Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2219/21 in Comm. Suit No. 64/2020. 1 Order.
MHCC010072832021
Presented on : 24-09-2021
Registered on : 24-09-2021
Decided on : 20-12-2021
Duration : 0 years, 2 months, 26 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2219 OF 2021
IN
COMMERCIAL SUIT NO. 64 OF 2020
M/s. Hafele India Pvt. Ltd. ...Plaintiff
Versus
M/s. A2 Interiors Products Pvt. Ltd. (OPC)
and Others ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 20th DECEMBER, 2021.
Shri R.M.Pande, Advocate for the plaintiff.
Shri Jayesh Mestry, Advocate for defendants no.1 to 3.
ORDER
1. 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 and affidavit in reply filed by the plaintiff. I
have also gone through the suit proceedings. Heard learned counsel
Shri Jayesh Mestry for the defendants and learned counsel Shri
R.M.Pande for the plaintiff.
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N/m No. 2219/21 in Comm. Suit No. 64/2020. 2 Order.
2. Learned counsel Shri Jayesh Mestry for the defendants
submitted that the plaintiff averted jurisdiction of the court in para 20
of the plaint. The plaintiff has suppressed very important aspect of the
jurisdiction agreed between the parties in the plaint. He referred
purchase order filed at page no.23 of the plaint and submitted that it is
stated at the bottom of purchase order that any dispute will be resolved
in Kolkata jurisdiction only. He further submitted that Section 92 of the
Evidence Act provides that written contract excludes oral agreement. He
also relied upon citation of Swastik Gases P. Ltd. Vs. Indian Oil
Corporation Ltd. reported in (2013) 9 SCC 32. He pointed out para
16 and 28 in the citation of Swastik and submitted that terms of the
agreement will prevail while determining jurisdiction of the court. He
prayed that notice of motion may be allowed and the plaint may be
returned.
3. Learned counsel Shri R.M.Pande for the plaintiff submitted
that Mr. Jatin Pasricha has no authority to affirm and file the present
notice of motion. He submitted that minutes of meeting are not
mentioned in the authority letter. The person, who is not legally
appointed, cannot appear in the proceeding. He further submitted that
the suit can be filed where the contract is made and where the cause of
action arose. Cause of action arose at Mumbai. The defendants made
part payment at Mumbai and the cheque was dishonoured at Mumbai.
By pointing out these events taken place in Mumbai, he submitted that
this court has jurisdiction to try the present suit. He further submitted
that citation of Swastik Gases P. Ltd. (supra) is relating to arbitration
and it is not applicable to the case in hand. He further referred para 3
and 6 in the affidavit filed in support of notice of motion and submitted
that the purchase orders were placed in Mumbai office for the sale of
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N/m No. 2219/21 in Comm. Suit No. 64/2020. 3 Order.
the plaintiff. According to him, Kolkata and Mumbai Courts are having
jurisdiction. He also submitted that invoices does not confer jurisdiction
upon the court. He relied upon citation of Sreenivasa Pulvarising Vs.
Jai Glass & Chemicals Pvt. Ltd. AIR 1985 Cal. 74 in which Section
20(c) of the CPC is discussed. He prayed for dismissal of 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 transactions and developments taken place in Mumbai to state
that this court has jurisdiction. Purchase orders (Exh.D and E filed with
the plaint) have jurisdiction clause stating about Kolkata jurisdiction
only. Invoices (Exh.F, H, I, L, N and O filed with the plaint) are silent in
respect of jurisdiction of the court. All these invoices are raised from
the Kolkata office of the plaintiff. These invoices mentioned address of
the plaintiff as well as the defendants within jurisdiction of Kolkata. If
these invoices are read with purchase orders, the court within
jurisdiction of Kolkata can try the suit in view of Section 20(a) of the
CPC.
5. As the plaintiff is claiming to have sold and supplied goods
in consonance with purchase orders and raised invoices in respect of the
same, 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 orders
before acting according to the same. 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
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N/m No. 2219/21 in Comm. Suit No. 64/2020. 4 Order.
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.
6. Hon'ble Supreme Court in the case of Swastik Gases Pvt.
Ltd. Vs. Indian Oil Corporation Ltd., ((2013)9 Supreme Court Cases
32) made observations in para 55 and 57 that the dispute had arisen
between the parties fell under the purchase orders which form a
contract between 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
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N/m No. 2219/21 in Comm. Suit No. 64/2020. 5 Order.
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.”
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 Kolkata. It has impliedly excluded
jurisdiction of any other Court outside the jurisdiction of Kolkata.
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
orders. The representative of the defendants filed notice of motion on
the basis of authority letter given to him and it can be considered at this
stage of the matter. For all above discussion, the plaint is liable to be
returned to the plaintiff for presentation to the competent Court within
Kolkata jurisdiction. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 2219/2021 is allowed in terms of
prayer clause (a).
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N/m No. 2219/21 in Comm. Suit No. 64/2020. 6 Order.
2. The plaint in Commercial Suit No. 64/2020 be returned to
the plaintiff for presentation to the competent Court within
Kolkata jurisdiction under Order VII Rule 10 of the CPC.
3. The proceeding of N/m No. 2219/21 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 20/12/2021. Mumbai.
1. Dictated online on : 20/12/2021.
2. Checked on : 21/12/2021.
3. Signed on : 21/12/2021.
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
21/12/2021. 3.28 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 20/12/2021.
Judgment/Order signed by P.O. on 21/12/2021.
Judgment/Order uploaded on 21/12/2021.
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