Bombay High Court
M/S. Ketan Diesel Servies, Thr. ... vs M/S Varma Tradeink Prop. ... on 14 December, 2017
Bench: A. D. Upadhye
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION NO.126/2017
APPLICANT : M/s. Ketan Diesel Services
(Ori. Defendant) Through its Pop. Shri Mahendra Nandalal Malviya
On R.A. Nr. Dipa School Walcut Compound, Nand Dham
Complex Amravati, Distt. Amravati (M.S.).
...V E R S U S...
RESPONDENT : M/s Varma Tradeink Prop. Shailendra M. Varma
(Ori. Plaintiff) Through his power of attorney Holder
On R.A. Shri Roshansingh s/o Bhikamsingh Rajpur,
Aged about 43 years, Occu : Service,
R/o Plot No.128/129 Chaturbhuj Layout
Control Wadi, Nagpur.
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Shri Sawan Alaspurkar, Advocate for applicant
Shri P.K. Mishra, Advocate for respondent
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CORAM : ARUN D. UPADHYE, J.
DATED : 14/12/2017
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. The civil revision
application is heard finally with the consent of the learned Counsel for the
parties.
2. By this civil revision application, the applicant has prayed to
quash and set aside the order dated 14/9/2017, below Exh.12, passed by
the 10th Joint Civil Judge, Senior Division, Nagpur in Summary Civil Suit
No.10/2017.
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3. The brief facts of the case are as under : -
The respondent/plaintiff has filed Summary Civil Suit for
recovery of an amount of Rs.12,33,016/-. The plaintiff came with a case
that he is authorized distributor of Automotive spare parts manufactured
by "Bosch India Company Ltd., (Automotive Sector) Bangalore. The
applicant/defendant - M/s Ketan Diesel Services was also authorized by
the company to run the service station at Amravati. The case of the
plaintiff is that he has frequently supplied the spare parts manufactured
by Bosch India Company Limited to the defendant's firm M/s Ketan Diesel
Services at Amravati, as per his order placed with the plaintiff from time
to time. The plaintiff has also maintained the computerized account. It is
the case of the plaintiff that the applicant has issued a cheque bearing
No.000749 on 21/4/2016, drawn against his account
No.967530110000011 with Bank of India, Amravati Branch, Amravati,
payable at all branches of B.O.I. The plaintiff has presented the said
cheque for encashment on 14/6/2016 with ICICI bank having branch at
Wadi Nagpur, however, the same was dishonoured. The demand notice
through Advocate was also issued to the applicant. The plaintiff thus
constrained to file the present suit for recovery of amount under Order
XXXVII of the Code of Civil Procedure.
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4. The suit summons in Form No.4 (Appendix-B) was issued to
the defendant, hence, the applicant appeared in the suit. During the
pendency of the said suit, the applicant has filed application vide Exh.12
under Order VII Rule 10 of the Code of Civil Procedure for return of the
plaint and dismissal of the suit. In the application, it is contended that the
suit filed by the plaintiff is without jurisdiction and it cannot be tried by
the Court as there is no territorial jurisdiction as per the provisions of
Section 20 of the Code of Civil Procedure. It is also mentioned that
Amravati Court has only jurisdiction to entertain the suit.
5. The respondent/plaintiff has filed his reply and objected the
said application. It is the case of the plaintiff that the present application
is nothing but to prolong the matter. According to the plaintiff, the order
was placed at Nagpur, the material was also dispatched from Nagpur, the
cheque was also drawn at Nagpur and the office of the plaintiff is also at
Nagpur. Since cause of action arose at Nagpur, the Court of law at Nagpur
has jurisdiction to entertain the suit and the application be rejected.
6. After hearing the learned Counsel for both sides, the learned
10th Joint Civil Judge Senior Division, Nagpur by its order dated
14/9/2017 rejected the application (Exh.12) filed by the applicant. The
said order is impugned in the present civil revision application by the
applicant.
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7. I have heard the learned Counsel for the parties at length.
The learned Counsel for the applicant has vehemently submitted that as
per the provisions of Section 20 of the Code of Civil Procedure and more
particularly illustrations (a), the civil Court at Nagpur has no jurisdiction
to entertain the suit. He further submitted that the learned trial Judge has
wrongly rejected the application filed under Order VII Rule 10 of the Code
of Civil Procedure. According to him, the defendant is residing at
Amravati and the goods are also delivered at Amravati and therefore, the
Court at Amravati has only jurisdiction to entertain the suit. According to
him, merely because the cheque is dishonoured at Nagpur, the plaintiff
cannot get the right to file the suit at Nagpur. Lastly, it is submitted that
the impugned order be set aside by allowing the civil revision application.
8. Learned Counsel for the respondent has submitted that the
suit is filed under Order XXXVII of the Code of Civil Procedure. Summons,
under the said provision, in Form No.4 (Appendix-B) is issued. The
defendant has also a remedy to apply to the Court to defend the suit and
therefore, the present application (Ex.12) filed by the defendant is not
maintainable. He also pointed out that as per the provisions of Section 19
of the Code of Civil Procedure, the plaintiff has option to file the suit at
Nagpur as well as at Amravati. The plaintiff has chosen the place to file
the suit at Nagpur. He also submitted that the office of the plaintiff is at
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Nagpur, defendant has placed the order at Nagpur, account is maintained
at Nagpur, bill is generated at Nagpur and the cheque in question is also
dishonoured at Nagpur, hence, the civil Court at Nagpur has jurisdiction.
The learned trial Court has rightly rejected the application, hence, no
interference of this Court is called for. The civil revision application be
dismissed.
9. Considering the submissions of the respective parties and
having gone through the impugned order dated 14/9/2019 passed by the
10th Joint Civil Judge Senior Division, Nagpur, below Exh.12 in Summary
Civil Suit No.10/2017, I am of the view that no interference of this Court
is called for in the said order. It is to be noted that the Summary Civil Suit
No.10/2017 filed by the respondent/plaintiff for recovery of an amount of
Rs.12,33,016/- comes under the negotiable instrument. It is stated that in
the said suit summons, in Form No.4 (Appendix-B) under Order XXXVII
Rule 2 of the Code of Civil Procedure is issued. The defendant appeared in
the suit and filed the present application (Exh.12) for rejection of plaint.
The defendant instead of obtaining the permission to defend the suit
moved application under Order VII Rule 10 of the Code of Civil Procedure
for return of the plaint. It is to be noted that the present suit is filed under
the title "Summary Suit Under Order XXXVII of the Code of Civil
Procedure 1908 for recovery of sum of Rs.12,33,016/- below bill of
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exchange". Though the learned trial Judge has considered the said
application and after hearing both the sides has rightly rejected the
application. In view of the provisions of Order XXXVII of the Code of Civil
Procedure, it appears that the said application itself was not maintainable.
Nevertheless, the plaintiff has averred in the plaint that the cause of
action for filing the suit arose on 16/6/2016, when the cheque has been
dishonoured on presentation to the Bank and also made averment that
the goods were purchased on credit from Nagpur and price was payable at
Nagpur by the defendant and therefore, the civil Court at Nagpur has
jurisdiction to entertain the suit. The learned Counsel for the
respondent/plaintiff has also pointed out the provision of Section 19 of
the Code of Civil Procedure. As per the said provision, where a suit is for
compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one Court
and the defendant resides, or carries on business, or personally works for
gain, within the local limits of the jurisdiction of another Court, the suit
may be instituted at the option of the plaintiff in either of the said Courts.
10. In view of the said provision, the plaintiff has given option
to file the suit where the wrong is done or where the defendant resides or
carries on business or personally works for gain within the local limits of
the jurisdiction of another Court. The learned Counsel for the applicant,
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however, relied upon Section 20 of the Code of Civil Procedure and more
particularly illustration (a) and submitted that the Court at Nagpur has no
jurisdiction to entertain the present suit. He further submitted that the
defendant resides at Amravati and goods are delivered at Amravati but
only because the cheque is dishonoured at Nagpur does not give
jurisdiction to the Court at Nagpur. But the said submission cannot be
accepted. The averments made in the plaint explicit that the defendant
has made order of the spare parts of automobile at Nagpur, the property
is also delivered from Nagpur to Amravati and account of the transaction
is also maintained at Nagpur and hence, the Nagpur Court has jurisdiction
to entertain the suit filed by the plaintiff.
11. Learned Counsel for the applicant has relied upon the
judgment of the Hon'ble Apex Court, reported in (2003) 1 Supreme
Court Cases 557 (Saleem Bhai and others...Versus...State of
Maharashtra and others). In the said judgment, the Hon'ble Apex Court
has held that the germane facts for deciding such an application, held, are
the averments in the plaint and not the pleas taken in the written
statement. Hence, the trial Court's direction to the defendant to file the
written statement, without deciding his application under Order VII Rule
11, held as bad. He has also relied upon the judgment of this Court,
reported in 2004 (1) Mh.L.J. 50 (Shreyans Industries...Versus..State of
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U.P. and others). In the said judgment, this Court has held that while
deciding the issue of jurisdiction, findings are also given on other issues
on merits. In view of plaint being ordered to be returned for want of
jurisdiction, findings recorded on merits were without jurisdiction.
In the facts and circumstance of the case, both these rulings
are not applicable in the case at hand.
12. Learned Counsel for the respondent has relied upon the
judgment of this Court, reported in 2010 (5) Mh.L.J. 547 (Mallikarjun
Transport, Aurangabad and another...Versus...Dr. Babasaheb
Ambedkar Sahakri Sakhar Karkhana Ltd., Keshegaon, Osmanabad). In
the said ruling, it is held that the cause of action arose to the plaintiff
within territorial jurisdiction of two Courts. Plaintiff has an option to file
suit in either of the Courts.
13. In the instant case, the defendant is residing at Amravati and
the cause of action arose at Nagpur and therefore, both the Courts are
having jurisdiction to entertain the suit. Thus, the plaintiff has option to
file the suit in either of the Courts.
14. Considering the submissions of both the sides and after
going through the legal provisions, I am of the view that the order passed
by the learned 10th Joint Civil Judge, Senior Division, Nagpur, dated
14/9/2017, below Exh.12, in Summary Civil Suit No.10/2017 does not
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require any interference of this Court. The civil revision application filed
by the applicant/original defendant is devoid of any merit and liable to be
dismissed and accordingly the same is dismissed. Rule stands discharged.
No order as to costs.
JUDGE
Wadkar
