1. The petitioner is the plaintiff in O.S 390 of 1975 of the Munsiff's Court, Perumbavoor. That suit was filed for an injunction restraining the defendant, Kerala State Small Scale Industries Corporation, Trivandrum (now amalgamated into Kerala State Small Industries Development and Employment Corporation Limited, Trivandrum) from seizing certain machines mentioned in the schedule to the plaint and from taking any step for the recovery of amounts from the plaintiff pending execution of the ultimate agreement referred to in the plaint. The facts of the case as detailed in the plaint are as follows: The plaintiff applied to the defendant for obtaining certain machines for starting an industry under a scheme issued by the defendant. The scheme envisaged application in prescribed form and payment of earnest money and also made provision for payment of the amounts due. Where more than one machine is to be supplied and each individual machine forms part of a complete plant, a consolidated agreement has to be executed which is referred to as the ultimate agreement besides the agreements executed at the time of supplying individual machines. According to the plaintiff first instalment of repayment in respect of applications where an ultimate agreement is executed would fall due only on the expiry of one year from the date of such agreement. On the basis of the above provision, the plaintiff applied for purchase of machines. Individual machines supplied formed parts of the complete Plant and no machine could be made use of independently. In respect of machines supplied by the different concerns at the instance of the defendant, there were defects and also delay in supplying and as a result, the plaintiff was, not able to commission the plant in time. The plaintiff invested an amount of Rs. 70,000/- and had been paying rent of the premises from 1966. The plaintiff had been keeping the defendant informed about the delay in the supply of the machines and also about the defects. The defendant was asked on various occasions to take steps for the execution of the ultimate agreement in accordance with the terms of the contract. The defendant omitted to take steps. At the same time, the defendant has been pressing the plaintiff to pay the entire amount for the machines and has been threatening to take arbitrary and illegal steps to paralyse the plaintiff's unit. Attempts to seize the machines with police force were also being made. According to the plaintiff, until and unless the ultimate agreement is executed, he is not liable to pay the amounts demanded by the defendants. Hence the suit for injunction.

2. The defendant in his written statement disputed the averments in the plaint and contended that the plaintiff was to pay the arrears of instalments till 31-9-1975 amounting to Rs. 1,35,197-17 p. and penal interest of Rs. 9,159-91 P. According to the defendant, the registered office of the Company is at Trivandrum and as per the agreement executed, the parties agreed to choose the Courts at Trivandrum alone and no other Court whatsoever to have jurisdiction to try all suits in respect of the claims and disputes arising out of or under the agreement. It was contended that the suit filed before the Perumbavoor Munsiff's Court was not maintainable.

3. The issue relating to the local jurisdiction of the Court was considered as a preliminary point. The Additional Munsiff. Perumbavoor held that his Court had no jurisdiction to entertain the suit and returned the plaint for presentation before the proper Court. C.M.A 17 of 1976 was filed by the plaintiff against the above decision. The Additional District Judge, Parur dismissed the appeal and confirmed the decision of the trial court. The revision petition is filed challenging the above order.

4. On behalf of the petitioner-plaintiff, the contention raised is that once the machines are installed on land and becomes attached to it, it becomes immovable property. Reference is made to the decision in Om Prakash v. Anar Singh (AIR. 1973 Allahabad 555) and it is argued that in view of S. 16(d) of the Code of Civil Procedure a suit for injunction has to be instituted in the court in whose territorial jurisdiction the property lies.

5. Under S. 16(d) of the, Civil Procedure Code a suit for the determination of any right to immoveable property is to be filed in the court within the local limits of whose jurisdiction the property is situate. The stand taken on behalf of the petitioner is that the different pieces of machinery received under the individual agreements have been put to use as parts of a single completed plant. The plant is embedded to earth and should be considered to be immoveable property and therefore the suit for injunction in respect of the property would lie in the Munsiff's Court. Perumbavoor.

6. The Civil Procedure Code does not define an immoveable property. The expression should therefore be understood in the sense in which it is defined in the General Clauses Act: “Immovable property includes land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth”. Whether a machinery is immoveable property will depend upon the facts and circumstances of each case. If it is embedded to the earth or fastened to something attached to the earth it may form part of immoveable property. Blackburn, J. observed in Holland v. Hodeson (1872) 7 C.P 328):

“There is no doubt the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation.”

7. There is not even a casual statement in the plaint in the instant case that the different machines are attached to the land where they are situate. The plaint makes no reference to the land where the machines are placed. There is no averment that the plaintiff is in possession of such land. On the other hand, from the relief claimed, viz., injunction against seizure of the machines it is clear that the plaintiff treated the different items of machines as moveable property and not property embeded on the earth. If the machines do not form immoveable property, S. 20 of the Code of Civil Procedure would apply and the suit should be instituted either where the defendant resides or where the cause of action arose. The respondant defendant would however place relevance on Ext. B1, the agreement between the parties and would say that the suit would lie only in one of the courts at Trivandrum. Clause 16 of Ext. B1 reads:

“All the terms and conditions of this agrement, unless otherwise provided, are to be observed and performed at Cochin and Trivandrum. The courts at Trivandrum alone, and no other courts whatsoever, will have jurisdiction to try all suits in respect of any claim or dispute arising out of or under this agreement or in any way relating to the same.”

8. The argument is that in the light of the agreement between the parties, the Munsiff's Court, Perumbavoor has no jurisdiction to entertain the suit.

9. Reference may in this connection be made to the decision in Hakam Singh v. Gammon (India) Ltd.† . ((1971) 1 SCC 286 : AIR. 1971 SC. 740). The matter arose in connection with a dispute in relation to certain construction work on terms and conditions of a written tender. Clause 13 of the tender directed that notwithstanding the place where the work under the contract was to be executed, it was mutually understood and agreed by and between the parties thereto that the contract would be deemed to have been entered into by the parties concerned in the City of Bombay and the Courts of law in the city of Bombay alone would have jurisdiction to adjudicate on the dispute. An application under the Indian Arbitration Act was filed before the Subordinate Judge, Varanasi. Objection relating to jurisdiction was raised by the opposite party. The matter ultimately came up before the Supreme Court. The Supreme Court observed:

“By Cl. 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the City of Bombay. In any event the respondents have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the Courts at Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. Such an agreement does not contravene S. 28 of the Contract Act.”

10. In the instant case, as per the terms of the agreement, the contract is to be performed at Cochin and Trivandrum and the Courts at Trivandrum alone is to have jurisdiction to try the suits, in respect of claims arising out of the agreement. Since the defendant's office is at Trivandrum, it cannot be said that jurisdiction was conferred by the agreement of parties to a Court having no jurisdiction at all. Under such circumstances, the parties are bound to respect the agreement entered into by them in other words, the suit should have been filed in the appropriate court at Trivandrum having jurisdiction to try the case. The order returning the plaint under such circumstances cannot be said to be unauthorised. The revision petition is, therefore, dismissed.

11. Dismissed.