Final Order 1

Order Details: Copy of Judgment
Pdf Text: Order in Notice of Motion 1
No 1530 of 2023.
MHCC010041812023
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.1530 of 2023.
IN
S. C. SUIT NO.03 of 2021.
Mr. Umesh Gupta. . ...Defendant/
Applicant.
In the matter of :-
ROOFSOL ENERGY PVT. LTD. ..Plaintiff
V/s.
Mr. Umesh Gupta. ..Defendant.
Appearances :-
Adv. Pooja Shivtarkar for plaintiff.
Adv. Surbhi Soni for defendant.
Coram : U. C. Deshmukh.
C.R. No.: 59.
Date : 20/03/2024.
ORAL ORDER
This Notice of Motion is moved by the defendant under Order VII
Rule 11A read with Section 151 of the Code of Civil Procedure, 1908
(In short ‘the Code’) to reject the plaint.
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Order in Notice of Motion 2
No 1530 of 2023.
2 The defendant/applicant contends that there is no cause of
action arisen in Mumbai nor he reside in Mumbai. Therefore, this Court
has no jurisdiction under Sections 19 or 20 of the Code to try and
entertain the suit. The suit being without cause of action, therefore, the
plaint is liable to be rejected.
3. It is specific submission of the defendant that civil Judge at
Jaipur would have jurisdiction to entertain the suit. The defendant has
instituted Civil Suit No. 633 of 2020 before said Court against the
plaintiff. Thus, the suit is also hit by principle of Res-sub-judicata.
Therefore, prayed to reject the plaint.
4. In reply the plaintiff contends that this is suit for
compensation for wrong done by the defendant against the plaintiff.
Hence, therefore in view of the Section 19 of the Code, this court has
jurisdiction. The defendant was appointed by the plaintiff is office at
Mumbai. The address of the defendant at Rajasthan is given for the
convenience of the defendant only. The defendant was directed to
report the director of the plaintiff at Mumbai.
5. It is also contention of the plaintiff that the principle of Res-
sub-Judice is applicable only when two or more cases are pending filed
in between the same parties on same subject. The issues involved in the
present suit and in the suit filed by the defendant against the plaintiff is
quite different. Therefore, such principle is not applicable. The office of
the plaintiff’s Company is at Mumbai and defendant was appointed
from the said registered office of the plaintiff at Mumbai. Therefore,
cause of action has arisen within the jurisdiction of this Court. Thus,
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Order in Notice of Motion 3
No 1530 of 2023.
this court has a jurisdiction. Hence, prayed to reject the Notice of
Motion.
6. Ld. advocate for the defendant argued in consonance with
the contention of the Notice of Motion. It is vehemently argued that
mere fact that the defendant was directed to report at Mumbai is ipso-
facto will not bestow the jurisdiction over this Court. The reply given by
the plaintiff was not signed by the plaintiff. Hence, it cannot be taken
into consideration. The plaint is instituted on 12.10.2020 whereas the
plaintiff has stated in plaint that cause of action has arisen on
29.11.2022 i.e. after the plaint is lodged. Therefore, there is no cause of
action against the defendant. Hence, prayed to reject the plaint.
7. It is submission for the Ld. advocate for plaintiff that the
defendant was directed to report to the office of the plaintiff at Mumbai.
His interview was taken at Mumbai. Hence, this Court has jurisdiction.
In reply, the advocate for the defendant submit that Clause (ii) of Exh 2
attached to the plaint clearly states that the defendant was appointed to
do work in Rajasthan. Therefore, there is no cause of action arisen in
the limits of the Court.
8. The defendant has placed reliance upon decision of the
Hon'ble Supreme Court in Abdul Gafur and Another v/s State of
Uttarakhand and Others (2008) 10 SCC 97 wherein the Hon'ble Apex
Court has observed that to invoke the provision of Order VII Rule 11 the
Code, the contents of the plaint needs to be taken into consideration.
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Order in Notice of Motion 4
No 1530 of 2023.
9. The defendant also relied upon the decision of the Hon’ble
Supreme Court in South East Asia Shipping Co. Ltd V/s. Nav Bharat
Enterprises Pvt. Ltd., (1996) 3 SCC 443 wherein the Hon'ble Supreme
the Hon'ble Apex Court has dealt with the term cause of action and
observed that when contract was executed in Bombay of which
performance was also to be done within the jurisdiction of the Hon’ble
Bombay High Court then merely because Bank Guarantee was executed
at Delhi and transmitted for performance at Bombay does not constitute
a cause of action to give rise to lay the suit within the Jurisdiction of
Hon'ble Delhi High Court.
10. The defendant has also relied upon the decision of A.B.C.
Laminart Pvt. Ltd and Another V/s. A.P. Agencies, Salem (1989) 2 SCC
163 wherein the Hon'ble Apex Court has dealt with the exclusion of
jurisdiction by the agreement excuted by the parties to the lis. The ratio
laid down in A.B.C (supra) is not helpful to the defendant because it is
not the case of either party that there was an agreement to confer the
jurisdiction upon either court on which the there would have been
jurisdiction to entertain the suit.
11. In the light of dictum of Hon'ble Supreme Court in Abdul
Gafoor (supra) it has to see whether this Court has jurisdiction to
entertain the suit. Therefore, reference to the plaint is inevitable. The
plaintiff has come with specific case that it is Private Limited Company.
The plaintiff has a office at Mumbai and at Jaipur. The plaintiff after
interviewing of the defendant, appointed him on 05.06.2019 as the
Regional Sales Manager on probation for the period of six months from
the date of appointment and work in Rajasthan and report to the
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Order in Notice of Motion 5
No 1530 of 2023.
director and any other person as may be indicated by the plaintiff.
The plaintiff further contends that the appointment letter dated
05.06.2019 is marked as Exh.A attached to the plaint was served upon
the defendant through email. It was specifically mentioned in the
appointment letter at Exh. A that either party may serve notice to other
party to terminate the service. It was also mentioned therein that during
the probation period, the defendant’s notice period would be one
month. It has also reserved plaintiff's right to accept or not defendant's
resignation if the circumstance so warrant.
12. The defendant was involved in the project pertaining to i)
Govindam Prime Food Pvt.Ltd ii) Shree Fab Filaments Pvt. Ltd and iii)
Bhagirath Diary Private Limited. The plaintiff by letter dt 03.08.2019
has informed the defendant as to sale targets. However, after service of
five months the defendant abruptly and voluntarily resigned from the
his post as Regional Sales Manager on 29.11.2019 and on the same day
sent a mail to plaintiff's office. It is also specific contention of the
plaintiff that during the aforesaid period of service of the defendant his
behavior was revolting and did not function as an employee.
Consequently, the plaintiff lost aforesaid three projects of
Rs.60,00,000/- Therefore, the defendant is liable to pay Rs.5,00,000/-
as a damages to the plaintiff for loss in business. Hence this suit.
13. There is no different opinion as to the contents of
appointment letter at Exh. A. The plaintiff does not deny that the
defendant was appointed to do work in Rajasthan. However, it is its
contention that the defendant was appointed through its office at
Mumbai and the he was directed to report to the said office. Therefore,
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Order in Notice of Motion 6
No 1530 of 2023.
this court has jurisdiction. The plaintiff has claimed an amount of
Rs.5,00,000/- against the damages sustained to it due to lack of
coordination and abrupt resignation given by the defendant which
resulted into the loss of three project which were started by the plaintiff.
The plaintiff filed copy of email sent by the defendant wherein the
defendant has mentioned that he is handling over laptop to the Jaipur
office. There is also reference of project by name Govindham Prime
Food Pvt Ltd. firm of which office is situated in Jodhpur and Bikaner. It
is not the case of the plaintiff that aforesaid three projects have to be
executed within the jurisdiction of this Court. Therefore, the project
against for which the plaintiff has sustained the loss and has come
before the Court were to be executed and completed in Rajasthan and
not in the Maharashtra or not particularly within the jurisdiction of this
Court.
14 Section 19 of Code specifically deal with the suit pertains to
the compensation on account of wrong done by the person against the
person or to movable property. The Court in which such wrong was
done or the Court in which the defendant carries the business or
personally work for gain shall have also jurisdiction to entertain such
suit. It is admitted fact that the defendant is resident of Rajasthan. So
far as the claim of the plaintiff’s for compensation is concerned a cause
of action has arisen in Rajsthan and not in Maharashtra, therefore, in
view of the Section 19 of the Code, this court has no jurisdiction to
entertain the suit
15. in view of the dictum of Hon'ble Supreme Court in South
East Asia(supra), it can be said that the mere fact that the defendant
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Order in Notice of Motion 7
No 1530 of 2023.
directed to report to the office of the plaintiff at Mumbai ifso-fact will
not suffice to say that this Court has jurisdiction. The defendant was
appointed to do work Rajasthan. The suit is filed for the compensation
an account for loss sustained in project to be carried in Rajasthan. It
means the cause of action arisen in the Rajasthan and not in the
Maharashtra and particularly not within the jurisdiction of this Court.
Thus, it is abundantly clear that the suit is not maintainable before this
Court.
16. Before part with the order, it is apt to mention that through
the plaintiff has mentioned date of cause of action in the plaint which
happens to be the date coming after the suit is instituted. It cannot be
said that there is no cause. It is settled principle of law that a cause of
action is bundle of facts. The plaintiff has instituted the suit for recovery
of compensation because it suffered the loss in projects to be executed
in the Rajasthan due to act of the defendant. The plaintiff alleges that
the during the tenure of service of the defendant, the aforesaid three
projects had to be completed. However, due to non cooperation by the
defendant, it sustained the loss. Therefore, there is cause of action
against the defendant, but it has not arisen within the jurisdiction of
this Court. In such circumstances, in-stead of rejection of plaint, it is just
return the plaint to the plaintiff to submit before the competent Court at
Rajasthan. In the result following order is passed
ORDER
1. Notice of Motion 1530 of 2023 is partly allowed as under :
2. The plaint be returned to the plaintiff within a month to
present it before competent Civil Court at Jaipur, on or presented
before 10th June, 2024.
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No 1530 of 2023.
3. Thus, Notice of Motion No. 1530 of 2023 along with suit
is also disposed off accordingly.
(Dictated and Pronounced in Open Court).
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:21.03.2024 Greater Bombay (CR 59).
Declared on : 21.03.2024
Dictated on : 21.03.2024
Transcribed on : 26.03.2024
Checked on : 30.04.2024.
Signed on :
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