Kerala High Court
Femina Handloom Of India, Cannanore vs M.R. Verma & Sons on 19 August, 1992
Equivalent citations: AIR1993KER210, AIR 1993 KERALA 210
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
JUDGMENT K.G. Balakrishnan, J.
1. Plaintiff in O.S. 116 of 1986 on the file of the Sub Court, Tellicherry is the appellant. The appeal is directed against the return of the plaint on the ground that the court below had no territorial jurisdiction to entertain the suit.
2. The suit is for realisation of the amount due from the defendant being the price of 2000 metres of cotton handloom "oxford fabric" variety sold by the plaintiff to the defendant. In the plaint the plaintiff alleged that the defendant offered to purchase cotton handloom fabric at the rate of Rs.. 13/-per metre and this offer was accepted by the plaintiff. The plaintiff later informed the defendant that she would be despatching the goods through Sharma bus, a common carrier. The goods were delivered through the common carrier and it reached the defendant's warehouse on 23-10-84. Plaintiff later sent invoice demanding Rupees 27,275.30 being the value of the goods despatched. Defendant postponed the payment under some pretext or other and ultimately the plaintiff filed the suit.
3. In the plaint the plaintiff alleged that the goods were delivered to Sharma bus from Kannur. So part of the cause of action arose at Kannur and therefore the suit was maintainable in the court below. The defendant filed written statement wherein they disputed the liability to pay the amount. The defendant contended that they had not accepted fhe proposal made by the plaintiff and that they never instructed the plaintiff to send the goods through Sharma bus. The defendant contended that there was delay in despatch of goods and hence the article was rejected. In paragraph 3 of the written statement the defendant contended that the agreement was executed at Bombay and no part of cause of action arose within the jurisdiction of the Court in Thalasserry and therefore the trial Court had no jurisdiction.
4. In the trial Court seven issues were framed and by judgment dated 30-1-89 the Court held that the plaintiff was entitled to recover Rs. 27,275.30 being the value of the goods supplied by him. But under issue No. 2 the court held that the cause of action for the suit arose at Bombay and the courts at Kannur have no territorial jurisdiction. On that premises the plaint was ordered to be returned to the plaintiff for presentation before proper court. This finding is challenged by the plaintiff.
5. At the outset I may observe that the court should have tried issue No. 2 as a preliminary issue. When the defendant contended that the Court has no territorial jurisdiction to try the case and an issue is framed regarding jurisdiction, for the convenience of the parties the same should have been tried as a preliminary issue and if the court finds that it has no jurisdiction, the plaintiff can very well proceed this litigation in the proper court. The finding regarding jurisdiction at the final stage would only cause undue hardship to parties. The provision contained in Order XIV, Rule 2(2) of the C.P.C also is relevant, where it is stated :
"Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the Court, or
(b) xx xx xx."
In this case the court should have decided the question of jurisdiction on the basis of the relevant provisions, which I shall deal with presently.
6. In the plaint there is a specific allegation to the effect that the defendant placed orders for purchase of goods from the plaintiff and the goods were delivered from Kannur to Bombay through Sharma bus. This aspect of the case was not specifically denied in the written statement. The defendant only contended that the contract was concluded at Bombay and therefore the courts in Kannur had no jurisdiction. The fact that the defendant purchased the goods from the plaintiff and that the goods were delivered from Kannur through a common carrier is not denied and the evidence adduced in this case also would show that the defendant sent the goods through a common carrier and It reached the godown of the defendant and they kept it there.
7. Under Section 20 of the C.P.C. it is stated that every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. Clause (c) says that the plaintiff can file the suit in a court within the local limits of whose jurisdiction the cause of action wholly or in part has arisen. An illustration given to Section 20 is to the following effect:
"(a) A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business."
From the above illustration it is clear that the plaintiff herein, who sent the goods to the defendant pursuant to an order placed by the defendant to send the goods, is entitled to maintain a suit in the court at the place where he had despatched the goods to the purchaser. From the illustration, it is clear that the plaintiff in this case was perfectly justified in filing the suit in the court at Thalassery. Illustration (a) to Section 20 is squarely applicable to the facts of the case, especially when the defendant has not denied the fact that they had placed orders and that the goods were sent by a common carrier from Kannur to Bombay.
8. So the court below went wrong in holding that it had no jurisdiction to try the case. The finding to that effect is not sustain-able. The respondent in this appeal, though accepted the notice, has not cared to appear and argue the appeal. They have not filed any cross-objection challenging the other findings in the impugned judgment consequent on the reversal of the finding on issue No. 2 the finding on other issue will stand. Hence suit is decreed for Rs. 27,275.30 with interest at 9% per annum from the date of suit till realisation. The plaintiff is also entitled to proportionate costs throughout.