Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1460/19 in SU 2072/15
MHCC010038472019
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CNR No. MHCCO1-003847-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1460 OF 2019
IN
S.C. SUIT NO.2072 OF 2015
M/s. Poonam Enterprise
17/A, Kantibhavan, 1st Parsiwada Lane,
Mumbai 400 004 ]… Plaintiff
V/s.
P.S. Techcom Pvt. Ltd.
25, 1st floor, 9th B Main, Chairman Layout,
anaswadi, 80 ft. Road, Bangalore 560043
2. Mr. Prasad Parasuraman
3. Priya Parasuraman
Director / Authorised Person of Deft. No.1
residing at 15, Madhav Nagar, Abhyankar Nagar,
Nagpur 440 010
4. Mr. Subhash Seshamani
Director / Authorised Person of Deft. No.1
Janakbhavan, Dharampeth, Gokulpeth, Nagpur 440 010.
5. Mr. Satish Kumar Dubey
Director / Authorised Person of Deft. No.1
H. No. C-1/1407 Vasant Kunj,
New Delhi 110 070 ]... Defendants
Appearances :-
None for plaintiff.
Dhrumil Shah Adv. for defendant Nos.1 to 3 present.
None for Deft. No.4 and 5
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CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G. BORLEPWAR
(C.R.No.20)
DATED : 14rd March, 2020
ORAL ORDER
1. Defendant Nos.1 to 3 took out this Notice of Motion to reject the plaint
under Order 7 Rule 11(d) of Civil Procedure Code.
2. In brief its contention of defendants that this court has no territorial
jurisdiction to entertain and try the suit. No cause of action arise within jurisdiction
of this court. As per the purchase order jurisdiction is specifically stipulated with the
Bangaore courts. The purchase order was placed from Bangalore, goods supplied at
Bangalore and the payment was to be made at Bangalore. Entire cause of action
arose at Bangalore. All the defendants at material time resided and worked for gain
from Bangalore. Therefore plaint be rejected.
3. In brief its contention of the plaintiff that all the adverse contentions are
denied. Purchase order placed by the defendant contains jurisdiction clause that all
disputes relating to the purchase order or relating to the price of the goods supplied
or otherwise arising there from between the parties shall be subject to the competent
court of jurisdiction situated at Bangalore.
4. There is no ouster clause in the said purchase order, cause of action
arose within jurisdiction of this court. Purchase order received at plaintiffs office in
Mumbai through email. Plaintiffs Mumbai office accepted the purchase order and
communicated to the defendants through email. The invoice raised from Mumbai,
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the part payment received at Mumbai. Plaintiffs bank is in Mumbai. The invoice also
bears the bank details of the plaintiff. As per Section 20(c) of the CPC, the suit can
be filed where the cause of action arises wholly or in part. Therefore Notice of
Motion is dismissed.
5. Perused the Notice of Motion, affidavit in support of Notice of Motion,
reply of plaintiff. Heard both the advocates.
6. Following points arise for my determination. I record my findings
thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether the plaint is liable to be
rejected under order 7, Rule 11(d) of
CPC ?
Negative
2. What Order ? Dismissed as per
final order
REASONS
As to point Nos.1 to 2.
7. Perused plaint, it is pleaded that plaintiff is a proprietary firm having its
office at Mumbai. Defendants No.1 is a Private Limited Company. Defendant Nos.2
to 5 are handling day to day activities of Defendant No.1 Company. It is pleaded in
paragraph 2 of the plaint that Defendant Nos. 2 to 5 on behalf of Defendant No.1
has approached the plaintiff, and placed the Purchase Order through their division
M/s. Vecaun Projects, with the plaintiff. Plaintiff sold and supplied the goods to the
defendants and raised necessary invoices for the same.
8. Defendants duly received the goods along with the invoices. They did
not raise any objection regarding the quality, quantitiy and / or the rates of the
same. Defendants towards the said payment issued a cheque for a sum of
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Rs.12,42,690/-. The said cheque dishonored. The plaintiff through his advocate
issued notice to the Defendant No.1 and called upon to pay the outstanding dues of
the plaintiff. Defendant No.1 received the said notice. Defendant replied the said
notice through letter dated 12.01.2015 and admitted that they had made payment
of only Rs.10,55,000/- instead of Rs.12,25,630/-. The defendant falsely claimed that
the balance amount could not be cleared due to excise clearance and sought time to
make the balance payment.
9. It is pleaded in the plaint that the plaintiff is entitled to recover from
defendants, principal amount of Rs.1,30,630/- along with interest.
10. Perused title clause of the plaint. The address of the Defendant No.1 is
of Bangalore. Address of Defendant No.2 is not given. Address of Defendant No.3
and No.4 are of Nagpur. Address of Defendant No.5 is of New Delhi.
11. Perused Section 20 of Civil Procedure Code. The said Section 20 runs as
under :
“Other suits to be instituted where defendants reside or cause of action
arises : Subject to the limitations aforesaid, every suit shall be instituted in
a Court within the local limits of whose jurisdiction –
a) the defendant, or each of the defendants where there are more
than one, at the time of the commencement of the suit, actually and
valuntarily risides, or carries on business, or personally works for
gain; or
b) any of the defendants, where there are more than one, at the
time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or
the defendants who do not reside, or carry on business, or
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personally work for gain, as aforesaid, acquiesce in such institution;
or
c) the cause of action, wholly or in part, arises;”
12. Perused Order 7 Rule 11 (d) of CPC. As per the said provision the plaint
shall be rejected in the case where suit appears from the statement in the plaint to
be barred by any law.
13. As per section 20 of the CPC every suit shall be instituted in the court
within the legal limits of whose jurisdiction, the cause of action wholly or in part
arises.
14. Perused the plaint, the learned advocate appearing for defendant relied
upon the citations of the
Hon’ble Madras High Court in the case of Andhra Pradesh
State Trading Corporation V/s. Auro Logistic Ltd. And Another decided on
24.02.2006 in Application No.4830 of 2005. In the cited case, it was agreed in the
Memorandum of understanding that all these matters must be settled before the
Civil Court of Hyderabad. Thus by the mentioning all certain jurisdiction specifically
in the contract entered into the parties, an intention to exclude all other have got to
be taken.
15. The learned advocate for the defendant relied upon the citation of
Supreme Court of India Hanil Era Textiles Ltd. V/s. Puromatic Filters P. Ltd.
Reported in 2004 in Supreme Court Cases 671. It is held when ouster clause which
is clear unambitious and specific, accepted motions of contract would bind parties,
and unless absence of ad idem can be shown courts should avoid exercising
jurisdiction.
16. Learned advocate for the plaintiff relied upon the citation of the
Hon’ble Supreme Court of India in the case of A.B.C. Laminart (P.) Ltd. V/s. A.P.
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Agencies, Salem decided on 13.03.1989, in Civil Appeal No.2682 of 1982. It is held
if making of contract was a part of the cause of action and a suit on a contract
therefore could be filed at the place where contract is made.
17. Perused the purchase order. It is mentioned in the purchase order that
“all the disputes relating to the purchase order or relating to the price of the goods
supplied or otherwise arising there from between the parties shall be subject to the
competent court of jurisdiction situated in Bangalore”.
18. Perused section 20 (c) of the CPC. I also perused the plaint. It appears
that part of the cause of action arose within the territorial of jurisdiction of this court
i.e. at Mumbai. Therefore, I am of the opinion that this court has jurisdiction to
entertain and try the suit. Hence, I record my findings to point No.1 is negative and
point No.2 Notice of Motion is dismissed as per final order. I proceed to pass the
following order.
ORDER
1. Notice of Motion No.1460/14 is dismissed.
2. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 14/03/2020 City Civil Court, Gr. MUMBAI
Dictated on0 : 14/03/2020.
Transcribed on : 14/03/2020.
Signed on : 21/03/2020.
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.06.2020 at 2.55 a.m.
UPLOAD DATE AND TIME
JANHAVI S. CHAVAN
NAME OF STOP GAP
STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 14.03.2020
Judgment/order signed by P.O. on 21.03.2020
Judgment/order uploaded on 15.06.2020
Due to Covid-19 lockdown
the court was not functioning
and therefore order is
uploaded on 15.06.2020
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