Transasia Bio-Medicals Ltd. vs Revijay Clinical Laboratory & ...
2002 Latest Caselaw 700 Bom

JUDGMENT

F.I. Rebello, J.

1. In answer to the summons for judgment, defendants have raised a plea that no permission was taken under Clause 12 of the Letters Patent and consequently this Court will have no jurisdiction to hear, decide and grant reliefs as prayed for. On the other hand on behalf of plaintiffs their learned counsel points out that in fact leave had been sought for. Leave however was not granted. It was thought that leave would not be required considering the clause in the invoice conferring jurisdiction on this Court. In A. B. C. Laminart Pvt. Ltd and Anr. v. A. P. Agencies, Salem, , the Apex Court has laid down the law that when the cause of action arises partly within the jurisdiction of two Courts, the clause in the contract conferring jurisdiction on one of the Courts and excluding jurisdiction on the other is legal. In other words parties to the contract under these circumstances can agree to confer jurisdiction on one of the two Courts. Under these circumstances, normally this Court would have jurisdiction to entertain the suit based on the pleadings in the plaint by the plaintiff. Pleas of the defendant could have only been considered on framing of issue under Section 9(A) of the Civil Procedure Code as it stands amended in this State.

2. The controversy, however, arises on account of Clause 12 of the Letters Patent of this Court. Clause 12 reads as under :--

"And we do further ordain that the said High Court of Judicature at Fort William in Bengal (Madras) (Bombay), in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction ..............."

3. From a reading of the said clause as reproduced above, and from the pleadings it would be clear that it is not the case of the plaintiffs that the entire cause of action has arisen within the jurisdiction of this Court. If that had been the case, no leave is necessary under Clause 12 of Letters Patent. The pleadings in the plaint show that part of the cause of action has arisen within the jurisdiction of this Court. Once that be the case the suit could not have been instituted without first taking permission under Clause 12. It is only on taking permission that the plaint could have been lodged. In these circumstances, the clause in the contract would be of no assistance to the plaintiffs. That would have come in aid if the suit has been filed and leave taken and a plea was raised, that this Court had no jurisdiction.

4. It is true that on failure to pass an order, has resulted in some injustice to the plaintiffs. Leave under Clause 12 however, is not merely an equitable consideration. It is the sine qua non for filing the plaint in this Court under circumstances set out in Clause XII. Apart from that, as has been decided by this Court, leave has to be taken before presenting the plaint or filing the suit. There can be no post facto grant of leave. Once this be the case, there arise serious triable issues.

5. In the light of that the defendants are entitled to unconditional leave to defend the suit. Suit transferred to list of commercial causes. Defendants to file written statement within 30 days from today. Inspection and discovery within four weeks thereafter.

Summons for judgment disposed of accordingly. No order as to costs.