Calcutta High Court
Tanaya Industries Pvt Ltd vs Gcm & Ors on 8 June, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.1637 of 2015
With
CS No.100 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
TANAYA INDUSTRIES PVT LTD
Versus
GCM & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 8th June, 2015.
Appearance:
Ms. Rina Chatterjee, Adv.
The Court: This is an application for revocation of leave under Clause 12 of the letters patent. The applicants are from the republic of Korea. The main ground for revocation of leave under Clause 12 of the letters patent appears to be forum inconvenience. It is submitted that no part of the cause of action has arisen within the jurisdiction of this Court and in any event having regard to the averments made in the plaint the appropriate Court at Korea would be the natural forum where the trial should take place. It is submitted that the suit is based on a breach of contract. The formation of contract, its performance and breach thereof are the essential factors required to be taken into consideration for deciding the jurisdiction of the Court. It is submitted that the contract was not concluded at Calcutta and the place of performance is also not at Calcutta. It is at Haldia where the goods were required to be discharged under the contract by the defendants.2
The Court assumes jurisdiction under Clause 12 of the letters patent inter alia if a part of the execution has arisen within the jurisdiction of this Court. There is a specific averment in paragraph 8 of the plaint that the contract was concluded within. That itself is sufficient to attract the jurisdiction of this Court. The defendants would submit that goods were to be offloaded at Haldia. If this submission is accepted as one of the grounds for the suit not to be tried by the Calcutta High Court then appropriate Court at Midnapur would have the jurisdiction which would belie its claim of forum inconvenience. The issue of jurisdiction cannot be decided in a summary manner. The rejection of this application however would not debar the defendants from raising the plea of jurisdiction at the trial.
The issue of lack of jurisdiction cannot be decided at this stage without proper evidence being recorded since prima facie it appears that this Court has jurisdiction on the basis of the averments made in the plaint.
It is made clear that I have not gone into the merits of this application. All objections including the objection that no part of the cause of action has arisen within the jurisdiction are kept open.
Ms. Rina Chatterjee, Advocate ANS and Associates waives service of the writ of summons upon the defendant nos.1 and 2. The plaintiff shall serve a copy of the plaint upon Ms. Chatterjee, Advocate who shall accept the same on behalf of the said defendants nos.1 and 2 and shall enter appearance within a week from the date of service of such writ of summons. The defendants nos.1 and 2 shall file their written statements within a period of five weeks thereafter. The plaintiff however, shall formally lodge the writ of summons with the department concerned to comply with the procedural formality.
In view thereof, this application is rejected.3
Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) sp/