Madras High Court
985 (3) Scc 217 (State Of Rajasthan And ... vs M/S.Swaika Properties And Another) on 26 September, 2011
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.09.2011 CORAM THE HON'BLE MR. JUSTICE S.RAJESWARAN A.No.3741 of 2010 in C.S.No.291 of 2010 ORDER
This application has been filed by defendants 1 to 4 in C.S.No.291 of 2010 under Order 7 Rule 11 to reject the plaint in C.S.No.291 of 2010.
2. C.S.No.291 of 2010 has been filed by the plaintiff for the following reliefs:
"a) For permitting the plaintiff to uplift the materials covered in Lot No.1 of the E-Auction conducted by the 5th defendant now lying at Ernakulam Terminal, HPCL, Ernakulam North Post Office, Cochin 682 018, Kerala State, more particularly described in the Schedule hereunder by making necessary arrangements for the uplifting of the materials without payment of ground rent and without insisting on any other pre-condition (or) in the alternative, directing the defendants to pay a sum of Rs.1,34,03,660/- towards the cost of the materials.
3. The case of the plaintiff, as stated in the plaint is as follows:
The plaintiff is doing business in selling scrap materials, old debris, sand and other waste and unusable items under name of M/s.Vijay Steels. The fifth defendant is a Nodal agency for the sale of steels for an on behalf of M/s.Hindustan Petroleum Corporation Ltd. (HPC Ltd), the first defendant herein. The fifth defendant made advertisement for Auction/sale of materials owned by M/s.Hindustan Petroleum Corporation Ltd. Lying at the premises of Ernakulam Terminal of M/s.Hindustan Petroleum Corporation Ltd., Ernakulam North Post Office, Cochin-18, Kerala State. The materials to be auctioned are covered in Lot No.1, ie. Various assets including dismantling and removal of building in Ernakulam as per the list of items as shown in the Annexure I of the Auction Notice.
4. The plaintiff visited the site where the materials covered under item No.1 are lying and took inventory of the same. The plaintiff noticed the materials found in Lot A to P of lot No.1. As far as Lot No.N is concerned, the plaintiff measured the sand foundation over which the tanks are placed. There are 10 tanks noticed at the time of inspection. Out of the 10 tanks, three tanks namely 254, 264 and 265 were placed without sand foundation over the ground level. As far as the other tanks are concerned the plaintiff noticed the sand foundation over the ground level and measured the sand foundation and the total quantity of sand available at the time of inspection in the foundation is 10,354 Cubic Meter (m3). The sand pad is also included in the lot. The plaintiff paid Rs.10 lakhs towards the pre-bid EMD on 27.01.2009 by way of a demand draft in the office of the 5th defendant and participated in the e-auction, which was conducted on 28.01.2009 by the 5th defendant. The plaintiff became a successful bidder for a sum of Rs.3,79,98,999/-. The auction was thereafter confirmed by the 5th defendant in favour of the plaintiff by email dated 28.01.2009 at 5.05 p.m. After the confirmation, the plaintiff paid a sum of Rs.95 lakhs on 03.02.2009 by a demand draft in the office of the 5th defendant towards 25% of the sale value as per the terms of the tender.
5. After receipt of the said amount, the fifth defendant issued a sale order on 04.02.2009. On 10.02.2009, the plaintiff paid a sum of Rs.67 lakhs to the fifth defendant towards the part of the balance sale value. The defendants accepted the sale against the 'C' Form and accepted the 'C' Form as submitted by the plaintiff. On 17.02.2009, the plaintiff paid the remaining sale value together with a sum of Rs.7,59,980/- towards the CST @ 2% on the total sale value. On 17.02.2009, the plaintiff paid a total sum of Rs.2,25,58,979/- to the fifth defendant. On receipt of the total sale value along with the CST, the fourth defendant issued an invoice for a total sum of Rs.3,87,58,979/- and delivered the goods as is where-is condition to the plaintiff.
6. Thereafter, the plaintiff started dismantling work on 22.02.2009. As per the tender conditions, the period of removing and uplifting the entire scrap sold and delivered was three months from the date of the Delivery Order i.e., 18.02.2009. However, the plaintiff could not complete the lifting of the entire scrap materials within the stipulated period. Hence, the plaintiff by letter dated 20.04.2009 and 19.05.2009, sought for extension of time for removal of the materials from 22.05.2009 to 21.06.2009. The third defendant granted extension of time upto 22.06.2009. Evenafter the extension, the defendants could not facilitate the removal to the plaintiff, as they could not hand over the godown and the other materials as covered under Lot No.1, due to want of certain administrative decisions by the Officers of the first defendant. Therefore, the plaintiff sent a notice dated 02.07.2009 through the counsel demanding the defendants to pass necessary orders to facilitate earlier dismantling and removal. The plaintiff ultimately could remove the materials for the value of Rs.3,03,64,100/-. Tank foundation (Sand Pad), cables and scrap materials approximately valued at Rs.1,34,03,660/- are yet to be removed. The third defendant by letter dated 30.07.2009 refused to grant extension of time on the ground that the plaintiff failed to submit Form XV under the General Sales Tax Act duly stamped from the Kerala State Border Check Post, to confirm that the materials have crossed the border. According to the plaintiff, submission of Form XV is not a part of the tender conditions. To get over the inability of the defendants to hand over the materials the third defendant added a new condition in the contract. As far as the payment of Sales Tax is concerned, it is a liability of the plaintiff. The defendant, in fact, permitted the plaintiff to lift the materials sold and delivered against 'C' Form. Without giving sufficient time for lifting the materials, the defendants have laid a condition for the first time. On account of that, the plaintiff is also not able to remove the materials, but, they are made to pay the ground rent. According to the plaintiff, removal of the materials is held only on account of the defendants new stipulation, for which, the plaintiff cannot be made liable to pay the ground rent. On payment of the entire amount, the materials stand transferred to the plaintiff. It is only the defendants' obligation to facilitate the plaintiff to remove the materials. The defendants are liable to permit the plaintiff to lift the materials without any itch and without paying the ground rent. The plaintiffs are entitled to remove the entire materials purchased by them. Hence, the above suit has been filed for the aforesaid prayer.
7. Along with the suit, an application in O.A.No.351 of 2010 was filed, for an order of interim injunction to restrain the defendants from selling or removing the materials described in the schedule.
8. This Court on 29.03.2010, granted an order of injunction till 05.04.2010 and the same has been extended from time to time thereafter till date and on 09.06.2010 this Court extended the stay granted until further orders.
9. Whileso, the defendants 1 to 4 filed an application No.3741 of 2010 under Order VII Rule 11 to reject the plaint. The case of the defendants 1 to 4 in the said application is as follows:
At the outset, the defendants would state that no cause of action arose within the territorial jurisdiction of this Court to file the above suit before this Court. Hindustan Petroleum Corporation Limited has its Registered Offices at Cochin, Kerala and they floated a tender for disposal of their scrap items including dismantling and removal of the building in Ernakulam Terminal as per the list of items mentioned in annexure thereto. The location was at Ernakulam, Kerala. Hindustan Petroleum Corporation Limited availed the services of MSTC Limited for auctioning the scrap materials. MSTC, in turn, followed the E-Auction method. It has its Registered Offices at Calcutta, Regional Offices at Mumbai, Chennai, New Delhi and Branch Office at Bangalore, Vishakapattinam, Vadodara, Bhopal, Haldia and Trichy. As per the terms and conditions, the pre-bid EMD can be deposited in any of the offices of the MSTC Limited, including the office at No.69, Armenian Street, Chennai-1. In accordance with the terms and conditions of the E-Auction, the plaintiff was selected as a Successful Bidder and a communication intimating the acceptance of the bid was issued by MSTC Limited, on behalf of the Hindustan Petroleum Corporation Limited.
10. As per the terms and conditions, if there is any dispute with regard to the E-Auction, only the Courts in Calcutta shall have the jurisdiction. As MSTC was having its Registered Office at Calcutta and the E-Auction has been controlled and carried from Calcutta, the jurisdiction was restricted to the Courts of Calcutta. A perusal of the averments made in the plaint would clearly reveal that the plaintiff has no grievance against the E-Auction. The entire averments in the plaint are relating to the removal of goods and the purported difficulties faced by him in removing the goods at Ernakulam. Thus, no part of cause of auction in the plaint arose within the territorial jurisdiction of this court. The second and the fifth defendants were shown as defendants only for the purpose of filing the suit before this court. Whereas the entire allegations in the plaint are alleged to have taken place at Ernakulam and not within the territorial jurisdiction of this court. The facts as found in the plaint do not give rise to a cause of action that would confer the territorial jurisdiction of this court. No part of cause of action arose within the territorial jurisdiction of this court. The mere payment of EMD made by the plaintiff at one of the offices of MSTC Ltd. at Chennai or receiving the communication from the fifth defendant would not give rise to cause of action to file a suit before this court. Hence, the suit filed by the plaintiff is an abuse of process of law and consequently, the plaint is liable to rejected.
11. Counter affidavit has been filed by the first respondent/plaintiff to this application No.3741 of 2010.
12. The issue of maintainability of the suit on the basis of cause of action is a question of fact which should be decided only at the time of trial after recording the oral and documentary evidence in the case. Without impleading of MSTC, the 5th defendant in the suit, this application, is not maintainable, as the 5th defendant only conducted the auction. No part of cause of action arose within the jurisdiction of the Courts at Calcutta.
13. The plaintiff participated in the E-Auction at Chennai, wherein the office of the MSTC situates. The E-Auction was also invited by the office of the MSTC, Chennai. The entire sale consideration was also received at MSTC Office, Chennai. The acceptance letter/sale order was issued and delivered by the defendants at Chennai. Therefore, part of cause of action did arise at Chennai within the jurisdiction of this Court and the suit filed within the jurisdiction of this Court is very much in order. Further, the relief sought for in the suit is only to permit the plaintiff to lift the materials covered by E-Auction conducted by the MSTC and handed over by MSTC, which are lying at Ernakulam, Hindustan Petroleum Corporation Limited, North Post Office, Cochin-18, Kerala State or in the alternative pay a sum of Rs.1,34,03,660/- towards the cost of the materials, all the materials are covered under E-Auction which was conducted by MSTC at Chennai on behalf of the defendants. The officers of the defendants conducted the E-Auction at Chennai and delivered the materials at Chennai, after receiving the entire sale consideration. In case, the plaintiff is not permitted to remove the goods, he seeks all the value of the goods. Therefore, the suit is very much maintainable before this Court and the application filed by the defendants to reject the plaint is liable to be dismissed.
14. It is the further case of the plaintiff that the suit was filed after obtaining the leave of this Court to file the suit before this Court against the defendants 1, 3 and 4 in A.No.5975 of 2009. In fact, this Court, by order dated 21.03.2010, allowed the said application No.5975 of 2010 and the said order has become final. Therefore, the present application filed by the defendants to reject the plaint is not maintainable at all.
15. I have heard the learned counsel appearing for the applicants/defendants and the learned counsel appearing for the respondent/plaintiff. I have also gone through the records.
16. The learned counsel appearing for the applicants/defendants would in support of his submissions rely on the following judgments:
1. 1985 (3) SCC 217 (State of Rajasthan and others vs. M/s.Swaika Properties and another)
2. 1994 (4) SCC 711 (Oil and Natural Gas Commission vs. Utpal Kumar Basu and others)
3. 2002 (1) SCC 567 (Union of India and others vs. Adani Exports Limited and another)
17. Per contra, the learned counsel appearing for the respondent/plaintiff in support of his contentions, would submit that a part of cause of action has arisen within the jurisdiction of this Court as the E-Auction was conducted by MSTC in Chennai. The plaintiff paid the EMD amount in Chennai, confirmation of the sale of materials was made in Chennai in favour of the plaintiff, the sale order was issued in Chennai, etc. Thereafter he relied on the following judgments:
1. 1989 (2) SCC 163 (A.B.C. Laminart Private Limited and another vs. A.P.Agencies, Salem)
2. 1991 (4) SCC 270 (Patel Roadways Limited, Bombay vs. Prasad Trading Company with Patel Roadways Limited, Bombay vs. Tropical Agro Systems Private Limited and another)
3. 2008 (2) CTC 699 (Eastern Coalfields Limited and others vs. Kalyan Banerjee)
18. Let me first consider the law laid down by the judgments referred to by the learned counsel on either side.
19. In 1985 (3) SCC 217 (cited supra), the Hon'ble Supreme Court has held that mere service of notice on the respondents at their Registered Office within the territorial limits of State of West Bengal, could not give rise to a cause of action within that territory unless the services of such notice was an integral part of the cause of action. The entire cause of action culminated in the classification of land arose within the territorial jurisdiction of Rajasthan High Court at Jaipur Branch. Therefore, for the remedy by way of grant of relief, the respondents should have filed a Writ Petition before the Jaipur Bench of Rajasthan High Court and not before the Calcutta High Court challenging the notification.
20. In 1994 (4) SCC 711 (cited supra), the Hon'ble Supreme Court held that the advertisement mentioned that tenders should be submitted to EIL, New Delhi and that would be scrutinized at New Delhi and a final decision whether or not to award the contract to the tenderer would be taken at New Delhi, but the execution of the contract work was to be carried at Hazira in Gujarat. Therefore, merely because the company read and became aware of the advertisement at Calcutta and submitted the offer and made representations from Calcutta would not constitute facts forming an integral part of cause of action. Therefore, it cannot be said, part of cause of action arose within the jurisdiction of the Calcutta High Court.
21. In 2002 (1) SCC 567 (cited supra), the Hon'ble Supreme Court has held as follows:
"15. Article 226(2) of the Constitution of India which speaks of the territorial jurisdiction of the High Court reads : -
"226. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
16. It is clear from the above constitutional provision that a High Court can exercise the jurisdiction in relation to the territories within which the cause of action, wholly or in-part, arises. This provision in the Constitution has come up for consideration in a number of cases before this Court. In this regard, it would suffice for us to refer to the observations of this Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu (SCC at p.713) wherein it was held :
Under Article 226 a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. The expression 'cause of action' means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial."
22. All the above said judgments were rendered while considering the maintainability of a Writ Petition filed under Article 226 to ascertain whether there was any cause of action that occurred in that High Court. Therefore, these judgments are not helpful to decide the case on hand.
23. In 1989 (2) SCC 163 (cited supra), the Hon'ble Supreme Court has held as follows:
"15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of, its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the Law of Contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors.
22. Coming to clause 11 we already found that this clause was included in the general terms and conditions of sale and the order of confirmation No. 68/59 dated October 2, 1974 with the general terms and conditions was sent from Udyognagar, Mohamadabad, Gujarat to the respondent's address at 12 Suramangalam Road Salem, Tamilnadu. The statement made in the Special Leave Petition that Udyognagar, Mohamadabad, Gujarat is within the jurisdiction of the Civil Court of Kaira has not been controverted. We have already seen that making of the contract was a part of the cause of action and a suit on a contract therefore could be filed at the place where it was made. Thus Kaira court would even otherwise have had jurisdiction. The bobbins of metallic yarn were delivered at the address of the respondent at Salem which, therefore, would provide the connecting factor for Court at Salem to have jurisdiction. If out of the two jurisdictions one was excluded by Clause 11 it would not absolutely oust the jurisdiction of the Court and, therefore, would not be void against public policy and would not violate sections 23 and 28 of the Contract Act. The question then is whether it can be construed to have excluded the jurisdiction of the Court at Salem. In the clause 'any dispute arising out of this sale shall be subject to Kaira jurisdiction' ex facie we do not find exclusionary words like 'exclusive', 'alone', 'only' and the like. Can the maxim 'expressio unius est exclusio alterius' be applied under the facts and circumstances of the case? The order of confirmation is of no assistance. The other general terms and conditions are also not indicative of exclusion of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction under law through connecting factor of delivery of goods thereat was expressly excluded. We accordingly find no error or infirmity in the impugned judgment of the High Court."
24. In 1991 (4) SCC 270 (cited supra), the Hon'ble Supreme Court has held as follows:
"9. Clauses(a) and (b) of Section 20 inter alia refer to a court within the local limits of whose jurisdiction the defendant inter alia "carries on business". Clause (c) on the other hand refers to a court within the local limits of whose jurisdiction the cause of action wholly or in part arises. It has not been urged before us on behalf of the appellant that the cause of action wholly or in part arose in Bombay. Consequently clause (c) is not attracted to the facts of these cases. What has been urged with the aid of the Explanation to Section 20 of the Code is that since the appellant has its principal office in Bombay it shall be deemed to carry on business at Bombay and consequently the courts at Bombay will also have jurisdiction. On a plain reading of the Explanation to Section 20 of the Code we find an apparent fallacy in the aforesaid argument. The Explanation is in two parts, one before the word "or" occurring between the words "office in India" and the words "in respect of" and the other thereafter. The Explanation applies to a defendant which is a corporation, which term, as seen above, would include even a company such as the appellant in the instant case. The first part of the Explanation applies only to such a corporation which has its sole or principal office at a particular place. In that event the courts within whose jurisdiction the sole or principal office of the defendant is situate will also have jurisdiction inasmuch as even if the defendant may not be actually carrying on business at that place, it will "be deemed to carry on business" at that place because of the fiction created by the Explanation. The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place. The words "at such place" occurring at the end of the Explanation and the word "or" referred to above which is disjunctive clearly suggest that if the case falls within the latter part of the Explanation it is not the Court within whose jurisdiction the principal office of the defendant is situate but the court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office".
14. There may be only one extra-ordinary situation in which this interpretation may cause an apparent anomaly. This is where the plaintiff has also his/its place of business at the same place as the corporation but the cause of action has arisen at some other place. The above interpretation would preclude him from filing a suit in that place of business common to both parties and compel him to go to a court having jurisdiction over the place where the cause of action has arisen. But this is not really a hardship because such plaintiff must have had some nexus or connection with the place since some part of the cause of action had arisen there; if he can have dealings with the corporation at such a place giving rise to the cause of action, there is no reason why he should find it disadvantageous or difficult to file a suit at such place. Equally, the corporation, having a subordinate office at the place, will suffer no disadvantage.
15. In this view of the matter since in the instant two cases clause (c) is not attracted to confer jurisdiction on courts at Bombay and the appellant has admittedly its subordinate offices at the respective places where the goods in these two cases were delivered to it for purpose of transport the courts at Bombay had no jurisdiction at all to entertain the suits filed by the respondents and the parties could not confer jurisdiction on the courts at Bombay by an agreement. Accordingly no exception can be taken to the findings in this behalf recorded by the trial court and the High Court in these two cases."
25. In 2008 (2) CTC 699 (cited supra), the Hon'ble Supreme Court has held as follows:
"7. 'Cause of action', for the purpose of Article 226(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a writ petition can be allowed.
The question to some extent was considered by a Three-Judge Bench of this Court in Kusum Ingots & Alloys Ltd. v. Union of India and Another 2004 (3) CTC 365 : 2004 (6) SCC 254, stating:
"18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court."
As regards the question as to whether situs of office of the appellant would be relevant, this Court noticed decisions of this Court in Nasiruddin v. State Transport Appellate Tribunal [AIR 1976 SC 331] and U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow vs. State of U.P. and others, [(1995) 4 SCC 738], to hold:
"26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression "cases arising" in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.
27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority."
10. In Uttaranchal Forest Rangers' Assn. (Direct Recuirt) and Others v. State of U.P. and Others, [(2006) 10 SCC 346], this Court held:
"44. The second impugned order dated 12-4-2004 is further vitiated for the following reasons:
(a) Forum:- The seniority list under challenge in the second writ petition was the seniority list of the Uttaranchal State Government of 2002 and such challenge could not have been made before the Lucknow Bench of the Allahabad High Court.
(b) Parties:- None of the direct recruits who would be directly affected by the order were made parties to the writ petition. Therefore the High Court did not have the benefit of competing arguments in the matter. Even though, the Principal Secretary of the State of Uttaranchal was made a party, the said party was never served. The only respondent which was heard was the State of U.P. which had no stake in the matter at all since all of the writ petitioners before the Lucknow Bench of the Allahabad High Court were employees of the State of Uttaranchal on the relevant date. It is, therefore, evident that the relevant material was not placed before the Allahabad High Court for the purpose of deciding the writ petition. Accordingly, the permission had to be taken from this Court by the present appellants to prefer the SLPs."
These directions are authorities for the proposition that only that court will have jurisdiction within which, the entire cause of action had arisen. In this case, no part of cause of action arose within the jurisdiction of the Calcutta High Court."
26. In so far as the judgment reported in 1989 (2) SCC 163 (cited supra) is concerned, the same is distinguishable on facts because, there, the trial court already framed the issues and out of which there is an issue with regard to the jurisdiction of the Court to entertain the suit.
27. The other judgment reported in 1991 (4) SCC 270 (cited surpa) is also distinguishable on facts and the judgment reported in 2008 (2) CTC 699 (cited supra) also arose in a Writ Petition filed under Article 226 of the Constitution of India and therefore, that will also not clinch the issue that arises in the present case.
28. As this Application No.3741 of 2010 has been filed by the defendants 1 to 4 under Order VII Rule 11 CPC to reject the plaint in C.S.No.271 of 2010, it is useful to refer to Order VII Rule 11. It reads as follows:
11. Rejection of plaint:
The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;] [(f) where the plaintiff fails to comply with the provisions of rule 9];
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] HIGH COURT AMENDMENT (Madras): For Clause (c) substitute the following:
"(c) Where the relief claimed is property valued but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time if any, granted by the Court".
29. A perusal of the above clauses will make it very clear that a plaint shall be rejected where it does not disclose the cause of action, where the relief claimed is undervalued and the plaintiff is directed to do the valuation within the time and if the plaintiff failed to do so, where the relief claimed is properly valued but insufficiently stamped and the plaintiff does not make good the deficiency within the time, where the suit appears to be barred by any law, where it is not filed in duplicate and where the plaintiff failed to comply with the provisions of Rule 9.
30. It is equally settled that it is the plaint averments alone should be considered and not any other supporting materials including the counter filed by the other side in an application filed under Order VII Rule 11 CPC. Therefore, if the plaint averments are perused carefully in a meaningful way, it will undoubtedly establish the cause of action and it is not barred by any law. In such circumstances, no case is made out to reject the plaint under Order VII Rule 11.
31. The grievance of the defendants seems to be that this Court does not have any territorial jurisdiction as the entire cause of action arose outside its jurisdiction. Therefore, what is being questioned in the application is want of territorial jurisdiction. Such a question cannot be maintained under Order VII Rule 11 CPC and the question of territorial jurisdiction is a mixed question of fact and law, for which, necessary and proper issue is to be framed by the Court and thereafter findings are to be given on the combination of the evidence let in between the parties. Therefore, at this stage, it is not open to the defendants to question the territorial jurisdiction, that too, under Order VII Rule 11 and therefore, I have no hesitation in holding that there are no merits in A.No.3741 of 2010 and accordingly, the same is dismissed. No cost.
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