Calcutta High Court (Appellete Side)
New Age Realty Pvt. Ltd vs Karthikeya Ancillaries Pvt. Ltd. And ... on 5 July, 2011
Author: K.J. Sengupta
Bench: K.J. Sengupta
7.2011
kc
F.M.A.T. 154 of 2011
New Age Realty Pvt. Ltd.
-versus-
Karthikeya Ancillaries Pvt. Ltd. and Anr.
Mr. Jayanta Mitra,
Mr. Aniruddha Roy,
Mr. Sourav Kumar Mukherjee,
Mr. O.P. Jhunjhunwala......................For the appellant.
Mr. S.B. Sharaf,
Mr. Rudraman Bhattacharyya,
Mr. G.N. Jajodia.................................For the respondent
No. 1.
This appeal is directed against the judgment and order of the learned Chief Judge, City, Civil Court at Calcutta dated 2nd February, 2011, passed in Misc. case No. 654 of 2010.
The appellant before us asserting that there has been an arbitration agreement between the parties and dispute having been arisen between them, made an application under section 9 of the Arbitration and Conciliation Act, 1996 before the learned City Civil Court at Calcutta. The learned Judge, on contested hearing, dismissed the said application on the ground of lack of territorial jurisdiction.
After hearing Mr. Mitra, learned Senior Advocate for the appellant and Mr. Sharaf learned Advocate for the respondent No. 1 and upon reading the copy of the application under section 9 of the aforesaid Act, it appears to us that one vital point has escaped the attention of the learned trial Judge. Neither of the parties has drawn attention of the learned Judge on the question of pecuniary jurisdiction of the learned City Civil Court. On careful perusal of the application under section 9 of the aforesaid Act, we do not find any prima facie statement and averment to invoke the jurisdiction of the learned City Civil Court at Calcutta.
While we go through the entire petition, we notice that subject matter of dispute between the parties far exceeds Rs. 10 Lacs. Even in the body of the application under section 9 of the aforesaid Act, there is no averment as to how the learned City Civil Court at Calcutta could assume jurisdiction except casual mentioning in paragraph 2 of the parent petition under section 9 that this 2 Court has jurisdiction to try and determine this application. According to us, this averment is not at all legal requirement to invoke jurisdiction. It has to be mentioned that the valuation of the subject matter of the matter by reason of the special provision of the said Act, comes within the pecuniary jurisdiction of that Court which is up to Rs. 10 Lacs.
When we do not find any such averment regarding assumption of jurisdiction by the learned City Civil Court at Calcutta, the learned Judge ought not to have entertained the application under section 9 nor decided the same on the question of territorial jurisdiction, or for that matter, on any other issue. Thankfully, the learned Judge did not touch other issues, except territorial jurisdiction.
Under these circumstances, we think that the impugned judgment and order passed by the learned trial Judge is without jurisdiction as it lacks pecuniary jurisdiction. This judgement and order is not sustainable and accordingly, the same is set aside.
We are of the view that the learned Judge ought to have read the entire petition carefully. It is the primary duty of the court to examine whether it has got the pecuniary jurisdiction, at the first instance. Of course, the point of territorial jurisdiction and other points have been raised.
The City Civil Court Act, 1953 (as amended) being a special one, specifically provides that if the subject matter of any civil suit or proceedings exceeds Rs. 10 Lacs, at present the learned City Civil Court cannot have any jurisdiction. What measure ought to have been taken by the said Court, has been provided in section 14 of the said Act of 1953, which reads as follows :
"Section 14: Return of plaint for want of jurisdiction and provision for crediting fees already paid -
If at any stage of a suit or proceeding instituted in the High Court or the City Civil Court, such Court finds that for want of jurisdiction it cannot, or will not be able to, entertain or decide the suit or proceedings and that it should have been instituted in the City Civil Court or the High Court, as the case may be, the High Court or the City Civil Court shall -
(i) order the plaint or the application to be returned for presentation to the City Civil Court or the High Court, as the case may be, and
(ii) order that in the levy of any court-fee payable by a party to a suit or proceeding in connection with the suit or proceeding in the City Civil Court or the High Court, as the case may be, credit shall be given for any court-fee already paid by such party in connection with the suit or proceeding 3 instituted in the High Court or the City Civil Court and that any excess shall be refunded."
In view of the aforesaid special provision, read with order VII rule 10 of the Code of Civil Procedure, we think that this application should have been and is hereby returned to the petitioner viz. the appellant herein, for presentation before the appropriate court.
Accordingly, the learned Court below shall take necessary steps forthwith, on production of Xerox plain copy of this order, so that the appellant before us can take steps, in accordance with law, as may be advised.
The aforesaid material defect was not detected by the Court earlier as no one pointed out the same and, as such, the appellant could not take effective steps. Therefore, as a compensatory measure, interim order passed by this Court, will continue for a period of one month from date to enable Mr. Mitra's client to take steps, in accordance with law. We make it clear, interim order will stand vacated automatically if any proceeding is brought before the appropriate Court or on expiry of one month, whichever is earlier. It would be open for Mr. Mitra's client to pray for suitable interim relief, after presentation of the said application before the appropriate Court.
All points on the question of merit as well as territorial jurisdiction are kept open for decision by the Court where it would be presented. We also make it clear that we have decided this appeal on the question of pecuniary jurisdiction only and not otherwise.
Report filed by the Special Officer may form part of the record and this report may be used by the parties before the appropriate Court, if it is desired to be taken note of by that Court.
The Special Officer will stand discharged on receipt of remuneration granted by this Court.
A copy of this order shall also be communicated to the learned Special Officer.
With the aforesaid observation, the appeal stands disposed of. There will be no order as to costs.
Let Xerox plain copy of this order, duly countersigned by the Assistant Registrar (Court) be given to the learned Lawyers for the parties on their undertaking that they will apply for and obtain Xerox certified copy of this order. In the event, Xerox certified copy is not taken delivery of, in spite of being notified, effect of the Xerox plain copy will stand extinguished.
4(K.J. SENGUPTA,J.) (JOYMALYA BAGCHI,J.)