Gujarat High Court
General Manager ( Power ) vs Swaminarayan Vijay Carry Trade Pvt Ltd on 25 June, 2024
NEUTRAL CITATION
C/SCA/10678/2018 ORDER DATED: 25/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10678 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10678 of 2018
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GENERAL MANAGER ( POWER ) & ANR.
Versus
SWAMINARAYAN VIJAY CARRY TRADE PVT LTD & ANR.
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Appearance:
MR. JAIMIN R DAVE(7022) for the Petitioner(s) No. 1,2
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/06/2024
ORAL ORDER
1. By way of this petition under Article 227 of the Constitution of India, the petitioners have prayed for following relief:-
"5.a) Quash and set aside the order dated 30th March 2018 passed by Principal Senior Civil Judge, Bhuj, Kutchh below Exhibit-17 passed in Special Civil Suit No. 13 of 2012 pending before Principal Civil Judge, Bhuj-Kutch at ANNEXURE-A;
5.b) Direct the Ld. Principal Civil Judge, Bhuj to return the plaint of Special Civil Suit No. 13 of 2012 to the plaintiff for presentation before the appropriate Court;"
2. Brief facts of the case are as under:-
Page 1 of 5 Downloaded on : Tue Jun 25 21:56:05 IST 2024NEUTRAL CITATION C/SCA/10678/2018 ORDER DATED: 25/06/2024 undefined 2.1 The Respondent No. 1 herein instituted Special Civil Suit No. 13 of 2012 before the Principal Senior Civil Judge, Bhuj-
Kutch for recovery of Rs. 1,65,76,901/- and permanent injunction against invocation of Bank Guarantee of Rs. 4,28,971/ in relation to work order dated 27.09.2010 issued pursuant to Tender No. PP/2009-10-61.
2.2 The Petitioners herein were served with the notice of the said suit on or around first week of February, 2012. Thereafter, on 15.02.2012, Petitioner filed an application under Order VII Rule 10 for return of the plaint and/or Order VII Rule 11 for rejection of plaint inter alia on the ground that, both the contracts under which dispute is sought to be raised by Respondent No. 1 herein, specifically provides that any dispute arising out of the Contract shall be subject to Ahmedabad Jurisdiction only. The said application came to be exhibited as Exh-17.
2.3 At this point of time it is pertinent to note that admittedly Tender No. GMDC/PP/AKRI/003T and Work order dated 27.09.2010 issued pursuant to Tender No. PP/2009-10-61 contains a clause whereby exclusive jurisdiction is conferred upon Ahmedabad Court for resolution of any dispute arising under respective contracts.
2.4 The application filed below Exhibit-17 was objected by Respondent No. 1 vide reply dated 23.02.2012, inter alia, on the grounds that term of the Work Order and Contract was upto 15.08.2011 and therefore the clause contained therein with respect to exclusive jurisdiction of Ahmedabad Courts is not Page 2 of 5 Downloaded on : Tue Jun 25 21:56:05 IST 2024 NEUTRAL CITATION C/SCA/10678/2018 ORDER DATED: 25/06/2024 undefined binding on it.
2.5 That, after hearing the parties, 30.03.2018, Ld. Principal Senior vide order dated Civil Judge, Bhuj rejected the application filed under Order VII Rule 10 below exhibit 17 the ground that such clause on providing exclusive jurisdiction to particular Court is void under Section 28 of the Contract Act, 1872. Hence, this petition.
3. Heard learned advocate Mr. Jaimin Dave for the petitioners and learned advocate Mr. Mehul Sharad Shah for the respondent No.1.
4. Learned advocate for the petitioners would submit that Special Civil Suit No.13 of 2012 was filed before the Court of learned Principal Senior Civil Judge, Bhuj by the respondent No.1 herein for the relief of declaration and permanent injunction claiming that the petitioners be directed to pay back Rs.1,65,76,901/- along with 12% interest with the consequential relief that the petitioners be restrained from encashing the Bank Guarantee. The petitioners preferred an application initially under Order 7 Rule 10 of the CPC questioning the jurisdiction of the civil Court at Bhuj to decide the issue on the ground that the cause of action of the suit has arisen from the contract (page 32) executed between the parties. It is further the case of the petitioners that in clause 13 of the contract, only the civil Court at Ahmedabad has jurisdiction to decide the issue. It is further the case of the petitioners that no other Court can assume jurisdiction except the civil Court at Ahmedabad and thus, the learned trial Court has committed serious error in reading the Page 3 of 5 Downloaded on : Tue Jun 25 21:56:05 IST 2024 NEUTRAL CITATION C/SCA/10678/2018 ORDER DATED: 25/06/2024 undefined itner se binding conditions between the parties.
4.1 In support of the submission, learned advocate for the petitioners has relied upon the decision of this Court in case of IOC Ltd. Vs. M/s Pragat Gas Service and another reported in 1993(1) GLH 1334.
4.2 Upon such submission, Learned advocate for the petitioners requests to allow this petition and return the plaint under Order 7 Rule 10 of the CPC.
5. On the other hand, learned advocate Mr. Mehul Sharad Shah for the respondent No.1 came out with two fold submissions. Firstly, he would submit that the GMDC itself has filed Special Summary Suit No.1 of 2014 before the learned Principal Senior Civil Judge, Bhuj for recovery of the service tax against the very respondents and the said suit has arisen from the very contract and since the GMDC itself has chosen and decide that the Civil Court at Bhuj is the Court having territorial jurisdiction to decide the matter, the suit filed by the petitioners almost on the same cause of action can also be entertained and filed by the Civil Court at Bhuj. He would further submit that the cause of action for filing the suit arose within the territorial jurisdiction of the civil Court at Bhuj as the work pursuant to the impugned contract (page 32) has been carried out within the limits of the civil Court at Bhuj. Therefore, it is submitted to dismiss the petition.
5.1 Another submission is made by learned advocate Mr. Shah is that the suit is at fag end; both the sides have addressed their Page 4 of 5 Downloaded on : Tue Jun 25 21:56:05 IST 2024 NEUTRAL CITATION C/SCA/10678/2018 ORDER DATED: 25/06/2024 undefined arguments before the learned trial Court; petitioner GMDC has actively participated in the suit and therefore, the question does not arise to return the plaint under Order 7 Rule 10 of the CPC.
6. Having heard learned advocates for the respective parties, at the outset, it could be noticed that the petitioner GMDC, which quarreled about the jurisdiction of the civil Court at Bhuj to entertain the Special Civil Suit No.13 of 2012 on the ground that clause 13 of the contract does permit to file the suit only at Ahmedabad, has chosen to file the suit for recovery of the service tax against the respondents at civil Court, Bhuj. The cause of action of Special Summary Suit No.1 of 2014 is also pleaded upon the contract (page 32) executed between the parties. In this way, principle of estoppel applies against present petitioners. They cannot blow hot and cold in same place. On one hand, they are saying that the suit based upon the contract between the parties filed by them is maintainable at civil Court, Bhuj, but civil suit filed by the other side. In nutshell, in a limited supervisory jurisdiction under Article 227 of the Constitution of India, this Court finds no merit in the petition and the same stands dismissed. Notice discharged.
7. Consequently connected civil application also stands disposed of.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 5 of 5 Downloaded on : Tue Jun 25 21:56:05 IST 2024