Final Order 1

Order Details: Notice of Motion
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MHCC010081662019 Presented on : 06082019
Registered on : 06082019
Decided on : 05012022
Duration : Y M D
02 03 29
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
NOTICE OF MOTION/2980/2019
IN
COMMERCIAL SUIT NO.935 OF 2021
(SHORT CAUSE SUIT NO.2267 OF 2018)
M/S. ARDH METALS AND ALLOYS PVT LTD
a Company incorporated under the
Companies Act having its office at 62/64,
Khetwadi Back Road, GF, JJ Mansion,
Mumbai400004. ..Plaintiff
VERSUS
M/S. UNIVERSAL HEAT EXCHANGERS LTD
A company having its registered office at
Pollachi Road, Malumachampatti Post,
Coimbatore641050, Tamilnadu. ..Defendant
__________________________________________________________
Ld. Advocate Mooman for plaintiff.
Ld. advocate Komal Singh for defendant.
__________________________________________________________
ORAL ORDER
(05/01/2022)
This Notice of Motion is taken out by defendant
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praying to reject the plaint under Order 7 Rule 11 of C.P.C. or in
the alternative praying to return the plaint under Order 7 Rule 10
of C.P.C.
Averments made in the affidavit of Notice of
Motion may be summarized as under:
2. This Court does not have territorial jurisdiction to try
and entertain the suit. Registered office of defendant is situated
at Coimbatore, Tamil Nadu State. Plaintiff supplied the goods on
the basis of purchase orders placed by defendant from it's
registered office. Transaction commenced on the basis of three
purchase orders placed by defendant. All the three purchase
orders contain a specific condition restricting the territorial
jurisdiction. As per clause No.5 of the purchase orders, if any
dispute arises to enforce rights of either party under purchase
orders , Courts at city Coimbatore shall have jurisdiction to try the
suit and the seller expressely agrees to submit to the jurisdiction
of such Court.
3. Plaintiff and defendant entered into an agreement to
restrict territorial jurisdiction. As per terms of the agreement,
Civil Court at Coimbatore alone has jurisdiction to try and
entertain the suit. Therefore, this Court has no jurisdiction to try
and entertain the suit.
By making these submissions, defendant prayed to
reject the plaint and in the alternative prayed to return the plaint.
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Plaintiff's reply
4. Plaintiff by filing reply affidavit strongly resisted the
Notice of Motion. It is submitted that present Notice of Motion is
filed in order to delay hearing of the suit. Suit is filed on the basis
of invoices. Goods were supplied to defendant from Mumbai on
the terms and conditions printed on the invoices. Invoices were
generated from Mumbai. They were issued from Mumbai. Goods
were supplied to defendant from Mumbai. The amounts
mentioned in the invoices were to be paid by defendant at
Mumbai. Part of cause of action took place within the jurisdiction
of this Court, therefore, this Court has jurisdiction to try and
entertain the suit.
5. As per the terms of the invoices, transactions were
subject to the jurisdiction of Mumbai for any dispute. The
invoices were supplied to defendant for payment. Defendant at
no point of time raised objection as regards to the point of
jurisdiction mentioned in the conditions printed on the invoices.
The condition in the purchase orders regarding submitting to the
jurisdiction of Coimbatore Court was not accepted by plaintiff at
any point of time. On the contrary, plaintiff by issuing invoices
specifically stated that transactions will be subject to Mumbai
jurisdiction. There is no dispute as regard to the purchase orders.
Therefore, condition mentioned in the purchase orders would
have no application. Suit is filed for amount mentioned in the
invoices.
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By making all these submissions, plaintiff contends
that Mumbai Civil Court has jurisdiction to entertain and try the
suit. Notice of Motion is devoid of any merits, hence liable to be
dismissed.
6. Defendant filed written submissions at Ex.8. I have
gone through the written submissions filed by defendant and also
heard Ld. advocate for plaintiff.
Submissions of defendant
7. It is submitted on behalf of defendant that plaintiff
has not filed on record purchase orders placed by defendant.
Defendant placed on record three purchase orders, upon which
transaction was commenced and concluded. The purchase orders
contain condition No.5 which provides if any dispute arises to
enforce rights of either party under purchase orders, shall only be
instituted in and tried by the Courts of ordinary civil jurisdiction
in the city of Coimbatore and the seller expressly agrees to submit
to the jurisdiction of such courts.
8. It is further submitted that plaintiff has accepted the
purchase orders and supplied the goods. Acceptance of purchase
orders amounts to a contract between buyer and seller. Contract
specifies jurisdiction of a Court at a particular place. Therefore,
said Court alone has jurisdiction to try and entertain the suit
excluding all other Courts.
9. To buttress these submissions, defendant placed
reliance upon following judicial pronouncements:
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(a) Swastik Gases Private Limited V/s Indian Oil Corporation
Limited, (2013) 9 Supreme Court Cases 32.
(b)New Moga Transport Co., Through its proprietor Krishanlal
Jhanwar V/s United India Insurance Co. Ltd. and others,
(2004) 4 Supreme Court Cases 677.
(c)Sandeep Polymers Private Limited V/s Bajaj Auto Ltd. and
others, 20074L.W.769.
Plaintiff's submissions
10. Ld. Counsel appearing for plaintiff contravened the
above submissions with following arguments:
(a) It is submitted that for deciding jurisdiction, Court
has to see avernments made in the plaint. Plaintiff in paragraph
Nos.15 and 16 of plaint specifically pleaded as to how cause of
action took place within the jurisdiction of this Court.
(b) Defendant filed Written Statement at Ex.5, but, it has
not denied avernments made in paragraph Nos. 15 and 16 of the
plaint. Thus, defendant also admitted that part of cause of action
took place within the jurisdiction of this Court.
(c) Plaintiff has not accepted the condition under the
purchase orders regarding jurisdiction. Purchase orders placed on
record do not bear signatures of plaintiff. Therefore, it cannot be
construed that plaintiff has accepted the terms and conditions of
purchase orders.
(d) Plaintiff supplied goods to defendant alongwith
invoices. The goods were delivered to defendant. Defendant
accepted goods alongwith invoices. Invoices contain a specific
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stipulation as "subject to Mumbai jurisdiction". Defendant
accepted the invoices. Defendant did not raise any dispute
regarding jurisdiction clause mentioned in the invoices, therefore
it can be said that defendant agreed for the jurisdiction of
Mumbai Court.
By making these submissions, plaintiff prayed to
dismiss the Notice of Motion.
11. Considered the submissions advanced on behalf of
both the sides. In the case of Swastik Gases Private Limited (cited
supra), Hon'ble Supreme Court held "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."
12. In the case of New Moga Transport Co., (cited supra),
Hon'ble Supreme Court held "By a long series of decisions it has
been held that where two courts or more have jurisdiction under
CPC to try a suit or proceedings, an agreement between the parties
that the dispute between them shall be tried in any one of such
courts is not contrary to public policy and in no way contravenes
Section 28 of the Indian Contract Act, 1872. Therefore, if on the
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facts of a given case more than one court has jurisdiction, parties by
their consent may limit the jurisdiction to one of the two courts. But
by an agreement parties cannot confer jurisdiction on a court which
otherwise does not have jurisdiction to deal with a matter."
13. In the case of Sandeep Polymers Private Limited
(cited supra), plaintiff therein was granted liberty to file suit at
Pune as there was agreement between parties regarding
submission to the Court at Pune.
14. Plaintiff claims that part of cause of action took place
within the jurisdiction of this Court. Defendant placed purchase
orders at Mumbai. Goods were supplied from Mumbai. Payment
was to be made at Mumbai. During the course of arguments, Ld.
Counsel for defendant do not dispute that part of cause of action
took place within the jurisdiction of this Court.
15. Where two or more Courts have jurisdiction under
CPC to try a suit or proceedings, an agreement between the
parties that the dispute between them shall be tried in any one of
such courts is not contrary to public policy.
16. Defendant claims that plaintiff has accepted purchase
orders and supplied the goods. As per terms of the purchase
orders, Civil Court at Coimbatore alone has jurisdiction to
entertain and try the suit.
17. It is not in dispute that plaintiff received the purchase
orders placed by defendant. It is also not in dispute that plaintiff
supplied the goods to defendant as per the purchase orders placed
by defendant. The point in dispute is as to whether parties agreed
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to confer jurisdiction to Coimbatore Court.
18. Plaintiff supplied the goods to defendant in
accordance with the purchase orders. However, it would be
contextually relevant to note that goods were supplied to
defendant alongwith invoices. Plaintiff has specifically pleaded
about the invoices raised against defendant. Invoices contain a
specific stipulation as "subject to Mumbai jurisdiction". As stated
above, the purchase orders contain a stipulation conferring
jurisdiction to Court at Coimbatore. In pursuance to these
purchase orders, plaintiff supplied goods to defendant, but, while
supplying the goods, plaintiff contend that dispute shall be subject
to Mumbai jurisdiction. Thus, it can not be inferred that parties
agree upon same thing and in the same sense. There is no
material on record to show that defendant denied this stipulation
in the invoices. At this stage, from the contents in the purchase
orders, it cannot be construed that plaintiff has agreed to confer
jurisdiction to Court at Coimbatore. As discussed above, part of
the cause of action took place at Mumbai. From the material
placed before the Court, it cannot be inferred that plaintiff and
defendant have agreed to confer jurisdiction to Civil Court at
Coimbatore. Therefore, this Court would have territorial
jurisdiction to entertain and try the suit. In the result, following
order:
ORDER
1. N/M No.2980/2019 is dismissed.
2. No order as to costs.
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3. N/M No.2980/2019 is disposed of accordingly.
05/01/2022 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 05/01/2022
Transcribed on : 05/01/2022
Signed on : 07/01/2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
07/01/22 at 02.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
05/01/22
Judgment and order signed by P.O. 05/01/22
Judgment/order uploaded on 07/01/22
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