Transasia Bio-Medicals Ltd. vs Revijay Clinical Laboratory And ...
2003 Latest Caselaw 459 Bom

JUDGMENT

D.K. Deshmukh, J.

1. Appellant in all these Appeals is the same, the question that arises for consideration in all these Appeals is the same, therefore, all these Appeals can be conveniently disposed of by a common order.

2. The facts that are relevant and material for deciding these appeals are that the Plaintiff/ Appellant filed summary suit No. 2385 of 2000. M/s. Revijay Clinical Laboratory & Hospital was the Defendant in the suit. According to averments in the plaint, the Defendant had placed an order with the Plaintiff in Mumbai for supply to the Defendant certain goods. A copy of the invoice dated 30th August, 1997 was filed with the plaint at Exh.A. According to the Plaintiff, goods were supplied by the Plaintiff to the Defendant vide despatch note dated 20-6-1997, which were duly received by the Defendant. The Defendant also paid part of price of the goods, but the balance amount of Rs. 4,15,000/- was not paid by the Defendant. Therefore, demand notice dated 22nd September, 1999 was served. But still the payment was not made. Therefore, the summary suit was filed for recovery of the amount. The Plaintiff claimed that the oral contract between the Plaintiff and the Defendant for sale of instruments was made in Mumbai, part payment was also received by the Plaintiff in Mumbai, goods were also despatched from Mumbai, invoice was also raised from the office of the Plaintiff in Mumbai. It was stated that part of the cause of action has arisen in Mumbai and therefore, the suit can be instituted before this Court by taking leave of the court. Plaintiff sought a decree in the amount of Rs. 6,22,522/- with interest on the amount of Rs. 4,15,000/- from the date of institution of the suit till realisation.

The Plaintiff has also filed summary suit No. 2386 of 2000 against the Defendants M/s. Tamilnad Hospital Ltd. & Mr. E.S. Sreshta. According to averments in the plaint, pursuant to the order placed by the Defendant in Mumbai certain equipments were sold by the Plaintiff to the Defendants. According to the Plaintiff, instruments were despatched from Mumbai and were received by Defendants. The price of equipments was Rs. 6,35,380/-. The Plaintiff filed with the plaint a copy of the invoice as also the despatch note. According to the Plaintiff, the Defendants did not make payment of the price of the goods, therefore, demand notices were issued. However, still payment was not made, therefore the suit was instituted. According to the Plaintiff, the oral contract for sale of the instruments was arrived at Mumbai. Instruments were despatched by the Plaintiff to Defendants from Mumbai, invoices and despatch notes were also sent by the Plaintiff from Mumbai. According to the Plaintiff, therefore, part of cause of action has arisen in Mumbai and therefore with the leave of the Court the suit can be instituted in this Court.

It appears that the Plaintiff had instituted one more suit being summary suit No. 2388 of 2000. The Defendant was M/s. Sai Blood Bank & Clinical. Lab. According to averments in the plaint, the Plaintiff as per the order placed by Defendants on the Plaintiff had sold instruments worth Rs. 7,40,000/- to the Defendants. Defendants paid part of the amount of consideration i.e. Rs. 5,40,000/-, but the balance amount was not paid. The Plaintiff filed with the plaint invoices under which goods were sold as also copy of installation report. Despite the demand notice being served the balance amount of consideration was not paid, therefore, the suit was instituted. According to averments in the plaint, the oral contract for sale was arrived at in Mumbai. Part payment was made in Mumbai, invoices were raised from Mumbai office of the Plaintiff, therefore, according to the Plaintiff part of cause of action has arisen in Mumbai and therefore with the leave of the Court suit can be instituted in this Court.

3. The Plaintiff took out three petitions in three suits under Clause XII of the Letters Patent of this Court. Three petitions were moved before the learned single Judge of this Court. According to averments in the memorandum of Appeal, when three petitions were moved before the learned single Judge of this Court, the learned Single Judge was of the opinion that as on the invoice there is a note "subject to Mumbai jurisdiction" no leave was necessary and therefore the learned single Judge did not pass any order on the petitions taken out by the Appellant under Section XII of the Letters Patent. The plaintiff after writ of summons was served on the Defendants took out summonses for judgment in all the three suits. Those summonses for judgment have been decided by the learned single Judge. The order passed by the learned single Judge in Suit No. 2385 of 2000 and Suit No. 2386 of 2000 is dated 15-7-2002 and the order passed in Suit No. 2388 of 2000 is dated 12-8-2002. The main order has been passed by the learned single Judge is summons for judgment No. 783 of 2000 taken out in summary suit No. 2385 of 2000. The learned single Judge has held that as it was the case of the Plaintiff that part of cause of action has arisen in Mumbai, it was necessary to secure leave under Clause XII of the Letters Patent, and as the leave under Clause XII of the Letters Patent has not been secured by the Plaintiff, the Defendants are entitled to unconditional leave to defend the suit. The learned single Judge has noted that the Plaintiff had taken out a petition under Clause XII of the Letters Patent for securing leave of the court to institute the suit, but no order was passed by the learned single Judge dealing with the matter because he was of the opinion that leave is not necessary. The learned single Judge has also observed that failure to pass an order on the petition taken out under Clause XII of the Letters Patent has resulted in injustice to the Plaintiff. But the Court noted that leave under Clause XII of the Letters Patent has to be obtained by the party before institution of the suit and there can be no post facto grant of leave to institute a suit under Clause XII of the Letters Patent and therefore unconditional leave to defend was granted. In the summonses for judgment taken out in the other two suits detailed order was not passed and for the reasons recorded in the order passed in summons for judgment No. 783 of 2000 unconditional leave to defend was granted to the Defendants. The present Appeals are directed against the above referred orders of the learned single Judge.

4. The learned Counsel appearing for the Appellant submits that even according to the Plaintiff in spite of clear stipulation in the invoice "subject to Mumbai jurisdiction", as only part of cause of action has arisen in Mumbai leave under Clause XII was necessary and averments to that effect has been made in the plaint. The Plaintiff also took out a petition for securing leave under Clause XII, but according to learned Counsel, the learned single Judge who was taking up petitions under Clause XII was of the opinion that because of note in the invoices "subject to Mumbai jurisdiction" no leave was necessary and therefore the learned Judge did not pass any order on the Petition taken out under Clause XII of the Letters Patent, with the result that petition is still pending before this Court. The learned Counsel submits that this position is born out by the record of this court, in any case, this position is not disputed by the Defendants as is clear from the order passed by the learned single Judge. Therefore, according to the learned Counsel on finding that leave under Clause XII is necessary, the learned single Judge should have taken up for consideration the petition filed by the Petitioner under Clause XII of the Letters Patent for leave. According to the learned Counsel, the failure of the learned single Judge to take up for consideration the petitions filed under Clause XII of the Letters Patent by the Plaintiff, which are still pending before this Court for consideration has resulted in failure of injustice, in as much as, unconditional leave to defend against the Plaintiff has been granted by the learned single Judge for no fault of the Plaintiff. According to the learned Counsel for failure of this Court to pass appropriate orders on the petitions taken out by the Plaintiff under Clause XII prejudice can not be caused to the interest of the Plaintiff. In support of this submission the learned Counsel relies on a judgment of the Supreme Court in the case of A.R. Antulay v. R.S. Nayak and Anr., .

5. The learned Counsel appearing for the Defendants on the other hand supports the order passed by the learned single Judge. According to learned Counsel appearing for Defendants even according to the Plaintiff leave under Clause XII was necessary, in fact, no such leave has been granted by the Court. Settled law is in case a suit can be instituted in this Court after obtaining leave under Clause XII, institution of the suit without securing leave under Clause XII is itself illegal and therefore the learned single Judge has rightly granted unconditional leave to defend the suit to the Defendants. The learned Counsel also submitted that in fact no part of cause of action has arisen in Mumbai, therefore leave under Clause XII could not have been granted in favour of the Plaintiff.

6. Perusal of the record shows that the Plaintiff had in fact taken out three petitions under Clause XII of the Letters Patent seeking leave of the Court for instituting the suit in this Court. It is also born out from the record that all these three petitions were moved before the learned single Judge of this Court for appropriate orders. The record further shows that on the record an order has been scribed, which shows that leave under Clause XII of the Letters Patent has been granted, but the order has not been signed by the learned Judge. The Appellant has stated in the memorandum of appeal "The learned Trial Judge ought to have considered that the Appellants had moved an application under Clause XII of Letters Patent before His Lordship Justice Mr. Batta, and that on that application endorsement was there granting leave. In fact His Lordship did not sign the endorsement, because he came to the conclusion that in view of the terms, "subject to Mumbai Jurisdiction" mentioned on the invoice, no leave was required. In fact His Lordship stated so in the open Court." These averments made in the memorandum of appeal are born out from the record of the Court. This position is also not disputed by the Defendants. It is clear from the order of the learned single Judge impugned in these Appeals that this position was also not disputed before the learned single Judge and therefore he has observed in his order that failure on the part of the learned single Judge of passing an order on petitions filed under Clause XII has resulted in some injustice to the Plaintiff.

7. In these circumstances, therefore, the question that arises for consideration is whether injury can be allowed to be caused to the interest of the Plaintiff for an act of the Court, because even according to the Plaintiff, as is borne out from the averments in the plaint and the conduct of the Plaintiff of taking out petitions under Clause XII of Letters Patent securing of leave under Clause XII was necessary. The Plaintiff had done everything within its power to secure that leave, but the Court did not pass any order on those Petitions, because the Court was of the opinion that in view of the endorsement on the invoices "Subject to Mumbai Jurisdiction", it was not necessary for the Plaintiff to secure any leave under clause XII. In our opinion, therefore, in this situation, the learned single Judge in stead of granting unconditional leave to defend to Defendants ought to have taken up for consideration the petitions filed by the Plaintiff under Clause XII of the Letters Patent first before deciding the summons for judgment and ought to have decided that petitions first and thereafter ought to have taken up the summons for judgment for consideration. Because the petitions filed by the Plaintiff under Clause XII are still pending before this Court and have not been disposed of by making order either granting leave or refusing leave. It is abundantly clear from the record that there was a clear mistake committed by the Court in not making an order one way or the other on the petitions filed by the Plaintiff under Clause XII. In our opinion, the first and highest duty of the Court is to take care that the act of the Court does not injury to any litigant. The procedure of the Court has been prescribed to facilitate the justice and it should not be so construed or used to penalise the litigants for no fault of theirs. The Supreme Court in its judgment in A.R. Antulay's case referred to above has quoted with approval following observations of Lord Buckmaster in (1917) AC 170: (AIR 1917 PC 142):

"All rules of Court are nothing but provisions intended to secure proper admiistration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose."

The Supreme Court has referred to maxim "actus curiae neminem gravabit" and has observed in paragraph 105 of this judgment in A.R. Antulay's case that:

Indian authorities are in abundance to support the view that injustice done should be corrected by applying the principle actus curiae neminem gravabit an act of the court shall prejudice no one.

8. It is clear that it is was a mistake committed by the Court in not passing an order on the petitions taken out by the Plaintiff under Clause XII of the Letters Patent and therefore for that error or mistake committed by the Court, the Plaintiff can not be allowed to suffer. Once we reach the satisfaction that it was a mistake committed by the Court, in our opinion, it is not only appropriate but also the duty of the court to rectify the mistake by exercising inherent powers and there are no fetter on the powers of the Court in correcting its mistake which resulted in injury to the litigant for no fault of the litigant. Following observations in paragraph 106 of the judgment of the Supreme Court in A.R. Antulay's case, in our opinion, are pertinent:

To err is human, is the oft quoted saving. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its stains or authority Perhaps it would enhance both.

9. Taking overall view of the matter, therefore, in our opinion, it would be appropriate for us to take up for consideration the petitions filed by the Plaintiff under Clause XII of the Letters Patent. A petition filed under Clause XII of the Letters Patent is to be considered on the basis of an averment made in the plaint and the documents accompanying the plaint. In so far as this aspect of the matter is concerned, in paragraph XII of Summary Suit No. 2385 of 2000 the Plaintiff has stated thus:

12. The Plaintiffs have their Registered office in Mumbai. The oral contract between the Plaintiffs and Defendant for sale of the aforesaid instrument was made in Mumbai. The part payment of Rs. 1,60,000/- was made by the Defendant and received by the Plaintiff in Mumbai. The Medical Instrument was despatched by the Plaintiff to the Defendant from Mumbai. The invoice was raised from the Mumbai office of the Plaintiff. The suit is for recovery of the Plaintiff dues which is within the pecuniary jurisdiction of this Hon'ble Court, therefore part of cause of action has arisen in Mumbai, the Defendant has its Registered Office at Coimbatore, therefore with the leave of this Hon'ble Court has jurisdiction to entertain and try this suit.

Similar averments have been made in the other two summary suits. Perusal of invoices filed by the Plaintiff also shows that there is an endorsement on invoices that the payment is to be made in Mumbai. Therefore, it is clear, at least prima facie, that a part of cause of action would arise in Mumbai and therefore leave under Clause XII of the Letters Patent can be granted to the Plaintiff. However, we make it clear that though we have granted leave to the Plaintiff to institute a suit in this Court, it is without prejudice to the rights of the Defendants either to apply for revocation of that leave or to contend in their defence in the summons for judgment that this Court does not leave jurisdiction to entertain the suit as no part of cause of action has arisen in Mumbai.

10. Now, that we have granted leave under Clause XII of the Letters Patent, the only ground on which unconditional leave to defend was granted in favour of the Defendants by the learned single Judge by the orders impugned in these Appeals, disappears and therefore those orders will have to be set aside and are accordingly set aside.

Summonses for judgment taken out by the plaintiff in all the three suits are remitted back to the learned single Judge for denovo consideration and decision in accordance with law.

It is again made clear that it is open to the Defendants to apply either for revocation for leave granted under Clause XII of the Letters Patent before the learned single Judge taking up those matters and/or to contend in their defence in summonses for judgment that this court does not have territorial jurisdiction to entertain the suit because no part of cause of action has arisen within the territorial jurisdiction of this Court.

Appeals disposed of.