Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2481 OF 2019
(CNR NO.MHCC010068092019)
IN
S.C. SUIT NO. 2184 OF 2016
M/S. NEO IMPEX STAINLESS ]
PRIVATE LIMITED. ]
A private limited company ]
registered under Indian Companies ]
Act, 1956 carrying business at ]
Prabhu Bhavan, 1st Floor, ]
76, V.P. Road, Mumbai – 400 004. ]
Through Director Mr. Babulal ]
Jugraj Sanghvi ].. Plaintiff.
V/s.
BILT GRAPHICS PAPER PRODUCTS ]
LIMITED, A limited company ]
registered under Indian Companies ]
Act, 1956 having registered address ]
P.O. Ballarpur paper mills, District: ]
Chandrapur – 442901 (Maharashtra) ]..Defendant.
BILT GRAPHICS PAPER PRODUCTS ]
LIMITED, A limited company ]
registered under Indian Companies ]
Act, 1956 having registered address ]
P.O. Ballarpur paper mills, District: ]
Chandrapur – 442901 (Maharashtra) ]..Applicant.
Advocate Mr.Keshav B. Borhade for the Defendant.
Advocate Mr. Jagdish Nagar for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 21st SEPTEMBER 2021
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ORDER
The Notice of Motion is taken out by the defendant for
return of plaint for want of jurisdiction of this Court. The suit is
instituted for the relief of recovery of amount of Rs. 2,80,452/– along
with interest thereon at the rate of 24% per annum from the date of
institution of the suit till realisation of the total decreetal amount.
2. It is the case of defendant in his motion that the plaintiff
has concealed the relevant material facts and documents from this
court. Defendant had placed 11 purchase orders with the plaintiff. It
was agreed between the parties that all the legal actions arising out of
these purchase orders shall be subject to the jurisdiction of
Local/District/ High Court in the State where the material will be
supplied. Plaintiff did not state anything about these purchase orders in
the plaint. The defendant has referred clause B(26) of the purchase
order which states about the jurisdiction in case of any dispute. The
defendant has prayed for return of plaint for want of territorial
jurisdiction of this court.
3. Plaintiff has objected the notice of motion on the ground
that the terms and conditions in the purchase orders are not binding
upon the plaintiff, as after accepting the goods under invoices with the
terms and conditions appearing thereon, they are aggreed by the
defendant in respect of jurisdiction. Plaintiff has further stated that the
order was placed by the defendant at Mumbai. The defendant has
accepted the bills under which goods were issued with the terms and
conditions appearing thereon and goods were sold subject to the
jurisdiction of Mumbai as per clause9 of the terms and conditions of
the invoices. Therefore the present motion is not maintainable.
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4. Plaintiff has further stated that the suit is well within the
territorial jurisdiction of this Court. The defendant had agreed to make
payment at Mumbai. The plaintiff is carrying on business in Mumbai.
Therefore, the plaintiff has prayed for rejection of the motion.
5. I have heard both learned Advocates at length. I have gone
through the record of this Notice of Motion and the Summary Suit
No.375/2015.
6. Considering the pleadings and documents on record and
after hearing the submissions of both learned advocates, following
points arise for my determination and my findings to them are as stated
below for the following reasons.
Sr.
No
POINTS FINDINGS
1 Whether this Court has territorial jurisdiction
to try and decide the present suit?
In the
Negative
2 What Order ? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 4:
7. A very short question for determination arises in this
matter. Admittedly, in the purchase order placed by the defendant, it is
mentioned that the Court in whose local jurisdiction the material will be
supplied will be having jurisdiction to try and decide the dispute, if any.
The term in the invoice states that all the disputes will be subject to the
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Mumbai jurisdiction Court only. Therefore, now this Court will have to
decide as to which condition will prevail.
8. Admittedly, the parties cannot by agreement decide the
jurisdiction of any particular Court, if that court is not having
jurisdiction at all. However, if the jurisdiction lies with more than one
Court, then the parties may decide by agreement as to in whose
jurisdiction the dispute, if any arises would lie.
9. In the present matter, admittedly there is no written
contract. As the defendant placed the Purchase Order, it can be
presumed that the rate, quantity and quantity of the goods to be
supplied was already discussed between the parties. When the purchase
order was accepted by the defendant and goods were supplied, it
became a binding contract. The defendant while submitting the invoices
to the plaintiff, inserted his own term regarding the jurisdiction of the
Court which was contrary to the term regarding jurisdiction in the
Purchase Order. When the plaintiff supplied the material as per the
terms of purchase order, the same became binding on the defendant
with all the terms and conditions therein. Therefore, after supplying the
goods, the defendant can not turn back and impose any condition upon
the plaintiff. Another aspect of the matter is that if defendant tries to
impose any such condition upon the plaintiff, then it would amount to
conditional acceptance of the offer which is not permitted by law.
10. In this context the observations of the Hon’ble Delhi High
Court needs to be quoted as the facts in the present matter and the facts
before the Hon’ble Lordships were quite similar. In the case of
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Wollaque Ventilation & Conditioning Pvt Ltd. vs Sterling Tools Ltd.
reported in 2011 SCC OnLine Del 893, it is held that;
18. A reading of the aforesaid three conditions
together leaves no room for doubt that the purchase
order placed by the respondent was subject to the
conditions that the disputes, if any would be subject
to Faridabad jurisdiction and that the order placed
was subject to terms and conditions which include
the issue of jurisdiction also.
19. No doubt, the copies of the bills raised by the
appellants also contain a jurisdiction clause by
stating “All disputes are subject to Delhi
Jurisdiction”. However, this condition is again
subject to the acceptance of the purchase order.
Therefore once, the appellant agreed to supply the
goods in terms of the purchase order placed by the
respondent which provides that jurisdiction in case
of dispute would be that of the Faridabad Courts
only, mere mention of the term ‘subject to Delhi
jurisdiction’ in their invoices will not annul the terms
and conditions contained in the purchase order
which is the basis of accepting the purchase order by
the appellant.
In any event when both Delhi and Faridabad Courts
are competent, the appellant who agreed to supply
the goods to the respondent after accepting the
terms and conditions of the purchase order which
excludes the jurisdiction of Delhi Court, cannot have
any grievance. Thus, the observation made by the
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learned ADJ in having accepted the application
moved by the respondent under Order VII Rule 10
CPC does not suffer from any infirmity. The said
order is, therefore, maintained.
11. In view of all above discussion, I have come to the
conclusion that,
a) Defendant incorporated a term in the purchase order of
jurisdiction of the local Court in whose jurisdiction the
material is supplied.
b) In the present matter admittedly, the material is not
supplied within the territorial jurisdiction of this Court but
it is supplied in the territorial jurisdiction of the Taluka/
District Court at Chandrapur.
c) Defendant accepted the purchase order and delivered the
goods.
d) Defendant added a term of jurisdiction in the invoice and
stated that all the disputed shall be subject to the
jurisdiction of the Courts at Mumbai.
e) If the defendant was not consenting to the term of
jurisdiction in the purchase order, he should have got the
said issue resolved before delivery of goods.
f) Conditional acceptance of the offer by defendant is not
permissible.
12. In view of the above points, I have come to the conclusion
that this Court has no territorial jurisdiction to try and decide this suit
and hence, the plaint needs to be returned to the plaintiff for its
presentation before the proper Court. Accordingly, I answer point No. 1
in the affirmative and in answer to point No. 2, proceed to pass the
following order.
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O R D E R
1. Notice of Motion No. 2481 of 2019 is allowed
2. The office shall return the plaint to the plaintiff
as per rules for its presentation before the
appropriate Court.
3. No order as to costs.
4. Notice of Motion No.2481 of 2019 and Suit
No.2184/2016 stand disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 21.09.2021 Gr.Mumbai.
Dictated on : 21.09.2021
Typed on : 21.09.2021
Signed on : 21.09.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28.09.2021 AT 5.45 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
21/09/2021
Judgment/Order signed by P.O. on 21/09/2021
Judgment/Order uploaded on 21/09/2021
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