Final Order 1

Order Details: Notice of Motion
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MHCC010020072019
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO.765 OF 2019
IN
COMMERCIAL SUIT NO.98 OF 2021
Yogesh Bafna, the Director of ]
P.P.Bafna Ventures Private Limited, ]
its registered office at Office No.101111 ]
Tower No.1, World Trade Centre, Kharadi ]
Pune 411 014 ]...Applicant
[Defendant No.3]
In the matter between:
Nippon Express (India) Pvt. Ltd., ]
Company incorporated under the ]
Companies Act Having its registered office ]
at “The Millenia” Unit No.302, Level 3, ]
Tower “B” No. 1 & 2, ]
Murphy Road, Ulsoor, ]
Bengaluru – 560 008. ]
And
Branch Office at GD2, Ground Floor, ]
“D” Wing, Gundecha Onclave, Kherani ]
Road, Saki Naka, Andheri (East) 400 072. ] ....Plaintiff
V/s
1. P.P.Bafna Ventures Private Limited, ]
its registered office at office No.111 ]
Tower No.1, World Trade Centre ]
Kharadi, Pune – 411 014 ]
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2. Praful Bafna, Director of ]
P.P. Bafna Ventures Private Limited ]
its registered office at Office No. 111, ]
Tower No.1, World Trade Centre, Kharadi, ]
Pune – 411 004. ]
3. Yogesh Bafna, Director of ]
P.P. Bafna Ventures Private Limited, ]
its registered office at Office No. 111, ]
Tower No.1, World Trade Centre, Kharadi, ]
Pune – 411 014. ]...Defendants.
Appearances:
Adv. Pradeep Hingorani, for the plaintiff.
Adv. Siddharth More for the defendants.
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 24th November, 2021
ORDER
This Notice of Motion is taken out by the defendants under
Order VII Rule 10 of the Code of Civil Procedure, 1908 (in short 'CPC')
for return of plaint for want of territorial jurisdiction.
In brief facts giving rise to filing of this notice of motion are as
under:
2. It is the contentions of the defendants that this Court does
not have jurisdiction to try the suit. The contract between the parties,
the offer, acceptance and important communication, negotiations
between the parties are held at Pune. The alleged breach of non
payment of dues as alleged is occurred at Pune. Services offered were
availed at Pune. Cause of Action wholly or partly arises at Pune.
Therefore, according to the defendants, the Court at Pune will have
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jurisdiction to try and entertain the present suit. It is further alleged by
the defendants that the suit ought to have been instituted within the
jurisdiction of the Court where the defendants reside. The defendants
were operating from its registered office at Pune. Therefore, the
defendants carried out their business at Pune. For this reason also the
Court at Pune will have jurisdiction. Entire negotiation between the
parties including performance and execution of contract are held at
Pune. Payment in respect of services were made from Pune. Same were
acknowledged by Plaintiff at Pune. For hiring their services, the
defendants had approached to the plaintiff at Pune,. In these regards,
the officials of the plaintiffs working at Pune addressed email dated 30th
May, 2014 providing brief introduction, explaining the profile and
various services. After negotiation at Pune, the defendants decide to
acknowledge/engage the service of the plaintiff which were required to
be executed at Pune. Mr. Jerome Lawrence, the representative of the
plaintiffs office at Pune was incharge in respect of contract between the
parties. The defendants have relied on certain emails in support of their
contentions regarding jurisdiction. It is their further contention that
draft bill of landing was provided to the plaintiff from Pune. Emails
show that the meetings, negotiations and discussions are held at Pune.
Payments were released from Pune office and acknowledged by the
plaintiff at Pune. Vide Email dated 01/09/2015 the contractual rate
with respect to the shipment were sought by the defendants from the
plaintiff at Pune. On the basis of this fact, it is contentions of the
defendants that the offer acceptance, performance of contract and
transactions are held at Pune. The branch office of the plaintiff at
Mumbai has merely acted upon the instructions which were received by
them from their representative from their Pune Office. The acts of the
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plaintiff's office at Mumbai pursuant to the performance of the contract
executed at Pune post completion of the contract cannot be binding
between the parties and cannot confirm exclusive jurisdiction upon this
Court. The defendants had first denied its liability for the losses caused
to them from Pune Office. Therefore, the cause of action wholly or
partly arises at Pune. With these contentions the defendants have
prayed to return plaint to the plaintiff under order VII Rule 10 of the
C.P.C. for want of jurisdiction.
3. The plaintiff by reply filed to the present notice of motion
has resisted the same, contending that the issue of jurisdiction is mixed
issue of fact and law and hence, it cannot be decided by way of Notice
of Motion. The issue is raised about the territorial jurisdiction and the
defendants are urging to look into the documents which are not part of
the record so far. The plaintiff has denied the contentions of defendants
raised in respect of jurisdiction. According to the plaintiff, the services
were offered from Mumbai and goods were exported from Mumbai.
Part payment was received in the plaintiff's account at Mumbai. All the
invoices were issued from Mumbai and therefore, cause of action has
arisen at Mumbai. It is further contention of the plaintiff that as per
Section 20(c) of C.P.C. the plaintiff has option to file suit before the
Court in whose jurisdiction cause of action has wholly or in part arisen
and therefore, the plaintiff was justified in filing the suit before this
Court. The original offer was made by the defendants at the Plaintiff's
office at Mumbai. The plaintiff's Pune office has played role to follow up
the action. Negotiation were started at Mumbai. Rates were officered by
the plaintiff's Mumbai office. There was no formal agreement between
the parties. Services were carried out by the plaintiff's office at Mumbai
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The plaintiff have relied upon various emails exchanged between the
parties. The fact of defendants having their registered office at Pune
has no relevance or bearing on the dispute. With these contentions, the
plaintiff has prayed to dismiss the notice of motion.
4. Heard the learned Advocates for the plaintiffs and the
defendants. Read the written notes of arguments filed by the parties.
Points for determination along with my findings thereon with reasons
are as follows:
POINTS FINDINGS
1. Whether this Court has territorial
jurisdiction to try and decide this suit? Yes
2. Whether the plaint is required to be
returned under Order VII Rule 10 of the
CPC?
No
3. What Order? Notice of Motion is
dismissed.
REASONS
AS TO POINT NOs.1 AND 2:
5. Both these points are interlinked with each other and hence
they are taken together for adjudication. It is the contention of the
defendants that cause of action in respect of this suit has arisen at Pune
and therefore, plaint is required to be returned to the plaintiff to
present it before the proper Court. Whereas, it is the contention of the
plaintiff that the cause of action has arisen at Mumbai and therefore,
this Court has jurisdiction. The defendants have narrated certain facts
and want to rely on the same for deciding the issue. At this juncture, to
decide the jurisdiction of the Court, it is required to verify the
averments made in the plaint.
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6. The plaintiff has relied on the judgment in Begum Sabiha
Sultan Vs. Nawab Mohd. Mansur Ali Khan & Ors.(2007) 4 SCC 343,
wherein it is held that, "there is no doubt that at the stage of
consideration of the return of plaint under Order VII Rule 10 of the Code,
what it is to be looked into is the plaint and averments therein. At the
same time, it is also necessary to read the plaint in a meaningful manner
to find out the real intention behind the suit." In view of the same, it is
required to see the averments in the plaint and not the contentions in
the notice of motion regarding the jurisdiction.
7. As per the averments in the plaint, the plaintiff is Logistic
Service Provider, having its registered office at Bangalore and branch
office at Mumbai. The defendant No.1 is in business of manufacturing
note books and paper products and supplying note books, paper
products to their client abroad. Defendant Nos.2 and 3 are its Directors.
It is stated that pursuant to the discussions held between the parties the
plaintiff forwarded quotation for the purpose of consignments which
were to be exported by the defendants. Certain emails were exchanged
between the parties and thereafter the defendants engaged the plaintiff
for Logistic Services. The plaintiff has relied upon such emails
exchanged between 30.05.2014 to 25.03.2015.
8. It is further averments in the plaint that, defendants
thereafter exported their goods through the plaintiff resulting in
consignments being shipped on board and issuance of bill of landing.
For which the plaintiff raised various invoices. Defendants have made
payments in respect of some invoices. There were certain emails
exchanged between 31.03.2015 to 26.11.2015. Thereafter demand
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notice with respect to unpaid amount was issued by the plaintiff and
was replied by the defendant. It is further contention of the plaintiff
that the exchange of mail regarding discussion was held by the
defendants at Pune and plaintiff at Mumbai. D.O. for the containers
were issued from Mumbai. Draft Bill of landing was prepared at
Mumbai. Final bill of landing was issued at Mumbai. Invoices were
raised from Mumbai. Part payment has been received at Mumbai and
therefore substantial cause of action has arisen at Mumbai.
9. The copies of email which are relied on by the plaintiff and
which were exchanged between 30.05.2014 to 25.03.2015 are
produced alongwith the reply filed by the plaintiff. The email dated
18.03.2015 addressed by Mr.Rajeev Jadhav of the plaintiff's
representative to the defendant, is the quotation for logistic services for
USA and New York. The email dated 23.03.2015 is in respect of line
local charges. Both these email have been sent by Mumbai Office of the
plaintiff. The email dated 23.03.2015 is from Shrirang Datar of Exim
Management Services. The email dated 23.03.2015 is in respect of
booking confirmation in respect of vessel Zim Rio Grande, it is sent by
Mumbai office of plaintiff. There is email dated 12.04.2018 in respect of
revised booking of the defendants. Same is sent by the plaintiff's office
at Mumbai. There is email dated 31.03.2015 in respect of ISF details, in
which bill of landing number is mentioned and in the same email port
of landing is mentioned as Nhava Sheva and port of destination is
mentioned as New York, USA. The statement of account Exh.A attached
to the plaint is maintained and issued by the plaintiff's office at
Mumbai. The consignment is exported from Nhava Sheva, Mumbai.
Goods were loaded for export at Mumbai. Therefore, there is substance
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in the plaintiffs contention regarding the cause of action arisen at
Mumbai.
10. The defendants have relied on the judgment in Patel
Roadways Limited, Bombay Vs. Prasad Trading Company (1991) 4
Supreme Court Cases 270, New Moga Transport Company Vs.
United India Insurance Company Limited and Ors.(2004)4 Supreme
Court Cases 677 and Unimers India Limited Vs. IFCI Ltd. and Ors.
(2012) DGLS (Del.)773. The learned Advocate for the defendants by
relying on these citations, urged that cause of action has taken place at
Pune. Defendant No.1 is a registered company, having its office at Pune
and carrying its business at Pune. The plaintiff is having registered
office at Bengaluru and branch offices at Mumbai and Pune, transaction
is held with Pune office of the plaintiff and therefore, in view of Section
20 and its explanation II, the suit was required to be filed at Pune. He
also urged that if the cause of action has arisen at the place of the
subordinate office of the plaintiff, the plaintiff would be deemed to be
carrying on business at the place of its subordinate office and therefore,
suit ought to have been filed at Pune. He further urged that as per
Section 20(c) explanation II of CPC, the defendant carries on business,
or personally works for gain at Pune. He further submits that, there is
also no agreement selecting the place of jurisdiction at Mumbai and
therefore, this Court at Mumbai will not have jurisdiction.
11. In case before me, as per the pleadings in the plaint, the
plaintiff has relied on Section 20(c) of CPC. According to the plaintiff,
cause of action wholly or in part has arisen at Mumbai. The plaintiff has
not relied on clause (a) or (b) of Section 20 of CPC. The defendants
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have mainly relied on the explanation of Section 20 which reads as
under:
Explanation: A corporation shall be deemed to carry on business
at its sole or principal office in India or, in respect of any cause of action
arising at any place where it has also a subordinate office, at such place.
12. As aforesaid, in case before me, as per the plaint, the
plaintiff has relied on Section 20(c) of CPC. Section 20(c) gives the
jurisdiction to the Court at a place where cause of action wholly or in
part arises. The explanation part of Section 20 of CPC is providing
explanation with respect to the the place of the defendant where he
carries business. Even if, that explanation is read in favour of the
defendant the Court at Mumbai will have jurisdiction as the plaintiffs
branch office is also at Mumbai from which the transaction in respect of
cause of action has been held with the defendant.
13. In Patel Roadways case supra, it is specifically noted by the
Hon'ble Supreme Court that," it has not been urged before us on behalf of
the appellant that the cause of action wholly or in part arose in Bombay.
Consequently, clause (c) is not attracted to the facts of these cases''. Hence,
this judgment is not in respect of Section 20(c) of CPC and therefore the
explanation below Section 20 of CPC is not held as explanation shall be
read alongwith Section 20(c). Hence, this judgment is not helpful to the
defendants.
14. New Moga Transport Company's judgment, supra is in
respect of the issue where two or more Courts have jurisdiction to try
the suit, an agreement between the parties that the dispute between
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them shall be tried at any one place is not contrary to the public policy
and the agreement will not confer jurisdiction on a Court which
otherwise does not have jurisdiction. In case before me there is no such
agreement and hence, this judgment is not helpful to the defendants.
15. In Unimers India Ltd. case supra, subordinate office of
defendant was situated in Mumbai. Payment was effected in Mumbai.
Property against which debentures are secured situated in Mumbai.
Contract was executed in Mumbai and therefore Court at place of Delhi
where approval by Board of Director to the contract was given was held
as not the part of cause of action. In case before me, goods were handed
over and delivered from Mumbai, negotiations were held by Mumbai
office. D.Os for containers were issued from Mumbai. Bill of landing
was issued from Mumbai. Invoices were raised from Mumbai and
therefore, the aforesaid citation of Unimers India Ltd's. case supra is not
helpful to the defendants.
16. As aforesaid, As per the plaint, if cause of action is wholly
or in part arisen at Mumbai then this Court shall have jurisdiction to
decide this suit as per Section 20(c) of CPC. As aforesaid, explanation to
Section 20 if read in favour of defendant to hold that as the branch
office of the plaintiff is at Pune, the cause of action shall be considered
to have arisen at Pune, even then also in view of Section 20(c) if part of
cause of action has arisen at Mumbai where the plaintiff has also branch
office, this Court will have jurisdiction. Hence, there is no substance in
the contentions raised by the defendants. As part of cause of action has
arisen at Mumbai, therefore, in view of Section 20(c) of CPC, this Court
has jurisdiction to decide the suit. In the result, I answer point No.1 in
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affirmative and point No.2 in the negative.
AS TO POINT NO.3:
17. In view of my aforesaid findings against point Nos.1 and 2,
the notice of motion is required to be dismissed. Costs of this notice of
motion shall be kept in cause. In the result, in answer to point No. 3, I
pass the following order.
ORDER
1. Notice of motion is dismissed.
2. Costs of notice of motion is kept in cause.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date :24.11.2021 Mumbai.
Dictated directly on computer on : 23.11.2021 & 24.11.2021
Typed on : 23.11.2021 & 24.11.2021
Signed by HHJ on : 25.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
27.11.2021 at 11.17 a.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
24.11.2021
Judgment/order signed by P.O. on 25.11.2021
Judgment/order uploaded on 27.11.2021
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