Jammu & Kashmir High Court - Srinagar Bench
Bajaj Auto Limited vs . M/S Bajaj Syndicate on 15 October, 2020
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
OWP No. 390/2019
[WP(C) No. 1129/2019]
CM No. 2068/2019[1/2019]
c/w
OWP No. 203/2019
CM No. 1096/2019[1/2019]
CM No. 4295/2019
Pronounced on:15th.10.2020
OWP No. 390/2019
Bajaj Auto Limited Vs. M/s Bajaj Syndicate
....Petitioner ....Respondent
Mr. R. K. Gupta, Sr. Advocate with Mr. Varut Kumar Gupta, Advocate for petitioner.
Mr. Rizwan-Ul-Zaman, Advocate for respondent.
OWP No. 203/2019
M/s Bajaj Syndicate Vs. Bajaj Auto Limited & others
....Petitioner ....Respondents
Mr. Rizwan-Ul-Zaman, Advocate for petitioner
Mr. R. K. Gupta, Sr. Advocate with Mr. Varut Kumar Gupta, Advocate for respondents.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. Both these petitions are against the order dated 16.02.2019 passed by learned Munsiff, Anantnag in the suit filed by the plaintiff-M/s Bajaj Syndicate. The plaintiff who is the petitioner in OWP No. 203/2019 questioned the impugned order on the ground that it is violative of Order 3 of Code of Civil Procedure (hereinafter referred to CPC) because the General Manager(Legal) is neither a party in the suit nor holds an authority to file the written statement in view of the mandate of Rule 2 of Order 3 CPC.
02. Another ground of challenge is that in terms of Order 29 CPC, General Manager(Legal), is neither a principal officer nor has been 2 OWP No. 390/2019 c/w OWP No. 203/2019 authorized to sign or verify the written statement. The impugned order being illegal, the written statement has been wrongly entertained, as such, the order may be quashed by a writ of Mandamus and the Trial Court be directed not to take on record the written statement.
03. The Defendant-Bajaj Auto Limited in the suit has also challenged order dated 16.02.2018 in OWP No. 390/2019 on the ground that the Trial Court has assumed jurisdiction not vested in it and acted illegally, while passing the impugned order dated 16.02.2019, before deciding the question of jurisdiction even though Annexure-A to Para-3 of the plaint specifically bars the jurisdiction of any court other than court at Pune as stated in condition-V which should have been considered by the Trial Court before directing the parties to maintain status quo on 21.07.2018.
04. Heard learned counsel for the parties.
05. This Court while exercising the jurisdiction under Article 227 of the Constitution of India is only to examine the legality of the order impugned while considering the maintainability of the writ under Article 227. The admitted fact is that the original license was valid only from 01.04.2011 to 31.03.2013. Copy of which is annexed as Annexure-A to Para-3 of the plaint. But it is not disputed that a fresh appointment order dated 01.04.2013 was issued by appointing the plaintiff/petitioner as dealer with effect from 10.04.2013 to 31.03.2015 on the same terms and conditions.
06. Paras A to Y are the terms and conditions of the appointment of the plaintiff as dealer. Para-(V) of these terms and conditions dated 16.02.2011 states:
"V) Since the allotment of vehicles to you is made 3 OWP No. 390/2019 c/w OWP No. 203/2019 from Pune, this letter of appointment as dealer is issued at Pune and your appointment as dealer will be effective only after receipt of your confirmation by us at Pune, any dispute arising out of or incidental to this appointment letter and term and conditions mentioned herein, shall be subject to jurisdiction of the court of City of Pune (Maharashtra) only."
07. The plaintiff/petitioner vide letter dated 03.05.2013 addressed to Bajaj Auto Limited, confirmed his appointment. The contents of his letter reads as under:
"I/We Mr. Abdul Hamid Wani, residing at Baigpora AWPA are in receipt of the letter No. MKTG:CV:2011 dated 16.02.2011from Bajaj Auto Ltd., Pune. After carefully going through the above, I/We agree and confirm on all the terms and conditions stated in the aforesaid letter of appointment and undertake to comply with the same.
I/We further agree and confirm that the above referred letter of appointment shall come into force and shall be effective only after receipt of our confirmation by Bajaj Auto Limited at Pune and not otherwise."
08. So the plaintiff having confirmed his appointment as dealer and accepted the terms and conditions of appointment, it is condition (V) of this appointment letter as well as condition (V) of the Annexure-IV to the plaint which would determine the jurisdiction of the trial court. Condition (V) of the appointment order dated 01.04.2013 is reproduced below:-
"V. This letter of appointment as dealer is issued at Pune and your appointment as dealer will be effective only after receipt of your confirmation by us at Pune, any dispute arising out of or incidental to this appointment letter and terms and conditions mentioned herein, shall be subject to jurisdiction of the Court of City of Pune(Maharashtra) only."4 OWP No. 390/2019 c/w OWP No. 203/2019
09. The plaintiff having confirmed this appointment as per Annexure A of Para-3 of the plaint, as well as its subsequent appointment order dated 01.04.2013 is bound by the terms and conditions including this condition and is bound by it.
10. The case of the defendant/petitioner in OWP No. 390/2019 is that the dealership of the plaintiff was terminated vide letter dated 26.09.2013, and the plaintiff was requested to file warranty claims and an amount of Rs. 4,16,486.34/- has been paid vide cheque dated 23.10.2013.
11. The plaintiff has neither denied the termination nor the receipt of cheque and withdrawal of the amount. Moreover, the fact of termination of the dealership is admitted by the plaintiff in Annexure-5 which is a copy of the notice issued by his Advocate-Mr. Sarjan Ahmad Sofi, Advocate of Bijbehara(supra), the opening part and Para-1 of which is reproduced below:-
"In response to your dealership termination notice dated 26 Sept., 2013 to Mr. Abdul Hamid Wani S/o Ali Mohammad Wani R/o Beighpora Awantipora proprietor m/s Bajaj Syndicate, (hereinafter referred to „as my client‟). The following representation cum legal notice is submitted for your humble consideration.
1). .............."
2). ...............
3). ..............
4). ..............
5). ...............
6). That in the given facts and circumstances, my client
5 OWP No. 390/2019 c/w OWP No. 203/2019
expects the immediate revocation of dealership termination notice and revival of his dealership, however; ln the eventuality of dealership termination notice not being revoked by the Company, my client will be constrained to initiate legal proceedings against the Company for unjustified termination of dealership of' my client. However, before doing so you are being apprised of the matter by virtue of this legal notice so that you could take steps to avoid the proposed legal action against the Company on part of my client, by making a review of dealership termination issue and humble consideration for lt's revival in favour of my client. You are further requested not to appoint any new dealer for the area till the matter is finally settled with my client."
12. Since the dealership stood terminated as is clear from letter dated 26.09.2013. There was no question to reconsider the issue particularly, when the response to the above letter the plaintiff had submitted the warranty claims which have been paid vide cheque No. 85448 dated 23.10.2013, a fact not denied by the plaintiff. The relevant portion of letter dated 26.09.2013 is reproduced below:
"In this process, we shall not be able to continue you three wheeler dealership at Anantnag. The supply of vehicles and parts to your dealership will be stopped with immediate effect. Meanwhile, we would request you to submit all your warranty claims to Bajaj Auto Ltd. for settlement by 25th Oct, 2013. Any claims received after 25th Oct. will not be entertained."
13. This termination was in terms of the appointment letter dated 01.04.2013 and the plaintiff having concealed the fact of termination of dealership from the court while filing copy of the dealership appointment letter dated 01.04.2011 which had expired on 31.03.2015, as such, mislead the Court in order to obtain status quo order dated 21.07.2018, which is also 6 OWP No. 390/2019 c/w OWP No. 203/2019 non est as the letter of intent was issued in favour of M/s Kashmir Motors Larkipora Awantipura, Pulwama.
14. In the writ petition OWP No. 203/2019 filed by the plaintiff against order dated 16.02.2019, the reliefs claimed by him are as under:
"(i) Certiorari: thereby quashing the order dated 18.02.2019 passed by the learned Munsiff, Anantnag, so far as it entertains the written statement filed on behalf of respondents by an unauthorized person.
(ii) Mandamus: thereby commanding the learned Trial Court to take the written statement filed by General Manager(Legal) Bajaj Auto off the record of the suit
(iii) Any order or direction as the Hon‟ble court deems fit and proper in the circumstances of the case be passed in favour of petitioners and against the respondents."
The grounds urged in support of the plea are that Manager (Legal) cannot be a recognized agent as per Rule-2 of Order-3 CPC. But, Order 29 CPC is a special provision in respect of suit by or against Corporations only to cases covered by order 29 CPC. The finding of the Trial court in para 7 of the order does not suffer from any vice of illegality in view of the law laid down by Hon‟ble the Supreme Court in AIR 1997 SC 3.
15. Moreover, the Board of Director in the meeting held on 31.01.2017 have authorized 04 persons including Shri J Sridhar, Company Secretary and Shri Nasir Ahmed General Manager(Legal) to appear for and on behalf of the company and to lead evidence and to do all such things, as he may deem fit in any proceedings of the company pending before any court of law and before any Government Authority, Tribunal and/or judicial, quasi- judicial authority in India. The Board further resolved that any such 7 OWP No. 390/2019 c/w OWP No. 203/2019 document signed by the above authorised officer and/or actions so taken by them and are hereby confirmed and ratified.
16. Since the written statement has been duly signed and verified by the General Manager(Legal), who has been authorized by the Board of Company , therefore, there is no infirmity in the order dated 16.02.2019.
17. In the case of United Bank of India Vs. Naresh Kumar in AIR 1997 SC 3, their lordships of the Hon‟ble Supreme Court has held as under:
"10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the Pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being 8 OWP No. 390/2019 c/w OWP No. 203/2019 executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer..."
18. This is a complete answer to the arguments challenging to the findings returned by the Trial Court because any General Manager could validly sign and verify pleadings which includes General Manager(Legal) as well as he has been specially authorized by the Board of company to do so, he is also principal officer of the company, who has been empowered by the Board of the Company.
19. This petition ( OWP No. 203/2019) is, therefore, misconceived having no merit and is, accordingly, dismissed.
20. This takes us to OWP No. 390/2019 filed by the defendant/petitioner/Bajaj Auto Limited. The defendant/petitioner in this petition has assailed the order of Trial Court postponing the consideration of its plea of the lack of jurisdiction of the Trial Court is against the admitted facts of law. The observations of the Trial Court in para 9 of the judgment dated 16.02.2019 for consideration regarding issue of jurisdiction and the reasons given in para 9 of the impugned order dated 16.02.2019 being relevant are reproduced below:
"9. In the present case also the defendants counsel has admitted that his court is having the jurisdiction to try the suit in hand but has submitted that as per the agreement between the parties 9 OWP No. 390/2019 c/w OWP No. 203/2019 to lis. This court lacks the jurisdiction to try the suit in hand in view of the agreement between the parties. But in the present suit application seeking leave to amend the suit has also been filed which is pending adjudication in my view the point of jurisdiction raised can be adjudicated properly after considering the application seeking leave to amend the plaint and after framing an issue to that effect but on the mere plea of want of jurisdiction raised on the basis of an agreement the plaint in hand cannot be thrown out at the threshold. As such the decision on the point of jurisdiction raised is accordingly deferred till the framing of the issues in the matter and consideration of the application seeking leave to amend of the plaint. Since the suit is posted for filing the objections to the application seeking leave to amend the plaint. As such the defendant is directed to file the objections to the application seeking leave to amend the plaint on next date of hearing let the file shall come up for further proceedings on 18.02.2019."
21. The reasons given by the Trial Court are not only absurd but also preposterous in view of the Mandate of Section 22 of CPC which provides as under:
" Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed".
22. The plaintiff-Abdul Hamid Wani having accepted the dealership vide letter dated 03.05.2013 which reads as under:
10 OWP No. 390/2019 c/w OWP No. 203/2019
"I/We Mr. Abdul Hamid Wani, residing at Baigpora AWPA are in receipt of the letter No. MKTG:CV:2013 dated 01 April, 2013 from Bajaj Auto Ltd., Pune. After carefully going through the above, I/We agree and confirm on all the terms and conditions stated in the aforesaid letter of appointment and undertake to comply with the same.
I/We further agree and confirm that the above referred letter of appointment shall come into force and shall be effective only after receipt of our confirmation by Bajaj Auto Limited at Pune and not otherwise."
23. But this fact has not been disclosed in the plaint which again is an attempt to mislead the Court to obtain a decree on the false grounds and the court has failed in its duty to examine the plaint as to whether it satisfied the mandate of Order-6 Rule-1 of CPC. The defendant/petitioner has raised a preliminary objection about the lack of jurisdiction in the written statement. This is apart from the fact that appointment of defendant provided in terms and conditions from A to J which are the conditions of the appointment as dealer of agreement dated February 16, 2011 and condition „V‟ provides as under:
"V. Since the allotment of vehicles to you is made from Pune, this letter of appointment as dealer is issued at Pune and your appointment as dealer will be effective only after receipt of your confirmation by us at Pune, any dispute arising out of or incidental to this appointment letter and terms and conditions mentioned herein, shall be subject to jurisdiction of the Court of City of Pune(Maharashtra) only."
This is also incorporated in the appointment order dated 01.04.2013 So, the court at Pune alone have the jurisdiction regarding any dispute arising out of the agreement dated 16.02.2011 as well as order dated 11 OWP No. 390/2019 c/w OWP No. 203/2019 01.04.2013.
24. In ABC Leminart Private Ltd. And another V. A. P. Agencies, AIR 1989 SC 1239, their lordship has held as under:
"...............Thus it is now a settled principle that where there may be two or more competent Courts which can entertain a suit consequent up on a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague it is not hit by sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the Statue......"
25. The legal position has been reiterated by the Hon‟ble Supreme Court in B.E. Simoese Von Staraburg Niedenthal and anr. Vs. Chhattisgarh Investment Limited, 2015(12) SCC 225:-
"9. In Swastik Gases (P) Ltd., the three-Judge Bench of this Court had an occasion to consider the issue as to whether in a contract that specifies the jurisdiction of particular courts at a particular place and such courts have jurisdiction to deal with the matter, whether the parties had intended to exclude the other courts?
10. In Swastik Gases (P) Ltd., in the lead judgment, one of us (R.M. Lodha, J., as he then was) referred to the earlier decisions of this Court in Hakam Singh v. Gammon (India) Ltd.; Globe Transport Corpn. v. Triveni Engg. Works; Angile Insulations v. Davy Ashmore India Ltd; New Moga Transport Co., v. United India Insurance Co. Ltd.; Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia; Rajasthan SEB v. Universal Petrol Chemicals Ltd.; Balaji Coke Industry (P) Ltd. v. Maa Bhagwati Coke Gujarat (P) Ltd., A.V.M. Sales Corpn.12 OWP No. 390/2019 c/w OWP No. 203/2019
v. Anuradha Chemicals (P) Limited, and culled out the legal position in para 32 of the report as under:-
"32. ... It is a fact that whilst providing for jurisdiction clause in the agreement the words like "alone", "only", "exclusive" or "exclusive jurisdiction" have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having Clause 18 in the agreement - is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner."
26. The trial court has, thus, erred in holding that it will first decide the application for amendment to the plaint and thereafter decide the question of jurisdiction. This view is against the mandate of Section 22 of the CPC. The delay has in fact perpetuated the problem in view of the spate of application filed in the suit one being to restrain the defendant/petitioner 13 OWP No. 390/2019 c/w OWP No. 203/2019 for supplying his three wheeler vehicles in pursuance to the letter of intent dated 29.06.2018 and another application to direct defendant/petitioner to supply Bajaj Commercial Vehicles to the plaintiff, besides an application seeking compliance of the status quo order dated 21.07.2018.
27. Condition V of the Letter of Appointment dated 16.02.2011 relied upon by the plaintiff in the suit is identical to condition V of the agreement dated 01.04.2013. Though expression „only‟ has been used in condition V but it could not make any difference in view of the law laid down in M/s Swastic Gases Private limited v. India Oil Corporation Limited, reported in (2013) 9 SCC 32 and the same had been followed in B.E. Simoese Von Staraburg Niedenthal and anr. Vs. Chhattisgarh Investment Limited, 2015(12) SCC 225.
28. In view of the law laid down by their lordships of the Hon‟ble Supreme Court, this petition (OWP No. 390/2019), is allowed. The order dated 16.02.2019 and the order dated 21.07.2018 are set aside being without any jurisdiction and the Trial Court is directed to return the plaint to the plaintiff for presentation to the Court at Pune Maharashtra which alone has the jurisdiction to entertain the suit, in terms of Order VII Rule 10. Parties through their counsel shall appear before the trial Court on 27.10.2020.
29. Disposed of alongwith all the connected applications.
(Sindhu Sharma) Judge SRINAGAR 15th.10.2020 SUNIL-II Whether the order is speaking: Yes Whether the order is reportable: Yes SUNIL KUMAR 2020.10.16 17:55 I attest to the accuracy and integrity of this document