Calcutta High Court
Jaintia Highway Pvt. Ltd vs National Highway Authority Of India & ... on 12 March, 2014
Author: I. P. Mukerji
Bench: I. P. Mukerji
GA No. 438 of 2014 with CS No. 52 of 2014 GA No. 630 of 2014 GA No. 671 of 2014 IN THE HIGH COURT AT CALCUTTA ORDIANRY ORIGINAL CIVIL JURISDICTION Jaintia Highway Pvt. Ltd.
Versus National Highway Authority of India & Anr.
Before:
The Hon'ble Justice I. P. MUKERJI Date: 12th March 2014 Appearance:
Mr. Pratap Chatterjee, Sr. Advocate Mr. Abhrajit Mitra, Advocate Mr. Sarbapriya Mukherjee, Advocate Mr. Prithviraj Sinha, Advocate for the plaintiff Mr. Aryak Dutt, Advocate Mr. Dipankar Das, Advocate Mr. Ashish Shah for the defendant Mr. Indrajit Sen, Advocate for the bank The Court: Mr. Aryak Dutt, learned counsel for the National Highway Authority of India takes the point of maintainability of the suit and application. He argues that no part of the cause of action pleaded in the plaint has arisen within the jurisdiction of this Court. There is a forum selection clause under which courts in Delhi have exclusive jurisdiction to try the disputes arising out of the contract between the parties. The bank guarantee is unconditional. The bank has been unnecessarily impleaded as a party and an alleged cause of action pleaded against them so as to invoke the jurisdiction of this Court.
Mr. Mitra, learned counsel led by Mr. Chatterjee, learned Senior Counsel for the plaintiff replies that there is joinder of causes of action against National Highway Authority of India and the bank. The bank guarantee is conditional. The bank has to ensure that it is only invoked 2 after commencement of the "construction period". Moreover, it has a further obligation to see that it is invoked in accordance with the terms thereof. Since cause of action is pleaded and reliefs claimed against the bank which is not a party to the contract, the forum selection clause will not apply. The cause of action as against the bank has arisen within the jurisdiction of this Court.
Mr. Mitra also argues that the bank guarantee was invoked before the construction period commenced. Construction was delayed because of laches on the part of the National Highway Authority interalia to provide land to the plaintiff.
Learned counsel for the bank endorses the submission of Mr. Dutt that as of today there is no attempt on the part of the National Highway Authority of India to invoke the bank guarantee.
Considering the submissions of Mr. Dutt, I am of the opinion that the disputed facts have to be considered on affidavits. On Order VII Rule 11 principles, on a mere scrutiny of the plaint, the suit cannot be dismissed on the ground that this Court has no jurisdiction to try the same. In fact the averments in the plaint disclose some cause of action against the bank. Therefore, prima facie this Court appears to have jurisdiction subject to the case to be made out in the affidavit-in-opposition.
Since there is no threat of invocation of bank guarantee, I am not going into the merits of the matter at all, at this stage.
Let affidavits be exchanged in the following manner: Affidavit-in-opposition be filed by 26th March 2014. List this application on 9th April 2014. Affidavit-in-reply may be filed in the meantime.
I make it clear that I am not passing any order of injunction restraining the defendant from invoking the bank guarantee, but I do order that in the facts and circumstances of the case, the first defendant will give 3 the plaintiff at lease two weeks' notice before invocation of the bank guarantee to enable them to approach this Court.
The plaintiff will keep the bank guarantee suitably renewed. This order is passed without prejudice to the rights and contentions of the first defendant.
Leave is granted to the Advocate-on-Record for the plaintiff to communicate the gist of this order to the defendants.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.) R. Bose AR(CR)