Interim Order 1

Order Details: Other
Pdf Text: 1 Preliminary Issue In
Comm. Suit No.4782020
MHCC010048182020
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
PRELIMINARY ISSUE
IN
COMMERCIAL SUIT No.478 OF 2020
Eureka Forbes Ltd. …PLAINTIFF
VERSUS
Watertech Engineer Pvt. Ltd. …DEFENDANT
Shri.Rohan R. Sonawane, learned advocate for plaintiff.
Shri.Dipesh U. Siroya, learned advocate for defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
O R D E R
(Delivered on 16/03/2023)
This court had framed issue on 28/11/2022. Issue No.6 is
about the territorial jurisdiction of this court and therefore, the said
issue is taken as preliminary issue.
2. It is case of plaintiff that it is unlisted limited company
having its office at Lower Parel, Mumbai. It is in the business of
manufacturing and sale of water purifiers, vacuum cleaners and other
domestic and industrial appliances. Defendant is private limited
company having its office at Kolkata. It is involved in the business of
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Comm. Suit No.4782020
engineering and water pumping solutions. It is authorized dealer of
industrial water pump manufacturers and supplies water pumps and
allied equipment and assists in testing erection and commission of
industrial water pumps for its prospective customers.
3. During the course of business plaintiff entered into
commercial transaction with its client Danieli India Limited (DIL) for
supply of industrial water pumps to NMVC Limited ( a Govt. of India
Enterprises) at Nagarnar, Bastar, Chhattishgarh (Project Site). As per
the mandate of DIL, the plaintiff was required in supply water pumps
and components. At the relevant time the defendant was authorized
dealer of WPIL and KSB manufactured pumps and hence, plaintiff
chosen the defendant to procure said pumps for supply to DIL at project
site. Plaintiff approached the defendant for supply of pumps and
components. Defendant represented that it is capable to supply pumps
and components at the project site as well as assist in testing, erection
and commissioning of supplied pumps.
4. Plaintiff has issued two purchase orders to the defendant
dtd.21/05/2013 (PO1) for supply of various industrial pumps of
Rs.2,75,05,728/ and further amended purchase order dtd.07/03/2016
for worth of Rs.2,40,42,100/. Another purchase order dtd.08/06/2013
(PO2) for six additional turbine pumps worth of Rs.14,47,489/. The
water pumps ordered to be supplied by defendant at the project site.
According to plaintiff defendant delayed in supplying the water pumps
and other articles. Plaintiff released 90% of total consideration to the
defendant under PO1 and PO2. Defendant delayed delivery of pumps at
the project site beyond 15/12/2013. Defendant could not procure the
KSB make pumps. In order to procure pumps at the site at the request
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Comm. Suit No.4782020
of defendant, the plaintiff has modified the payment terms and
conditions. The plaintiff had to face loss of reputation due to the
incompetence of defendant. Plaintiff through several emails
communicated to the defendant about the details of material and
services that the defendant failed to provide and deliver at the project
site.
5. According to plaintiff its office is at Mumbai within
territory of jurisdiction of this court. Purchase orders were signed and
issued from plaintiff’s Mumbai office and all the communication with
the defendant pursuant to the purchase order were undertaken from the
same office of the plaintiff. The email correspondence also taken place
from the plaintiff’s Mumbai office. The meetings between plaintiff and
defendant were held at the same office.
6. Defendant contended in written statement that entire cause
of action arose and completed in Kolkata. Plaintiff placed the order of
supply of material with the defendant who is carrying his business from
Kolkata and having registered office at Kolkata. The said material/goods
has to be delivered in Chhattisgarh. Therefore, no part of contract took
place in Mumbai and hence, this court has no territorial jurisdiction.
7. Heard learned counsel of both the parties. Learned counsel
of defendant relied on following case laws
i) ABC Laminart Pvt. Ltd. V/s. A.P. Agencies Salem : AIR
1989 SC 1239 wherein Hon’ble Supreme Court observed and
held that were there may be two or more competent course
which can entertain a suit consequent upon a part of the cause of
action having arisen there within, if the parties to the contract
agreed to vest jurisdiction in one such court to try the dispute
which might arise as between themselves the agreement would
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be valid. If such a contract is clear, unambiguous and explicit and
not vague it is not hit by Sec.23 and 28 of the Contract Act. This
cannot be understood as parties contracting against the Statute.
Mercantile Law and practice permit such agreements.
ii) Hanil Era Textiles Ltd. V/s. Puromatic Filters (P) Ltd.:
MANU/SC/ 0348/2004, wherein held that it is not open to the
parties to confer by their agreement jurisdiction on a court which
does not possess under the code. But where two course or more
have under the Code of Civil Procedure jurisdiction to try a suit
or a proceeding, and agreement between the parties that the
dispute between them shall be tried in one of such courts is not
contrary to publish policy.
8. I have gone through the documents filed by plaintiff with
plaint. The purchase order dtd.31/05/2013 issued by plaintiff to the
defendant indicates that the vendor may send their invoices and its
enclosures at the Pune office of plaintiff. Purchase order
dtd.09/11/2019 shows the address of vendor is Gaziabad, India and
billing and delivery address of Turbhe Nagari, Mumbai. The said
purchase order shows general terms of purchase on the last page. Term
No.8 indicates, “all sums payable by the buyer to the seller or the
seller to the buyer under the contract shall be due and payable at
the office of the buyer. The parties hereby agree that any suit to
enforce the right of either party under this purchase order shall
only be instituted in and tried by the course of ordinary civil
jurisdiction in Greater Mumbai and seller expressly agrees to
submit to the jurisdiction of such court”.
9. The invoices raised by defendant are at page No.42 to 59
with the plaint. At the bottom of every invoice there is clause “subject
to Kolkata jurisdiction only”.
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Comm. Suit No.4782020
10. Therefore, in view of ratio laid down in aforesaid case law
the agreement regarding the vesting of jurisdiction as per term
mentioned in purchase order is valid. Defendant has acted upon the
said purchase order. In view of above documentary evidence, it
becomes clear that the cause of action arise at Mumbai, Kolkata and
Nagarnar, Bastar, Chhattishgarh. Therefore, this court has territorial
jurisdiction to try and entertain this suit. Hence, I pass following order.
ORDER
Preliminary Issue No.6 pertaining to territorial jurisdiction
answer in affirmative.
Date : 16/03/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32.
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Direct dictated on : 16/03/2023.
Checked on : 16/03/2023.
Signed on : 16/03/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16/03/2023 Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 16/03/2023
Order signed by P.O. on 16/03/2023
Order uploaded on 16/03/2023
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