* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 26/2004
% 15th February, 2012
M/S FCL TECHNOLOGIES & PRODUCT LTD ..... Appellant
Through : Mr. Yudhvir B. Arya, Advocate.
versus
M/S ROLWELL PACKAGING PVT. LTD. ..... Respondent
Through : None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J. (ORAL)
1. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 26.9.2003 by which the trial Court dismissed the suit filed by the appellant/plaintiff, although the respondent/defendant was ex-parte in the trial Court, and the appellant/plaintiff succeeded in proving his case on merits. The suit was dismissed on the ground that the Courts at Delhi had no territorial jurisdiction to try the suit.
2. The facts of the case are that the appellant/plaintiff filed the subject suit for recovery of Rs.3,18,561.37/- against the respondent/defendant for RFA No.26/2004 Page 1 of 4 materials being manufacturing inks and adhesives which were supplied to the respondent/defendant. The respondent/defendant contested the suit by filing the written statement, however, in spite of opportunities being given, no evidence was led on behalf of the respondent/defendant. Rather, on 22.8.2003 learned counsel for the defendant sought permission to withdraw his vakalatnama which was allowed and the defendant was proceeded ex- parte vide order dated 22.8.2003.
3. With respect to the issue of territorial jurisdiction, which was issue No. 2, the trial Court has held that the Courts at Delhi had no territorial jurisdiction by making the following observations :-
" In the present case, defendant is admittedly carrying on his business at Kolkata which is not within the jurisdiction of this Court. From the perusal of the plaint as well as the invoices placed on record, it is revealed that plaintiff has supplied the material to defendant at Kolkata from its divisional office situated at NOIDA. There is nothing on record to show that orders for supplying the goods were placed with the plaintiff at Delhi office. As such, no cause of action has arisen at Delhi.
Plaintiff has tried to create jurisdiction of Court on the basis of two counts:
i) that the registered office of plaintiff is situated in Delhi.
ii) that there is stipulation in the invoice that all the dispute will be subject to Delhi jurisdiction.
The word incorporate in invoices that all disputes shall be subject to Delhi jurisdiction does not show anywhere that this condition was ever accepted by the defendant. To my mind, both these grounds are not sufficient to create the jurisdiction of this Court. Either the Court within whose jurisdiction the defendant is residing or from where the goods were supplied has only the RFA No.26/2004 Page 2 of 4 jurisdiction to entertain the present suit. In these regard, I am fortified by the judgment of our own Hon'ble High Court delivered in the case of Hindustan Fertilizer Corporation Ltd. Vs. Great Eastern Shipping Co. Ltd reported as 74(1998) Delhi Law times 82.
Considering the facts & circumstance of the case, I am of the view that this Court has no jurisdiction to entertain the present suit. Consequently, this issue is decided against the plaintiff and in favour of the defendant."
4. Learned counsel for the appellant has drawn my attention to the evidence by way of affidavit filed on behalf of the appellant/plaintiff to show that the Court at Delhi had territorial jurisdiction. It is argued that the Courts at Delhi had territorial jurisdiction because the orders were received at Delhi and payment as per Ex.PW-15 was received in Delhi. The relevant para of the evidence by way of affidavit reads as under:-
"10. I say, the orders were received and processed at Delhi and payments as per exhibit PW-15 were received by the plaintiff at Delhi. Further the parties had agreed that in case of any dispute only Delhi Courts shall have jurisdiction."
5. A reference to the cross-examination shows that no question was put with respect to the payment not having been made at Delhi. In fact, the averments in the evidence by way of affidavit on behalf of the appellant/plaintiff ought to have been believed, inasmuch as, no evidence was led on behalf of the respondent/defendant, who had remained ex-parte.
6. The trial Court has already held that the appellant/plaintiff had RFA No.26/2004 Page 3 of 4 otherwise proved its case on merits and which finding was correct because the invoices with respect to the supply of materials along with the carbon copy of the goods receipt were proved and exhibited as Ex.PW4 and Ex.PW5. The letters/reminders sent by the appellant/plaintiff to the respondent demanding the outstanding amount were proved and exhibited as Ex.PW8 to Ex.PW14. As already stated above, no evidence was led on behalf of the respondent/defendant.
7. In view of the above, the present appeal is accepted and the impugned judgment and decree dated 26.9.2003 is set aside. The suit of the appellant/plaintiff will stand decreed against the respondent/defendant for an amount of Rs.2,24,339/- along with interest @ 12% per annum simple from 1.1.2000 till the date of payment. Appellant will also be entitled to costs of this appeal. Decree sheet be prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J.
FEBRUARY 15, 2012 AK RFA No.26/2004 Page 4 of 4