Gujarat High Court
M/S Airwave International Pvt Ltd vs Shyamjee Prepaid Services on 18 December, 2015
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/20241/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20241 of 2015
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M/S AIRWAVE INTERNATIONAL PVT LTD.,....Petitioner(s)
Versus
SHYAMJEE PREPAID SERVICES....Respondent(s)
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Appearance:
MR D M AHUJA, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 18/12/2015
ORAL ORDER
1. By way of this petition, the petitioner - original defendant challenges order dated 6.11.2015 passed in Regular Civil Suit No.251 of 2015, whereby the learned trial Judge rejected application preferred under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908.
2. The plaintiff filed a suit for declaration and permanent and mandatory injunction inter alia prayed the following reliefs in para 18, which reads as under:
"a. Pass a decree of declaration by declaring the plaintiff as an original importer as mentioned in Bill of Entry supplied by the customs department against the sale of the material to the plaintiff by the defendant. b. Pass a decree of mandatory injunction directing the defendant company to supply the invoices to the plaintiff firm as per the terms and conditions of the minutes of the Page 1 of 3 HC-NIC Page 1 of 3 Created On Sat Dec 19 02:52:21 IST 2015 C/SCA/20241/2015 ORDER meetings/ Agreement.
c. Pass a decree of permanent injunction restraining the defendant company not to put any undue pressure upon the plaintiff firm to remit the payment to the defendant company without supplying the Invoices to the plaintiff firm as per the terms and conditions of the minutes of the meetings."
3. For claiming the above relief, the plaintiff has stated as to when and where the cause of action arose and for that in plaint para 16, the following averments are made by the plaintiff.
16. That the cause of action arose on 11.4.2015 when the first Minutes of meeting held at Noida Gautam Budh Nagar, (U.P.) and further cause of action arose on 25.5.2015 when both the parties are entered into High Seas Sale Agrement. The cause of action again arose on 1.6.2015 when the minutes of meetings held at Nodia, Gautam Budh Nagar, (U.P.). The cause of action further continued till the execution of High Seas Sale agreement on 25.5.2015 and the cause of action is still continue."
4. The defendant in view of the relief prayed for in the plaint and the averments made in para 16 of the plaint, moved an application Exh.14 for rejection of the plaint as provided under Order 7 Rule 11(d) as the Court at Gandhidham has no territorial jurisdiction to try and decide the suit since the cause of action arose at Noida (U.P.).
5. Upon perusal of the impugned order, it appears that the Page 2 of 3 HC-NIC Page 2 of 3 Created On Sat Dec 19 02:52:21 IST 2015 C/SCA/20241/2015 ORDER learned trial Judge proceeded the hearing of application Exh.14 as if it is filed under the provisions of Order 7 Rule 11(a) of the Code. In light of this position, present petition deserves consideration.
6. Issue Notice returnable on 2.2.2016. Meanwhile, relief in terms of para 8(B) is granted.
(S.H.VORA, J.) shekhar Page 3 of 3 HC-NIC Page 3 of 3 Created On Sat Dec 19 02:52:21 IST 2015