Order 3

Order Details: Notice of Motion
Pdf Text: N/m No. 1019/21 in Comm. Suit No. 103/19. 1 Order.
MHCC010032062021
Presented on : 01-04-2021
Registered on : 01-04-2021
Decided on : 29-10-2021
Duration : 0 years, 6 months, 28 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1019 OF 2021
IN
COMMERCIAL SUIT NO. 103 OF 2019
M/s. Jai Ambe Manufacturers Ltd.
& Others ... Applicants/Defendants
IN THE MATTER BETWEEN:
M/S. Pacific Infotech Pvt. Ltd. ...Plaintiff
Versus
M/s. Jai Ambe Manufacturers Ltd.
& Others ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 29th OCTOBER, 2021.
Shri Amit Saple with Shri Chinmay Apte, Advocate for the plaintiff.
Shri Shashank Thatte with Ms. Vrushali Salvi and Shri Krishnan Iyar,
Advocate for the defendants.
ORDER
1. The defendants have taken out present notice of motion for
returning the plaint for want of territorial jurisdiction under Order VII
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N/m No. 1019/21 in Comm. Suit No. 103/19. 2 Order.
Rule 10 of the CPC. Perused notice of motion, affidavit in support of
defendant no.1, affidavit in reply and affidavit in rejoinder of defendant
no.1. I have also gone through proceedings of the suit, written
submission of the defendants and citation relied by the plaintiff. Heard
learned counsel Shri Shashank Thatte for the defendants and learned
counsel Shri Amit Saple for the plaintiff.
2. Learned counsel Shri Shashank Thatte for the defendants
submitted that the plaintiff has relied upon address of the plaintiff and
defendants in the agreement executed between the parties on
04/12/2014. He further submitted that address of the defendant is of
Masjid, Mumbai in title clause of the plaint and in the said agreement. It
is his submission that the suit is admitted on 13/08/2019. Letter of the
defendant addressed to the plaintiff on 01/06/2015 (page 25 of the
plaint) clearly states address of the defendant as Mira Road (East),
Thane. According to him, the said letter is referred in para 4 of the
plaint. The plaintiff's representative collected the said letter from the
address of Mira Road of the defendants. He further submitted that the
agreement is executed on 04/12/2014 and the suit ought to have been
filed on or before 03/12/2017. The suit is filed in February 2019. It is
his contention that place of the plaintiff's operation is immaterial. It is
stated in para 10 of the plaint that the agreement dated 04/12/2014
stands substituted by the agreement dated 01/06/2015. With the help
of this part of the pleading in the plaint, learned counsel Shri Shashank
Thatte submitted that the plaintiff has admitted the letter dated
01/06/2015. He relied upon Section 20 of the CPC. He further
submitted that the letters addressed by the plaintiff to the defendants
are sent on address of Mira Road. He prayed that this Court has no
territorial jurisdiction and the suit may be returned to the plaintiff for
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N/m No. 1019/21 in Comm. Suit No. 103/19. 3 Order.
presentation before the competent Court.
3. On the contrary, learned counsel Shri Amit Saple submitted
that the agreement dated 04/12/2014 reveals that both sides had
address of Mumbai at the time of execution of the agreement and
therefore, this Court has jurisdiction. The defendants had approached
the plaintiff for job contract. The plaintiff performed his part of the
contract and thereafter, the defendants shifted to other address. He
relied upon Section 20(c) of the CPC and submitted that cause of action
has arisen within the jurisdiction of this Court. He has placed reliance
upon Aglowmed Ltd. V/s. Shell Life Sciences Pvt. Ltd. 2013(3)
Mh.L.J. 648 in which Hon'ble Bombay High Court has observed at the
end of para 16 as under :
“16. ….......For it is when the cause of action for
the institution of the suit can be regarded as having
occurred within the jurisdiction of more than one
Court that parties can by their agreement confer
jurisdiction on one of those Courts exclusively. In
the present case, the contract was entered into and
concluded at Mumbai. Partpayments were made
by the Appellant to the respondent at Mumbai.
The Appellant placed a purchase order upon the
respondent through its own local office at Mumbai.
Goods were supplied by the respondent from
Vadodara to the Appellant at Roorkee. Absolutely
no part of the cause of action has occurred within
the territorial jurisdiction of the Courts at Patna.
In such a situation and having regard to the settled
principle of law which emerges from the judgments
of the Supreme Court noted above, the exclusionary
clause will have no effect whatsoever.”
4. Learned counsel Shri Amit Saple further submitted that
issue of limitation was raised by the defendant earlier in Notice of
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N/m No. 1019/21 in Comm. Suit No. 103/19. 4 Order.
Motion No. 522/2020 and it is dismissed by the Court. According to
him, order in Notice of Motion No. 522/2020 has attained finality and
now from the defendant is prevented from advancing arguments on the
point of limitation in the present notice of motion proceeding. He
prayed for dismissal of notice of motion.
5. Considering rival contention, it is clear that the defendants
had sent letter dated 01/06/2015 to the plaintiff in which he had
ensured the plaintiff to pay Rs.29.96 Lakhs. This letter is signed by the
Director of the defendant company. On the basis of this admission in
the said letter, the plaintiff has pleaded in para 10 of the plaint that the
original agreement dated 04/12/2014 stands substituted by the
agreement dated 01/06/2016. In short, letter of the defendants is
being treated as an agreement by the plaintiff. It is pertinent to note
that the said letter does not bear signature of the plaintiff's
representative. Contents in the said letter are in the form of admission
of the liability to pay a certain amount to the plaintiff in respect of the
plaintiff's acts done in consonance with the agreement dated
04/12/2014. In short, the plaintiff has filed the present suit for the
purpose of recovery of dues in respect of work done by him in
accordance with the agreement dated 04/12/2014. Therefore, the
agreement dated 04/12/2014 governs rights and liabilities of the
parties to the suit. The agreement dated 04/12/2014 states addresses
of both sides within the jurisdiction of this Court. After the execution of
the agreement dated 04/12/2014, the defendants started showing some
other address of Mira Road (East), Thane on their letterheads and the
plaintiff continued to have correspondence with the defendants on the
said address. Such sort of subsequent change in the address of the
defendants would not change the position of the details in the
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N/m No. 1019/21 in Comm. Suit No. 103/19. 5 Order.
agreement in order to take away the jurisdiction of this Court and to
confer jurisdiction upon any other court. If this way of interpretation of
the legal provisions is allowed to be followed, the parties may change
their addresses subsequent to the execution of the agreement in order
to harass the party to the agreement who has performed his part of
agreement. Basic document forming genesis of the transaction between
the parties is required to be considered while dealing with aspect of
territorial jurisdiction. Point of limitation is decided in Notice of Motion
No. 522/2020 and it is not required to be reappreciated while deciding
the present notice of motion. For all these reasons, there is no
substance in the notice of motion taken out by the defendants and it is
liable to be dismissed. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1019/2021 is dismissed.
2. Proceeding of N/m No. 1019/21 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 29/10/2021. Mumbai.
1. Dictated online on : 29/10/2021.
2. Signed on : 29/10/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1019/21 in Comm. Suit No. 103/19. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29/10/2021. 5.07 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 29/10/2021.
Judgment/Order signed by P.O. on 29/10/2021.
Judgment/Order uploaded on 29/10/2021.
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