Al Rahim Constructions vs Laxmi Steel Tubesowner Taherabanu M ... on 18 November, 2021

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Gujarat High Court

Al Rahim Constructions vs Laxmi Steel Tubesowner Taherabanu M ... on 18 November, 2021

Bench: Vipul M. Pancholi

     C/CRA/484/2021                                         ORDER DATED: 18/11/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CIVIL REVISION APPLICATION NO.                        484 of 2021

=======================================================
                 AL RAHIM CONSTRUCTIONS
                         Versus
     LAXMI STEEL TUBESOWNER TAHERABANU M CONTRACTOR
=======================================================
Appearance:
MR MASOOM K SHAH(6516) for the Applicant(s) No. 1,2
NEHA M SHAH(9218) for the Applicant(s) No. 1,2
 for the Opponent(s) No. 1
=======================================================

 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                              Date : 18/11/2021
                                  ORAL ORDER

1. This Civil Revision Application is filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code" for short), wherein the applicants have challenged the order dated 15.04.2021 passed by the Principal Sr. Civil Judge & ACJM, Ankleshwar in Special Civil Suit No.44/2018, whereby the application, Exh.23 filed by the applicants - original defendants under Order 7, Rule 11(d) of the Code came to be dismissed.

2. Heard learned advocate, Ms. Neha Shah for the applicants.

3. It is submitted by learned advocate for the applicants that the present respondent has filed Special Civil Suit No.44/2018 before the court of Principal Senior Civil Judge, Ankleshwar for recovery of amount of Rs.5,90,086.35 from the applicants - original defendants with interest @ 18% p.a. It is submitted that the present Page 1 of 10 Downloaded on : Wed Jan 12 02:04:26 IST 2022 C/CRA/484/2021 ORDER DATED: 18/11/2021 applicants - original defendants filed written statement before the trial court and the trial court has framed the issues and, thereafter, the present applicants - original defendants filed an application, Exh.23 under Order 7, Rule 11(d) of the Code and prayed that the plaint filed by the original plaintiff be rejected, however, the trial court, vide impugned order dated 15.04.2021, rejected the said application and, therefore, the present application has been filed.

4. Learned advocate for the applicants has mainly contended that as per the tax invoices raised by the applicants from Mumbai, it is provided that the invoices be subject to Mumbai jurisdiction. It is further submitted that the applicant no.1 carries on business in Mumbai and the applicant no.2 is also residing in Mumbai and in fact, the amount was credited to the applicants in Mumbai and, therefore, the court situated at Mumbai is having jurisdiction to try the suit, insptie of that, the present respondent - original plaintiff has filed the suit before the concerned Civil Court at Ankleshwar. It is contended that from the documents annexed by the original plaintiff with the suit, it is evident that oral understanding was arrived at between the parties in a meeting held in Mumbai and from the documentary evidence produced before the civil court, it can be said that the cause of action has arisen in Mumbai and the Court in Mumbai is having territorial jurisdiction to try and determine the dispute between the parties.

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C/CRA/484/2021 ORDER DATED: 18/11/2021

5. Learned advocate for the applicants has placed reliance upon the judgment of the Hon'ble Supreme Court in case of Swastik Gases Private Limited Vs. Indian Oil Corporation Limited reported in (2013) 9 SCC 32, more particularly, Paragraph Nos.13, 25 and 26 and after referring to the said paragraphs, it is contended that in the invoices raised by the applicants, it is specifically stated that the invoice bill is subjected to Mumbai jurisdiction and when the respondent - plaintiff has agreed for the same, the proceedings are required to be initiated before the court situated within the territorial limits of Mumbai.

6. Learned advocate has also placed reliance upon the decision of Calcatta High Court in case of Shridhar Vyapaar Private Limited Vs. Gammon India Limited, reported in AIR 2019 Cal 178. It is submitted that in similar facts, the Calcutta High Court has directed to take off a file of concerned civil suit of the Calcutta High Court.

7. Learned advocate for the applicant, thereafter, submitted that even the trial court has framed the issues about the territorial jurisdiction, inspite of that, now the application filed by the applicants under Order 7, Rule 11(d) of the Code has been dismissed by the trial court on irrelevant grounds and, therefore, the impugned order be quashed and set aside.

8. I have considered the submissions canvassed by learned advocate for the parties. I have also perused the material placed on record. It has emerged from the record that the respondent -

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C/CRA/484/2021 ORDER DATED: 18/11/2021 plaintiff has filed the suit before the court situated at Ankleshwar for the recovery of the amount from the applicants - original defendants. The plaintiff has specifically stated in Paragraph No.5 of the plaint about the jurisdiction of the court situated at Ankleshwar and cause of action arisen within territorial limits of court situated at Ankleshwar. The case of the applicants is that the court situated at Ankleshwar is not having territorial jurisdiction to try the suit filed by the plaintiff and, therefore, the plaint is to be rejected. At this stage, this Court would like to refer to the provision contained in Order 7, Rule 11 of the Code, "11. Rejection of plaint-- The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law :

[144] [Provided that the time fixed by the Court Page 4 of 10 Downloaded on : Wed Jan 12 02:04:26 IST 2022 C/CRA/484/2021 ORDER DATED: 18/11/2021 for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp- paper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]"

9. From the aforesaid provision, it is revealed that the plaint can be rejected on the grounds stated in Order 7, Rule 11 of the Code if the suit is barred by law.

10. In the present case, as stated hereinabove, only contention taken by learned advocate for the applicants is that the court situated at Ankleshwar is not having territorial jurisdiction to try the suit, which is filed by the plaintiff.

However, even assuming that the court situated at Ankleshwar is not having any territorial jurisdiction but the court situated at Mumbai is having territorial jurisdiction to try the dispute between the parties, the plaint cannot be rejected on this ground. At the most, request can be made before the concerned civil court situated at Ankleshwar that the plaint filed by the plaintiff can be returned for presentation of the same before the court having territorial jurisdiction. At this stage, it is pertinent to note that even the trial court has framed the issue as to whether Page 5 of 10 Downloaded on : Wed Jan 12 02:04:26 IST 2022 C/CRA/484/2021 ORDER DATED: 18/11/2021 the said court is having territorial jurisdiction or not. Thus, it is open for the trial court to consider the material placed before it and, thereafter, to decide as to whether the said court is having territorial jurisdiction or not. This court is of the view that on this ground, the plaint cannot be rejected.

11. At this Court, this Court would like to refer to the decision of the Hon'ble Supreme Court in case of Swastik Gases Private Limited (supra), wherein in Paragraph Nos.13, 25 and 25, it has been observed as under,

13. In A.B.C. Laminart1, this Court was concerned with clause 11 in the agreement which read, "any dispute arising out of this sale shall be subject to Kaira jurisdiction". The disputes having arisen out of the contract between the parties, the respondents therein filed a suit for recovery of amount against the appellants therein and also claimed damages in the court of subordinate judge at Salem. The appellants, inter alia, raised the preliminary objection that the subordinate judge at Salem had no jurisdiction to entertain the suit as parties by express contract had agreed to confer exclusive jurisdiction in regard to all disputes arising out of the contract on the civil court at Kaira. When the matter reached this Court, one of the questions for consideration was whether the court at Page 6 of 10 Downloaded on : Wed Jan 12 02:04:26 IST 2022 C/CRA/484/2021 ORDER DATED: 18/11/2021 Salem had jurisdiction to entertain or try the suit. While dealing with this question, it was stated by this Court that the jurisdiction of the court in the matter of contract would depend on the situs of the contract and the cause of action arising through connecting factors. The Court referred to Sections 23 and 28 of the Indian Contract Act, 1872 (for short, 'Contract Act') and Section 20(c) of the Civil Procedure Code (for short 'Code') and also referred to Hakam Singh3 and in paragraph 21 (pgs. 175-176) of the Report held as under:

"......When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius estexclusio alterius' -- expression of one is the exclusion of another -- may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another.

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C/CRA/484/2021 ORDER DATED: 18/11/2021 When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed."

25. This Court held in para 30 of the Report that: (Balaji Coke SCC case p.409) "30. ... that the parties had knowingly and voluntarily agreed that the contract arising out of the high-seas sale agreement would be subject to Kolkata jurisdiction and even if the courts in Gujarat also had the jurisdiction to entertain any action arising out of the agreement, it has to be held that the agreement to have the disputes decided in Kolkata by an arbitrator in Kolkata was valid and respondent had wrongly chosen to file its application under Section 9 of the 1996 Act before the Bhavnagar court (Gujarat).

26. The question in Interglobe Aviation13, inter alia, was whether the Permanent Lok Adalat at Hyderabad had territorial jurisdiction to deal with the matter. The standard terms which governed the contract between the parties provided, "all disputes shall be subject to the jurisdiction of the courts of Delhi only". The contention on behalf of the appellant before this Court was that the ticket related to travel from Delhi to Hyderabad. The complaint was in Page 8 of 10 Downloaded on : Wed Jan 12 02:04:26 IST 2022 C/CRA/484/2021 ORDER DATED: 18/11/2021 regard to delay at Delhi and, therefore, the cause of action arose at Delhi and that as contract provided that the courts at Delhi only will have jurisdiction, the jurisdiction of other courts was ousted.

         This Court in para                      22 of the Report held
         as under: (SCC 99.476-477)
         "22.      As    per        the    principle             laid      down       in
                  A.B.C.       Laminart            [(1989)        2    SCC      163],
                  any         clause               which           ousts            the
                  jurisdiction              of       all       courts         having
                  jurisdiction                       and               conferring

jurisdiction on a court not otherwise having jurisdiction would be invalid.

                  It    is         now     well         settled         that        the
                  parties          cannot          by    agreement            confer

jurisdiction on a court which does not have jurisdiction; and that only where two or more courts have the jurisdiction to try a suit or proceeding, an agreement that the disputes shall be tried in one of such courts is not contrary to public policy. The ouster of jurisdiction of some courts is permissible so long as the court on which exclusive jurisdiction is conferred, had jurisdiction. If the clause had been made to apply only where a part of cause of action accrued in Delhi, it would have been valid. But as the clause provides that irrespective of Page 9 of 10 Downloaded on : Wed Jan 12 02:04:26 IST 2022 C/CRA/484/2021 ORDER DATED: 18/11/2021 the place of cause of action, only courts at Delhi would have jurisdiction, the said clause is invalid in law, having regard to the principle laid down in A.B.C. Laminart [(1989) 2 SCC 163]. The fact that in this case, the place of embarkation happened to be Delhi, would not validate a clause, which is invalid."

12. Even in the judgment of the Hon'ble Calcutta High Court in case of Shridhar Vyapaar Private Limited (supra), the High Court has ordered that the plaint filed in the suit is directed to be taken off the file of the said Court.

13. Thus keeping in view of the aforesaid judgments as well as the provisions of law contained in Order 7, Rule 11 of the Code, if the facts of the present case are examined, it can be said that the suit filed by the present respondent - original plaintiff is not barred by any law and, therefore, the plaint cannot be rejected under the said provision. Thus, no interfere is required in the present Civil Revision Application. Therefore, the present Civil Revision Application is dismissed.

Sd/-

(VIPUL M. PANCHOLI, J.) Gautam Page 10 of 10 Downloaded on : Wed Jan 12 02:04:26 IST 2022

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