But I thought giving the plaintiff an opportunity to deal with them, after judgment was reserved in the case, would be futile and wastage of time as it would appear from the facts of the above cases that they were totally different from those involved here. I am unable to see how those cases were applicable in the facts of this case. 39. Therefore, all the points raised in the Order 7 Rule 11 application fail. This application is dismissed. I make it clear that my findings must be confined to the extent necessary to determine whether the plaint disclosed a cause of action or appeared to be barred by law on the face of it. 40. Let the suit be expeditiously tried. The written statements, not filed yet, be filed within four weeks from date. 41. Urgent certified photocopy of this judgment/order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.