Karnataka High Court
M/S S And T Global Engineering Services ... vs M/S Microgenesis Cadsoft Private ... on 9 March, 2023
Bench: G.Narendar, M.G.S. Kamal
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COMAP No. 71 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE G.NARENDAR
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
COMMERCIAL APPEAL NO. 71 OF 2023
BETWEEN:
1. M/S S AND T GLOBAL ENGINEERING
SERVICES PRIVATE LIMITED
NO 47, 11TH MAIN, 3RD CROSS
ANDHRA LAYOUT
ANANTAPUR
BENGALURU 560064
Digitally (REPRESENTED BY ITS AUTHORISED SIGNATORY)
signed by
ROOPA R U ...APPELLANT
Location:
High Court (BY SRI. MADHUKAR S., ADVOCATE)
of
Karnataka
AND:
1. M/S MICROGENESIS CADSOFT
PRIVATE LIMITED
NO 543, 9TH CROSS, SARAKKI
JP NAGAR III PHASE
BENGALURU - 560 078
(REPRESENTED BY ITS AUTHORISED SIGNATORY).
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COMAP No. 71 of 2023
2. M/S S AND T GLOBAL ENGINEERING
SERVICES PRIVATE LIMITED
NO 106, I FLOOR, TIDEL PARK
COIMBATORE LTD
CIVIL AERODROME POST
COIMBATORE - 641 014
(REPRESENTED BY ITS AUTHORISED SIGNATORY.
3. M/S SERVICES AND TRADE CO. L.L.C (S AND T)
HAVING ITS OFFICE AT P.O. BOX 832
POSTAL CODE 112
RUWI, SULTANATE OF OMAN
REPRESENTED BY ITS GROUP CHAIRMAN
BRIG.GEN (RETD)
SULAIMAN A1 ADAWI.
...RESPONDENTS
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1-A) OF THE COMMERCIAL COURT ACT 2015, PRAYING TO
GRAND FOLLOWING RELIEF IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIOUS. 1. SET ASIDE THE INTERIM
ORDER DATED 17.12.2022 ON INTERIM APPLICATION NO. VI
PASSED BY THE LEARNED LXXXVIII ADDITIONAL CITY CIVIL
COURT AND SESSIONS JUDGE/COMMERCIAL COURT AT
BENGALURU. WHICH IS HEREWITH PRODUCED AS
ANNEXURE-A. 2. CALL FOR RECORDS OF THE LEARNED TRIAL
COURT IN COM O S NO. 214/2021.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
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COMAP No. 71 of 2023
JUDGMENT
This appeal is filed against the order 17.12.2022 rejecting an application in I.A.No.6 filed in Com.O.S.No.214/2021 on the file of LXXXVIII Additional City Civil Court and Sessions Judge/Commercial Court, Bengaluru.
2. The above suit is filed by the respondent No.1/plaintiff against the appellant/defendant Nos.2 and respondent Nos.2 and 3 for the relief of Judgment and decree directing defendants to pay Rs.90,75,000/- being value of product supplied in terms of purchase order dated 26.10.2019 and tax invoice dated 26.10.2019 for total value of Rs.75,00,000/- with interest @ 21% p.a. from 26.10.2019 to 28.10.2020 and for future interest.
3. It is the case of the plaintiff that it is an authorized distributor and partner of M/s. Autodesk dealing in the Autodesk products in India. That the defendants had expressed their desire to purchase 30 -4- COMAP No. 71 of 2023 numbers of Architecture, Engineering and Construction, Collection IC Non-Language Specific products of aforesaid M/s. Autodesk and the plaintiff had supplied the said products on 26.10.2019. That the defendants despite receipt of the products have failed and neglected to make the payment. Hence, the suit.
4. Defendant No.2/appellant filed the above application dated 08.11.2022 under Section 151 of CPC seeking dismissal of the above suit for want of jurisdiction. In the affidavit accompanying the above application while admitting the transaction as claimed by the plaintiff, it is contended that the plaintiff and defendant No.1 had concluded the contract by executing a purchase order dated 26.11.2019 and in terms of the said purchase order, plaintiff and defendant No.1 had unequivocally accepted and submitted to the jurisdiction of court at Coimbatore. Therefore it is contended in view of the said binding agreement plaintiff ought to have filed the suit in the Court at Coimbatore and not at Bengaluru. -5- COMAP No. 71 of 2023 Hence, sought for dismissal of the suit for want of jurisdiction.
5. Plaintiff had filed objections to aforesaid application contending that the defendants had expressed their desire to purchase 30 numbers Architecture, Engineering, Construction, Collection, IC Non-Language Specific products. The plaintiff had issued quotation for supply of license on 24.10.2019 for a sum of Rs.92,60,640/-. The plaintiff company is a platinum re- seller for Autodesk products in India having its registered office at Bengaluru and it is mandatory condition of all sales that the disputes, if any is subject to jurisdiction of the courts at Bengaluru and that the defendants were also aware of the same and the same has been mentioned in the Proposal and Autodesk Contract Form which the defendants had agreed at the time of purchase of the product. It is further contended that the defendant No.1 had also filed a similar application which was rejected by holding that the Commercial Court in Bangalore has -6- COMAP No. 71 of 2023 jurisdiction and the present application was filed by the defendant No.2 only to protract the matter.
6. The Commercial Court by the impugned order rejected the above application filed by the defendant No.2 by imposing cost of Rs.5,000/-. Being aggrieved by the same, appellant/defendant No.2 is before this Court.
7. Learned counsel for the appellant/ defendant No.2 reiterating the grounds urged in the memorandum of appeal contended that purchase order produced at as Annexure-1 to the plaint specifically provides a clause under the heading GOVERNING LAW which reads as under;
"Governing Law: This P.O. shall be governed by the construed in accordance with the substantive laws of India and any action arising out of this P.O. shall be within the jurisdiction of Courts in Coimbatore."
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8. Referring to the aforesaid clause, learned counsel submits that when the two or more courts have jurisdiction over the subject matter of the suit and agreement between the parties that the dispute between them shall be tried in one such court is binding on both the parties and same cannot be retracted. Thus, he submits it was the duty on the part of the Commercial Court to have appreciated the aforesaid clause in the purchase order ousting its jurisdiction.
9. Heard. Perused the records.
10. On a query by this Court regarding existence of any agreement between the parties preceding the purchase order, learned counsel pleaded ignorance.
11. It is necessary at this juncture to note that as seen in the impugned order defendant No.1 /respondent No.2 had on earlier occasion filed similar application which has been rejected by the Commercial Court and the said order has remained unchallenged. Apparently, -8- COMAP No. 71 of 2023 appellant/defendant No.2 who was placed ex-parte had subsequently appeared through his counsel and without even filing the written statement has presented the above application seeking ouster of jurisdiction of the Commercial court.
12. The Commercial Court has referred to a document at Annexure-3 namely, proposal for Autodesk 2020 Subscription License exchanged between the parties quoting the requirement and its cost. In that there is a document under the heading Commercial Terms and Conditions (at page no. 55 of the appeal memo), which contains a clause regarding jurisdiction which reads as under;
"Any disputes in connection with this quotation, software supply or subscription will be resolved under the jurisdiction of Bangalore courts only".
13. Section 20 of the Code of Civil Procedure provides that suits other than those mention under Sections 17, 18 and 19 to be instituted where the -9- COMAP No. 71 of 2023 defendant reside or the cause of action arises. In the instant case, there is no dispute that the appellant/defendant No.2 is having his office at Bengaluru as shown in the cause title and he carrying on the business at Bangalore.
14. Thus, both in terms of the aforesaid Contract Conditions which the parties have entered into as well as in terms of Section 20 of the CPC, it is the courts at Bengaluru are having jurisdiction to resolve the dispute between the parties.
15. As already noted similar application filed by the defendant No.1 having been rejected by the commercial court and same having attained finality, there is no justification appellant /defendant No.2 coming up with similar application which has rightly been rejected by the commercial Court by imposing cost. The appellant has made out no grounds warranting interference.
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COMAP No. 71 of 2023
16. For the aforesaid reasons, we do not find any infirmity or illegality in the order passed by the Commercial Court. Hence, appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE RU