Calcutta High Court
Madhai Das vs Tata Engineering And Locomotive Co. ... on 8 April, 2005
Equivalent citations: 2005(3)CHN252
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This first miscellaneous appeal is at the instance of a plaintiff in a suit for declaration and injunction and is directed against Order No. 21 dated 5th April, 2003 passed by the learned Judge, 5th Bench, City Civil Court at Calcutta in Title Suit No. 203 of 2002 thereby allowing an application under Order 7 Rule 10 read with Section 151 of the Code of Civil Procedure filed by the defendants and returning the plaint to the plaintiff for presentation to the Court having jurisdiction.
2. The plaintiff field the aforesaid suit thereby praying for the following relief:
"(a) For a declaration that the plaintiff is the absolute owner of the motor vehicle No. WB-03B-0750 and the plaintiff is entitled to the No Objection Certificate and relevant Forms from the defendant No. 1 upon payment of the entire loan including interest of Rs. 4,87,751/-and the defendants have no right to seize the vehicle.
(b) For a declaration that the blank and printed papers and documents bearing the left thumb impression of the plaintiff and lying in possession, control and custody of the defendants are of no use, nonexistent, shams and colourable and not binding upon the plaintiff.
(c) For delivery up and cancellation of all the papers and documents referred to in prayer (b) above.
(d) For perpetual Injunction restraining the defendants, their men, agents and assigns from using in any way the papers and documents referred to in prayer (b) above.
(e) For permanent injunction restraining the defendants, their men, agents and/or assigns from selling and/or disposing off the aforesaid motor vehicle prejudicial to the interest of the plaintiff.
(f) Temporary injunction in terms of Prayer (e) above.
(g) Mandatory injunction directing the defendants to release the motor vehicle No. WB-03B-0705 forthwith in favour of the plaintiff.
(h) For other reliefs that the plaintiff may be found entitled to in law and in equity."
3. After entering appearance in the said suit, the defendants filed an application under Order 7 Rule 10 read with Section 151 of the Code of Civil Procedure thereby praying for an order for return of the plaint to the plaintiff for being presented to the proper Court at Mumbai where, according to the defendants, the suit ought to have been filed. In the said application, the defendant contended that Courts at Mumbai are the only competent Courts to entertain, try and determine the present suit and that the Courts at Calcutta do not have any jurisdiction to entertain the suit. In support of such contention, the defendant relied upon various clauses in the agreement alleged to have been entered into between the parties which indicated that the office of the defendant was in Mumbai, the payment of the price of the vehicles purchased by the defendant for giving the same on hire-purchase was made in Mumbai and the payment from the hirer by way of either the initial payment or the monthly payment was also received at Mumbai and accordingly, the parties elected to exclude all other Courts that those of Mumbai to try suits in respect of any claim or dispute arising out or under the said agreement.
4. By relying upon the aforesaid clauses in the alleged agreement, the defendants prayed for return of the plaint.
5. The aforesaid prayer was opposed by the plaintiff thereby contending that on the basis of the averments made in the plaint the suit was very much triable before the City Civil Court at Calcutta and further, the plaintiff having prayed for declaration that the alleged agreement was a sham transaction, the conditions mentioned in any of the clauses appearing in the said agreement cannot exclude the jurisdiction of the Court.
6. The learned Trial Judge, as indicated above, by the order impugned, has held that in view of existence of specific clause in the agreement by which the parties decided to elect forum by selecting Courts at Mumbai in exclusion of others, the Court at Calcutta had no jurisdiction to entertain the suit.
7. Being dissatisfied, the plaintiff has come up with the present appeal.
8. Mr. Chakraborty, the learned advocate appearing on behalf of the plaintiff, has strenuously contended that the learned Trial Judge erred in law in relying upon the clauses of the agreement, which itself has been challenged in the suit, for the purpose of deciding whether the Court had jurisdiction to entertain the suit. Mr. Chakraborty submits that the defendants not having filed any written statement in the suit, at this stage, the Court was required to confine its attention to the averments made in the plaint and on the basis of the averments made in the plaint, if the suit appeared to have been filed in the wrong forum, the Court could return the plaint; but otherwise, Mr. Chakraborty continues, before filing of written statement and without framing of issues, the Court could not decide the question of selection of forum by the alleged agreement of the parties when the plaintiff has taken specific plea that he put thumb impression on the unfilled up papers without knowing the contents of the same.
9. The aforesaid contention of Mr. Chakraborty is seriously disputed by Mr. Banerjee, learned senior advocate, appearing on behalf of the defendants. According to Mr. Banerjee, the plaintiff having admitted the signature on the deed of agreement and in the said deed of agreement there being specific clause excluding the jurisdiction of all other Courts than that of Mumbai, the learned Trial Judge rightly returned the plaint for presentation before the agreed forum. Mr. Banerjee contends that if the parties by agreement decide to exclude jurisdiction of all other Court than a particular one where a part of cause of action has arisen, in such a situation, such plea should be taken at the earliest stage even before filing of written statement and there is no bar in deciding such question on the basis of materials on record. Mr. Banerjee contends that the Court is competent to invoke inherent power for deciding the question of election of forum even before framing of issues. Mr. Banerjee further contends that Order 14 Rule 2 of the Code does stand in the way of a Court to decide this type of an issue as preliminary issue even before submission of the written statement. In support of such contention Mr. Banerjee relies upon the decision of the Supreme Court in the case of Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. . Mr. Banerjee further relies upon the decision of the Court of Appeal in the case of United Dominions Trust Ltd. v. Western B.S. Romanay reported in 1976(1) QB 513.
10. After hearing the learned counsel for the parties and after going through the aforesaid materials on record we are of the view that in this case the learned Trial Judge acted illegally and with material irregularity in returning the plaint by relying upon the alleged agreement between the parties.
11. There is no dispute that under Order 7 Rule 10 of the Code of Civil Procedure, a Court can at any stage of the suit return the plaint for presentation before the Court where it ought to have been filed. Therefore, the Court can even at very initial stage pass such order if it appears from the averments made in the plaint itself that the suit is liable to be presented before any other Court. In this case, however, if we accept the averments made in the plaint to be true then the City Civil Court at Calcutta has definitely jurisdiction to entertain the present suit.
12. Similarly, the Court can at final hearing of the suit also return the plaint if it appears from the evidence adduced by parties that the suit ought to have been preferred before any other Court. In the case before us, the defendants before filing written statement have contended by filing an application that the parties by mutual agreement decided to exclude jurisdiction of all other Courts than the Courts at Mumbai for entertaining the dispute involved in this suit. The plaintiff having disputed the legality of the agreement itself and having prayed for declaration that the said agreement was vitiated by fraud, such plea is required to be decided at the time of trial after taking evidence if such plea is denied in the written statement. In view of the provision contained in Order 14 Rule 2 of the Code of Civil Procedure, there is no scope of deciding this type of disputed question of fact even as preliminary issue. Therefore, when defendants have not yet filed written statement, the learned Trial Judge, at this stage, could not rely upon the alleged agreement between the parties and on the basis of such agreement could not ask the plaintiff to approach the Court at Mumbai. Ultimately, at the time of hearing of the suit if such defence is taken and on evidence the Court arrives at the conclusion that parties agreed to approach the Courts at Mumbai only and that the agreement was lawful, it could pass such order; but at this stage, there was no scope of simply relying upon the terms of alleged agreement when the legality of the same itself has been challenged in the suit and written statement has not been filed and the alleged agreement has not even been proved in accordance with law. When there is specific bar created by Code itself in hearing this type of a disputed question of fact as preliminary issue, the Court cannot invoke inherent power to overcome that provision of the Code.
13. We now propose to deal with the decisions cited by Mr. Banerjee.
14. In the case of Hanil Era Textiles Ltd. (supra), the Supreme Court was dealing with an appeal directed against the order of the High Court by which an appeal preferred by the appellant against order of rejection of the appellant's application under Order 7 Rule 10 of the Code of Civil Procedure passed by the Additional District Judge, Delhi was dismissed. The appellant, before filing written statement, filed an application under Section 20 read with Order 7 Rule 10 and Section 151 of the Code of Civil Procedure before the Trial Court praying that plaint should be returned for presentation before the Court having territorial jurisdiction in which the suit ought to have been filed. The main plea taken in the application was that as per clause 7 of local purchase order dated 31st May, 1995, any legal proceedings arising out of the order should be the subject to jurisdiction of the Courts in Bombay and the plaintiff having accepted the terms and conditions of the said local purchase order, it was bound by the said clause. The learned Additional District Judge, Delhi, held that in the absence of the written statement filed by the defendant, he had to decide the controversy on the basis of the allegations made in the plaint and especially, when the plaintiff had asserted that the goods were delivered to the defendant at Delhi on the basis of Form CT-3, the Court at Delhi had territorial jurisdiction. The appeal preferred by the appellant against the said order was dismissed by High Court. Against such order, the appellant moved the Apex Court.
15. While deciding such an appeal, the Supreme Court held that according to the averments made in the plaint, the appellant sent Form CT-3 and thereafter the plaintiff despatched the goods from its factory as per the direction of the defendant. By referring to the averments made in the plaint, the Supreme Court observed that those averments indicated that offer to purchase the goods was made by defendant at Bombay and the same was accepted by the plaintiffs branch office at Bombay. Further, the advance payment was also made by defendant at Bombay and thus, a part of cause of action accrued at Bombay. Thereafter, the Supreme Court relied upon clause 17 of the purchase order and held that in view of such clause all other Courts except the Courts at Bombay were excluded and therefore, set aside the order passed by the High Court and the Trial Court. The plaint filed by the respondent was ordered to be returned for presentation before the competent Court at Bombay.
16. From the reported judgment, it does not appear whether clause 17 of the purchase order was referred to in the body of pliant either by quoting the same or by annexing the document but it appears that the Apex Court was satisfied that the plaintiff did not dispute the said agreement and as such, directed return of the plaint.
17. In our view, the said decision cannot be said to be a precedent for a proposition of law that even without filing written statement, a defendant can insist on taking into consideration documents which are not part of pleadings of the plaintiff. Moreover, we are not in a position to ascertain how appeal could be filed against the order of the learned Trial Judge dismissing an application under Order 7 Rule 10 of the Code when under Order 43 Rule 1 of the Code, only an order allowing an application under Order 7 Rule 10 is appealable but not an order rejecting the same. Be that as it may, in the said decision, the agreement was at least admitted by plaintiff as it appears from the said judgment but in the case before us, the alleged agreement has been disputed as a sham transaction by the plaintiff and at the same time it is asserted that thumb impression of the plaintiff was taken on a blank document. Therefore, the said decision cannot be applicable for the purpose of deciding the question whether a Court is entitled to decide a disputed question of fact before filing of written statement at the initial stage. It is now a settled law that a decision is an authority for the proposition of law actually decided in that decision but the same cannot be relied upon as a precedent for a proposition of law which can be logically inferred from the decision.
18. In the other decision, in the case of United Dominions Trust Ltd. (supra), the Court of Appeal was considering a case where onus of proof of non est factum was found to have been discharged in the fact of the said case where a party signed a form in blank and alleged that the Dealers inserted false figures in the said document. The Appeal Court was also considering the duty of care of a person signing blank documents. In our view, the aforesaid decision will be useful when the issue involved in the suit will be decided after taking evidence and at that stage, Court will consider whether the plaintiff had discharged his burden when he put his thumb impression on the blank form; but the said decision cannot be put forward as a precedent in support of the proposition that a Court can decide such disputed question of fact at the initial stage in violation of Order 14 Rule 2 of the Code of Civil Procedure.
19. We, thus, find that the aforesaid decisions in no way support the plea taken by Mr. Banerjee. We, therefore, find that the learned Trial Judge erred in law in returning the plaint to the plaintiff for presentation before appropriate forum before deciding the issues in accordance with the provisions of Code of Civil Procedure. We, accordingly, set aside the order impugned and direct the learned Trial Court to decide such issue at the time of hearing along with other issues involved in the suit in terms of Order 14 of the Code of Civil Procedure if such plea is taken in the written statement. The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.
Rajendra Nath Sinha, J.
20. I agree.