Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 239/2018 IN SUT 1910/2017 1
CNR NO.MHCC010010022018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.239 OF 2018
IN
SUIT NO.1910 OF 2017
Maind Investments Ltd. .. .. Plaintiff
Versus
Mr.Ajay Rai & others ...Defendants
Shri. Jahangir Jeejibhoy advocate for the Plaintiff.
Shri.Kunal Kanungo advocate for defendant No.1.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt.Judge
CR no. : 32
Dated : 17th April.2018
ORDER
1. Defendant No.1 taken out this motion for –
i) Framing preliminary issue of jurisdiction u /s.9A of Code of Civil
Procedure.
ii) Dismiss suit for want of territorial jurisdiction.
iii) Rejection of plaint under Order VII Rule 11(a) & (d) of Code of Civil
Procedure.
In the alternative
iv) Defendant No.1 be deleted from the array of parties impleaded in
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the suit.
2. The place of business of defendant No.1 is at Borivali, Mumbai.
As per the notification issued in September,2007 the Bombay City Civil
Court Act formulated the City Civil & Sessions Court at Dindoshi,
Goregaon(E), Mumbai for Civil Territorial Jurisdiction extended from
Bandra to Dahisar on western side of Mumbai. As such, Bombay City
Civil Court at Old Secretariat Building, Kala Ghoda besides University,
Fort, Mumbai, Maharashtra 32 does not have jurisdiction to entertain
and adjudicate the suit filed by the plaintiff. The entire transactions and
cause of action if any arises outside the jurisdiction of this court, hence,
this court has no jurisdiction to entertain the suit.
3. Purchase orders were issued by the plaintiff dated 30/06/2016
addressed to the defendant No.2 . There was no privity of contract
between plaintiff and defendant No.1. This defendant has no
connection to the disputes arisen between plaintiff and other
defendants, therefore, defendant No.1 cannot be held responsible for
the alleged failure of transactions between plaintiff and defendant No.2.
4. It is settled law as the principal is known, no suit lie against the
agent. As per section 230 of the Indian Contract Act agent cannot be
personally bound by the contract on behalf of the principal, therefore,
suit is barred against him. As plaintiff has no cause of action against the
defendant No.1 hence, plaint be rejected or in the alternatively,
defendant No.1 be deleted from the title clause of the plaint.
5. Plaintiff filed the reply.
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6. On a bare perusal of motion the relief sought in the motion are
under section 9A and order VII Rule 11 of C.P.C. are mutually
destructive. On this ground alone motion is required to be dismissed
with compensatory costs.
7. Plaint clearly demonstrate how the cause of action arose within
the territorial jurisdiction of this court. Inquiry for materials sought to
be purchased by the plaintiff was made to defendant No.1 at Mumbai
from the plaintiffs register office at Nariman Point as set out in the
cause title of plaint. On behalf of defendant No.2 offer of the defendant
No.1 to sell was made to the plaintiff at its registered office. The
negotiations about the terms and conditions of sale and payment
thereof and delivery of the product purchased thereby, were entered
into and concluded at the plaintiffs registered office. The purchase
orders placed upon the defendant No.2 and advance payment against
the first purchase order were made by plaintiff from its registered office.
Remittance of the above payment in foreign currency was initiated from
the Bank of Baroda, Backbay Reclamation Branch, Mumbai20 was
within the territorial jurisdiction of this court on the plaintiffs
instructions. The emails dated 01/08/2016 and final email to the
defendant No.1 seeking refund of the advance payment made to
defendant No.2 was issued from the plaintiffs register office. In these
circumstances, cause of action arose was begin the territorial
jurisdiction right from the offer to sale to placing the purchase order to
the plaintiff. Defendant No.1 was well aware then also he has willfully
chosen to play a mischief under the garb by this motion therefore,
prayed for dismissal of the motion.
8 Heard Ld.advocate Shri.Kunal Kanungo advocate for defendant
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No.1 and advocate Shri. Jahangir Jeejibhoy for the Plaintiff.
9 A Plea of bar to jurisdiction of Civil Court has to be considered
having regard to the averment in the plaint disclosing cause of action
and relief sought for therein in its entirity. Jurisdiction with respect to
the subject matter of claim depends upon the allegations in the plaint.
10. Present suit is for recovery of amount against the defendant No.1
and 2 as per the particulars set out in Exh.N of the plaint. Defendant
No.1 is an agent of defendant No.2 and 3 in India. Defendant No.2 is a
Chines company and defendant No.3 is an Israel company having their
address mentioned in the title clause. Defendant No.1 acted for himself
and on behalf of defendant No.2 & 3 in relations to supply of products,
payment terms and other incidental terms of supply. After the
negotiations with the plaintiff by the defendants, plaintiff had issued a
purchase order in favour of the defendant No.2.Plaintiff has annexed
the copies of the purchase order with the emails along with the plaint.
11. I have perused the plaint, in para.4 and 5 plaintiff has specifically
mentioned that defendant No.1 by his email made an offer for the
products and their supply and thereafter negotiations ensued between
the plaintiff and defendant No.1 who acted for himself and on behalf of
defendant No.2. Plaintiff accepted the offer of the defendant No.1 and
sent on the cover of email order as per his instructions. Therefore, the
contract was accepted by the parties at plaintiffs registered office at
Nariman Point, Mumbai. It will be sufficient for a court to get
jurisdiction over a person that he should carry on business within the
local limits of his jurisdiction. The plaintiff ''carries on business” and
having its registered office at Nariman Point, Mumbai21.
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12. Considering these averments, cause of action clearly disclose by
the plaintiff to file the present suit against the defendants. Rejection of
plaint is undoubtedly a serious matter as it would terminate the
proceeding before the court and consequently have serious
repercussions on the rights of the parties. The same cannot be taken
recourse to lightly and required a serious consideration of the plaint and
the documents relied upon by the plaintiff.
13. Section 9A of Code of Civil Procedure contemplates that when an
issue of jurisdiction is raised, the said issue should be decided at first as
expeditiously as possible. The primary reason is that if the court comes
to finding that it does not have jurisdiction vested in it by law, then no
further inquiry is needed and saves a lot of valuable judicial time. But if
after considering the facts and circumstances in the case court is of the
view that the issue relating to jurisdiction is to be decided along with
other issues govern by the provisions of Order XIV Rule 2 of CPC, it is
the discretion of the court to decide the issue based on law as a
preliminary issue.
14. Defendant No.1 has placed reliance on:
1. M/s.Ace Innovators Pvt Ltd Through: Ms.Swega
Agarwal,Advocate Vs. Hewlett Packard India Sales Pvt Ltd & Ors.
Decided on 04/10/2013.
2. Radhakrishna Sivadutta Rai and Ors. Vs Tayeballi
Dawoodbhai AIR 1962 S.C.538.
In both the suits, suit was for damages for breach of contract by
defendant No.1 and defendant No.3 was an agent for the defendant
No.1 who was not entered into contract. As the liability for payment of
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damages was in action at tort and not flow from a contact, therefore, it
was observed that defendant No.3 was neither proper party or a
necessary party. Hence, name of the defendant No.3 was deleted from
the array of parties.
15. Both the parties have placed reliance on Board of Trustees of
Jawaharlal Nehru Port Trust Vs. Continental Float Glass Limited
and Others 2009 SCC Online Bombay 573.
The disclosed principal was a foreigner but plaintiff had not sued the
foreigner disclosed principal and question was only whether agent can
be sued or foreign disclosed principal can be sued in its place.
16. In the instant matter, defendant No.2 & 3 who are the foreign
principals had appointed defendant No.1 as their agent represented in
India. Defendant No.1 had represented and assured that the shipment
of caustic soda pearl would be delivered to the plaintiff, but defendants
failed to prove the required shipment in terms of the purchase orders.
Defendant No.1 is conducting the business on behalf of the defendants
in India.
17. The contentions raised by defendant No.1 in the motion that
defendant No.1 is not liable for payment as claimed by plaintiff against
him, this aspect can be adjudicated at the time of trial. Plaintiff has
made the specific averment in the plaint against the defendant No.1 ,
therefore, there is a cause of action for the plaintiff to file a suit against
him. This is not a fit case for grant of relief as prayed by the defendant
in the motion.
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18. In view of above discussion, I proceed to pass following order.
ORDER
Notice of Motion No.239/2018 is dismissed with costs.
Date :17/04/2018 (Pushpa N. Rao)
Ad hoc Asst.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 17/04/2018
Signed by HHJ on :17/04/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/04/2018 at (11.45 p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
17/04/2018
JUDGMENT/ORDER signed by
P.O.on
17/04/2018
JUDGMENT/ ORDER uploaded on 20/04/2018
.
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