Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1806/19 in Comm. Suit No. 737/21. 1 Order.
MHCC010051182019
Presented on : 21-05-2019
Registered on : 21-05-2019
Decided on : 28-08-2021
Duration : 2 years, 3 months, 7 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1806 OF 2019
IN
COMMERCIAL SUIT NO. 737 OF 2021
Padham Steel Enterprises Pvt. Ltd. ...Plaintiff
Versus
Ankuksh Patil and Another ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 28th AUGUST, 2021.
Mr. Anil Agarwal, Advocate for Plaintiff.
Mr. B.K.Bali, Advocate for Defendants.
ORDER
This notice of motion is filed by the defendants under
Order VII Rule 10 of the CPC for returning the plaint to the plaintiff for
presentation to the Court having jurisdiction. Perused notice of motion
with affidavit in support, reply given by the plaintiff and affidavit in
rejoinder submitted by defendant no.1. I have also gone through the
suit proceedings. Heard learned counsel Shri B.K.Bali for the
defendants and learned counsel Shri Anil Agarwal for the plaintiff.
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N/m No. 1806/19 in Comm. Suit No. 737/21. 2 Order.
2. It is contention of the defendants that they had placed
purchase orders on 26/10/2016 and 15/11/2016 to the plaintiff.
According to them, purchase orders contain the clause 'Subject to
Nashik Jurisdiction'. Learned counsel Shri B.K.Bali for the defendants
submitted that the plaintiff did not file the purchase order on record
with the plaint and he filed it for the first time while filing rejoinder to
summons for Judgment No. 323/2018. According to him, jurisdiction
of the court is governed by jurisdiction clause in the purchase order. He
further submitted that preliminary issue of jurisdiction has to be
decided before moving ahead in the suit. It is his contention that no
cause of action has arisen in the jurisdiction of this Court and the suit
cannot be entertained by this Court. He relied upon judgment of
Hon'ble Bombay High Court in Writ Petition No. 1299/2015 – Naran
Lala Pvt. Ltd. V/s. Ion Exchange (India) Ltd. Pronounced on
10/03/2015. He pointed out observations of Hon'ble Bombay High
Court in para 7 and submitted that absence of the words 'alone', 'only',
'exclusive jurisdiction' in the jurisdiction clause is not decisive and it
does not make any material difference in deciding the jurisdiction of a
court. He further submitted that jurisdiction clause in purchase order
will bind to parties to the suit. As purchase order contains the clause
conferring jurisdiction upon Nashik Court to deal with the matter, the
plaint is liable to be returned to the plaintiff for presentation to the
Court at Nashik.
3. On the contrary, learned counsel Shri Anil Agarwal for the
plaintiff submitted that the plaintiff filed invoices at page nos.14 to 19
of the plaint regarding the goods supplied to the defendants. He
pointed out jurisdiction clause printed at the bottom of these invoices
stating 'Subject to Mumbai Jurisdiction'. By placing reliance upon
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N/m No. 1806/19 in Comm. Suit No. 737/21. 3 Order.
jurisdiction clause in invoices, he submitted that this court has
jurisdiction to deal with the present suit. Learned counsel Shri Anil
Agarwal submitted that Summons for Judgment No. 323/2018 is taken
out in this suit and the defendants filed reply to it in December, 2018.
According to him, the defendants did not raise issue of jurisdiction
while filing reply to Summons for Judgment No. 323/2018. He further
submitted that the plaintiff filed rejoinder in Summons for Judgment
No. 323/2018 on 04/02/2019 and copies of purchase orders are placed
on record with it. Then, this notice of motion is taken out in May 2019.
By pointing out the chronology of events in the matter, learned counsel
Shri Anil Agarwal submitted that there is no reference of 'only' or
'exclusive' jurisdiction in invoices and therefore, the suit is maintainable
before this Court also. He further submitted that the defendant
received invoices and acted upon it and they did not dispute terms in
invoices. According to him, this Court has jurisdiction to deal with the
present suit in normal circumstances and there is no substance in the
notice of motion moved by the defendants. He further submitted that
citation relied upon by the defendant is not applicable to the case in
hand. He prayed to reject the notice of motion.
4. On perusal of the record and after considering rival
contentions, it appears that the defendants are relying upon jurisdiction
clause in the purchase order. On the contrary, the plaintiff is relying
upon the jurisdiction clause in invoices. Documents on record reveals
that the defendants had placed purchase orders to the plaintiff on
15/11/2016 and 26/10/2016. Purchase orders contain jurisdiction
clause as 'Subject to Nashik Jurisdiction'. In response to the said
purchase orders, the plaintiff supplied HR Plate (goods) to the
defendants as per invoices dated 26/10/2016, 15/11/2016 and
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N/m No. 1806/19 in Comm. Suit No. 737/21. 4 Order.
20/12/2016. The plaintiff filed the present suit for recovery of price of
goods supplied as per invoices with interest. As the plaintiff is claiming
to have sold and supplied goods in consonance with purchase orders
and raised invoices in respect of it, it implies that he agreed to bind
himself with terms and conditions in the purchase order. Had it not
been so, the plaintiff should have raised the objection to stipulations in
the purchase order before acting according to it. Purchase orders are
forming the basis of business dealings between the plaintiff and the
defendants. In short, the plaintiff was free to either act according to
purchase orders or to refuse to supply goods if he was not in agreement
with stipulations therein. The very genesis of transaction between the
parties is the purchase orders.
5. It is pertinent to note that the purchase orders were not
placed on record by the plaintiff with the suit. Details of dates of
purchase orders are also not pleaded in the plaint. Copies of purchase
orders are placed on record by the plaintiff for the first time on
04/02/2019 with his affidavit in rejoinder in Summons for Judgment
No. 323/2018.
6. Learned counsel Shri B.K.Bali for the defendants placed
reliance upon citation of Naran Lala Pvt. Ltd. (cited supra) in which
jurisdiction clause in the purchase order is discussed. It is written in the
purchase order 'Subject to Navsari Jurisdiction Only'. In this citation,
Hon'ble Bombay High Court relied upon observations of Hon'ble
Supreme Court in the case of Swastik Gases Pvt. Ltd. Vs. Indian Oil
Corporation Ltd., ((2013)9 Supreme Court Cases 32) in para 55 and
57 and made observation that the dispute had arisen between the
parties fell under the purchase orders which form a contract between
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N/m No. 1806/19 in Comm. Suit No. 737/21. 5 Order.
the parties. It is further observed in the said citation that absence of the
words 'alone', 'only', 'exclusive' jurisdiction in the jurisdiction clause is
neither decisive nor does it make any material difference in deciding the
jurisdiction of the court. Observations of Hon'ble Supreme Court in
Swastik Gases Pvt. Ltd. Vs. Indian Oil Corporation Ltd., ((2013)9
Supreme Court Cases 32) in para 55 and 57 reads as under :
“55. It will be seen from the above decisions that
except in A.B.C. Laminart (A.B.C. Laminart (P) Ltd.
V/s. A.P.Agencies ((1989)2 SCC 163)) where this
Court declined to exclude the jurisdiction of the
Courts in Salem, in all other similar cases an
inference was drawn (explicitly or implicitly) that the
parties intended the implementation of the exclusion
clause as it reads notwithstanding the absence of the
words “only”, “alone” or “exclusively” and the like.
The reason for this is quite obvious. The parties
would not have included the ouster clause in their
agreement were it not to carry any meaning at all.
The very fact that the ouster clause is included in the
agreement between the parties conveys their clear
intention to exclude the jurisdiction of Courts other
than those mentioned in the concerned clause.
Conversely, if the parties had intended that all Courts
where the cause of action or a part thereof had arisen
would continue to have jurisdiction over the dispute,
the exclusion clause would not have found a place in
the agreement between the parties.
57. For the reasons mentioned above, I agree with
my learned Brother that in the jurisdiction clause of
an agreement, the absence of words like “alone”,
“only”, “exclusive” or “exclusive jurisdiction” is
neither decisive nor does it make any material
difference in deciding the jurisdiction of a court. The
very existence of a jurisdiction clause in an
agreement makes the intention of the parties to an
agreement quite clear and it is not advisable to read
such a clause in the agreement like a statute. In the
present case, only the Courts in Kolkata had
jurisdiction to entertain the disputes between the
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N/m No. 1806/19 in Comm. Suit No. 737/21. 6 Order.
parties.”
7. In view of discussion relating to factual aspect of the
present case and legal position as discussed above, it is explicit that
parties to the present suit are bound by the stipulations in the purchase
orders. Purchase orders have specific clause regarding jurisdiction
conferring upon the Court at Nashik. It has impliedly excluded
jurisdiction of any other Court outside the jurisdiction of Nashik.
Though the transactions between the parties might have been taken
place at two places, the jurisdiction of the Court at one place of
transaction is impliedly barred by the jurisdiction clause in the purchase
order.
8. Learned counsel Shri Anil Agarwal has given much stress
on the aspect of filing of present notice of motion with delay. In the
present case, application in the form of summons for judgment is
pending for hearing. Matter has not reached the stage of framing of
issues. Further course to be followed in the matter depends upon the
fate of Summons for Judgment No. 323/2018. Therefore, objection to
jurisdiction is raised at the initial stage of the matter. Even otherwise
Order VII Rule 10 of the CPC authorizes the court to return the plaint at
any stage of the suit for presenting to the court in which the suit should
have been instituted. For all above discussion, the plaint is liable to be
returned to the plaintiff for presentation to the competent Court within
Nashik jurisdiction. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1806/2019 is allowed in terms of
prayer clause (a) and (b).
2. The plaint in Commercial Suit No. 737/2021 be returned to
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N/m No. 1806/19 in Comm. Suit No. 737/21. 7 Order.
the plaintiff for presentation to the competent Court within
Nashik jurisdiction under Order VII Rule 10 of the CPC.
3. As the plaint is going to be returned, Summons for
Judgment No. 323/2018 is disposed off.
4. N/m No. 1806/19 is disposed off.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 28/08/2021. Mumbai.
1. Dictated on : 28/08/2021.
2. Transcribed on : 28/08/2021.
3. Signed on : 28/08/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/08/2021. 5.02 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 28/08/2021.
Judgment/Order signed by P.O. on 28/08/2021.
Judgment/Order uploaded on 28/08/2021.
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