Final Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 1001/22 in Comm. Suit No. 64/19. 1 Order.
MHCC010028232022
Presented on : 16-03-2022
Registered on : 16-03-2022
Decided on : 07-04-2022
Duration : 0 years, 0 months, 22 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1001 OF 2022
IN
COMMERCIAL SUIT NO. 64 OF 2019
M/s. Starlog Enterprises Limited ...Applicant
[Original Defendant]
IN THE MATTER OF:
Navin Chaganbhai Patel ...Plaintiff
Versus
M/s. Starlog Enterprises Limited ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 7th APRIL, 2022.
Shri Akash Menon a/w Shri Vaibhav Sharma, Advocates for the
defendant.
Shri Mukesh Pabari, Advocate for the plaintiff.
ORDER
1. The defendant has taken out present notice of motion for
returning the plaint under Order VII Rule 10 of the Civil Procedure
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N/m No. 1001/22 in Comm. Suit No. 64/19. 2 Order.
Code (for short, 'the Code') for presentation to the Court which has the
requisite jurisdiction to hear and dispose off this commercial suit.
Perused notice of motion and affidavit in reply filed by the plaintiff. I
have gone through the suit proceeding. Heard learned counsel Akash
Menon for the defendant and learned counsel Mukesh Pabari for the
plaintiff.
2. Learned counsel Akash Menon for the defendant referred
consignment notes / lorry receipts annexed with the plaint and also
lorry receipts (Exh.17) filed with list of documents (Exh.11) by the
plaintiff. According to him, the plaintiff had transported the crawler
crane from Essar Hazira to L & T Hazira as per purchase order (Exh.16)
of the defendant and issued lorry receipts. He further submitted that at
the bottom of lorry receipts it is mentioned, “Subject to Surat
Jurisdiction”. He further submitted that the plaintiff has not placed on
record second pages of lorry receipts. He has filed these second pages
of lorry receipts with this notice of motion. These second pages of lorry
receipts contain jurisdiction clause at sr.no.6 stating that the Court in
Surat City alone shall have jurisdiction in respect of all claims and
matters arising under the consignment of the goods entrusted transport.
With the help of above documents, he submitted that the Court at Surat
is having jurisdiction. He also relied upon citation of New Moga
Transport Co. Vs. United India Insurance Co. Ltd. and others (2004)
4 Supreme Court Cases 677 in which aspect of jurisdiction clause in
consignment note is considered and it is observed in para 17 that once
the parties bind themselves as such it is not open for them to choose
different jurisdiction. He prayed that notice of motion may be allowed
and plaint may be returned in absence of jurisdiction to this Court.
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N/m No. 1001/22 in Comm. Suit No. 64/19. 3 Order.
3. On the other hand, learned counsel Shri Mukesh Pabari for
the plaintiff submitted that the defendant had sent the purchase order
by email from its office in Mumbai and it is received by the plaintiff at
Surat. There is no reference of jurisdiction clause in purchase order.
He also relied upon Section 19 of the Code to state that this Court has
jurisdiction. He further relied upon Section 20(a) and (c) of the Code
to state that cause of action has arisen within the jurisdiction of this
Court and the defendant is also having its office within the jurisdiction
of this Court and therefore, this Court is having jurisdiction. He prayed
for dismissal of notice of motion.
4. After considering rival submissions and material on record,
it appears that the plaintiff transported goods as per purchase order of
the defendant and issued lorry receipts. There is jurisdiction clause at
the bottom of lorry receipts (Exh.17) stating, “Subject to Surat
Jurisdiction”. There is no reference of jurisdiction clause in the
purchase order (Exh.16). Purchase order and lorry receipts form the
agreement between the parties. For this reason, contents in lorry
receipts can be read for the purpose of determining jurisdiction of the
Court. Considering nature of transaction and provisions of law, the
cause of action has arisen in part within the jurisdiction of this Court
and also within the jurisdiction of Surat Court. Exclusive jurisdiction
clause in the lorry receipt has impliedly excluded jurisdiction of any
other Court outside the jurisdiction of Surat. 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 lorry receipts. With this regard,
observations of Hon'ble Supreme Court in Swastik Gases Pvt. Ltd. Vs.
Indian Oil Corporation Ltd., ((2013)9 Supreme Court Cases 32) in
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N/m No. 1001/22 in Comm. Suit No. 64/19. 4 Order.
para 55 and 57 are relevant and the same are reproduced below :
“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
parties.”
5. Similarly, aspect of jurisdiction clause in the consignment
note is considered by Hon'ble Supreme Court in the case of New Moga
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N/m No. 1001/22 in Comm. Suit No. 64/19. 5 Order.
Transport Co. (cited supra) and it squarely applies to the case in hand.
Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1001/2022 is made absolute in terms
of prayer clause (a).
2. The plaint in Commercial Suit No. 64/2019 be returned to
the plaintiff for presentation to the competent Court within
Surat jurisdiction under Order VII Rule 10 of the CPC.
3. N/m No. 1001/2022 is disposed off.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 07/04/2022. Mumbai.
1. Dictated online on : 07/04/2022.
2. Signed on : 07/04/2022.
3. 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
07/04/2022. 4.40 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 07/04/2022.
Judgment/Order signed by P.O. on 07/04/2022.
Judgment/Order uploaded on 07/04/2022.
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