Bombay High Court
Indiabulls Housing Finance Ltd. ... vs Smt. Suman Wd/O Vithalrao ... on 21 September, 2017
Bench: S.B. Shukre
(Judgment) 2109 CRA 42-2017 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
CIVIL REVISION APPLICATION NO. 42/2017
Indiabulls Housing Finance Limited,
A Company established under Companies
Act, 1956, having its registered office at
Indiabulls House 448451, Udyog Vihar,
Phase-V, Gurgaon (Haryana),
Through its Authorized Officer,
Shri Mukesh Kakda. APPLICANT
.....VERSUS.....
Smt. Suman Wd/o Vithalrao Ikhankar,
Aged about 67 years,
R/o. 49-A, Hill Road, Gokulpeth,
Nagpur. RESPONDANT
Shri Shyam D. Dewani, counsel for applicant.
Shri S.P. Bodalkar, counsel for respondent..
CORAM: S.B. SHUKRE, J.
DATE : SEPTEMBER 21, 2017.
ORAL JUDGMENT :
Heard.
2] Rule. Rule made returnable forthwith.
3] Heard finally by consent.
(Judgment) 2109 CRA 42-2017 2/11
4] This application challenges the legality and
correctness of the order dated 22/07/2016, passed by
3rd Joint Civil Judge (Sr.Dn.), Nagpur in R.C.S. No.
220/2011, thereby finding that plaint could not be
rejected on the ground of lack of jurisdiction. By this
order, two applications, one filed at Exh.19 and other
filed at Exh.74 by the revision applicant, original
defendant no.1, respectively filed under Section 9-A of
the Civil Procedure Code (in short, "C.P.C.") and
under Order 7 Rule 11 of C.P.C., have been rejected.
5] The suit in the present case has been filed
by the respondent against the present applicant and
two more parties. This suit, being R.C.S. No.
220/2011 seeks various declarations, the main
declaration being that the mortgage deed executed by
the respondent of house property, bearing
Corporation House No. 304, Gokulpeth, Nagpur, is an
outcome of forgery and fraud played by the revision
applicant and it's officers, and therefore, it is not
binding upon the respondent. There are other
declarations also, which declarations, basically flow
(Judgment) 2109 CRA 42-2017 3/11
from the main declaration. These declarations have
been sought on the basis of the terms and conditions
of the loan agreement executed between the
respondent and the present applicant. In other words,
suit filed by the respondent against this applicant and
two others, is based upon the loan agreement
executed between them. There is also no dispute
about this fact. On appearance of the applicant in the
civil suit, applicant filed an application under Section
9-A of C.P.C. praying for framing of a preliminary
issue on the question of jurisdiction of the civil court
at Nagpur and deciding it as such. Later on, the
applicant also filed another application at Exh.74
under Order 7 Rule 11 of the C.P.C. seeking rejection
of the plaint. In the application at Exh.19, it was
contended by the applicant that in view of the
provisions of Sections 34 and 17 of The Securitization
and Reconstruction of Financial Assets and
Enforcement of Security Interest Act (in short,
"Securitization Act), the civil court's jurisdiction was
barred and that a specific remedy was also provided
for redressal of the grievance, such as the one
(Judgment) 2109 CRA 42-2017 4/11
involved in the present suit. The application vide
Exh.74 was moved on the grounds that in the loan
agreement, there is an arbitration clause and that the
parties submitted themselves only to the jurisdiction
of the courts at Delhi. However, these applications
were rejected by the trial court by the impugned order
and this is how the present civil revision application
has been filed by the applicant, the original defendant
no.1.
6] Shri Dewani, learned counsel for the
applicant, submits that an Arbitrator has already been
appointed and the respondent has also appeared
before the Arbitrator. He further submits that under
the loan agreement, the Courts at Delhi only have
been conferred with the jurisdiction to entertain the
dispute arising out of the loan agreement. In support,
he invites my attention to the relevant clauses in the
loan agreement and also the findings recorded in this
regard by the learned District Judge in M.C.A. No.
148/2012 on 11/04/2013, which now have attained
the finality. He also points out that these aspects of
(Judgment) 2109 CRA 42-2017 5/11
the matter have not been dealt with in any manner in
the impugned order. But according to him, the fact
remains that there is already a finding recorded by the
learned District Judge, which goes to show that only
Delhi Courts would have jurisdiction in the matter.
Thus, he prays for quashing of the impugned order.
7] The learned counsel for the respondent,
original plaintiff, submits that there were three
proceedings initiated by the applicant itself in the year
2009 and 2010 before the District Judge, Nagpur and
those proceedings were Revenue Case Nos. 25/2009
and 18/2010 and S.A. No. 50/2010. He submits that
these proceedings arose from the dispute between the
parties, based upon the loan agreement and initiation
of such proceedings at Nagpur only indicates that the
applicant waived his right in respect of the jurisdiction
of Delhi Courts and submitted himself to the
jurisdiction of Nagpur Civil Court. He also points out
that a fraud has been played upon the respondent by
the applicant and as the issue of fraud is involved,
Nagpur Court, would have the jurisdiction in the
matter.
(Judgment) 2109 CRA 42-2017 6/11
8] I would have accepted the argument of the
learned counsel for the respondent, had there been no
conclusion of the issue regarding exclusive jurisdiction
of Delhi Courts finally in the present case. There is no
dispute about the fact that whatever has been sought
in the present suit arises out of the loan agreement
executed between the respondent and the applicant.
Therefore, it has to be seen as to what the applicable
clauses in the agreement say about the jurisdiction of
the court and the manner of resolution of the disputes
between the parties.
9] Clause nos.21 and 22 are relevant in the
context of jurisdiction of courts. Clause 21 is to the
effect that if any dispute or difference arises on any
matter relevant to or arising out of the present
agreement, it shall be regard to the sole arbitration of
an Arbitrator to be appointed by the applicant, whose
decision shall be final and binding upon the parties.
It also says that sole Arbitrator shall conduct the
arbitration proceeding at New Delhi/Delhi.
Clause 22 is on the jurisdiction of the Court and it lays
down that the Courts at Delhi shall have exclusive
(Judgment) 2109 CRA 42-2017 7/11
jurisdiction (subject to the arbitration proceedings
which are also to be conducted at Delhi) over any or
all disputes arising out of this agreement and the
parties hereby submit themselves to the jurisdiction of
such Courts and/or Tribunals.
10] One of these clauses has been interpreted
by a District Court at Nagpur. The clause is no.22. In
respect of this clause, in M.C.A. No. 148/2012,
decided by the Principal District Judge, Nagpur on
11/04/2014, which was an application filed under
Section 14(1) of the Arbitration and Conciliation Act,
1996 by the respondent seeking termination of the
mandate of the Arbitrator appointed in the present
case, the learned District Judge found that Section 28
of the Indian Contract Act did not come in the way
when the parties agreed to confer jurisdiction on the
Courts at New Delhi and that the applicant could not
have been said to have submitted to the jurisdiction of
Courts at Nagpur. These findings attained their
finality when Writ Petition No. 3444/2015 preferred
by the partnership firm of the respondent challenging
them, was disposed of as withdrawn by the learned
(Judgment) 2109 CRA 42-2017 8/11
Single Judge of this Court on 16/09/2015. After
withdrawal of this petition, there can be no doubt that
the finding so recorded by the learned District Judge
regarding exclusive jurisdiction of Delhi Courts in the
present matter has attained finality. So, now it would
not be open for the respondent to say that even the
Courts at Nagpur would have jurisdiction in the
present case.
11] The other argument that the applicant had
waived it's right in respect of the jurisdiction of Delhi
Courts and submitted itself to the jurisdiction of
Nagpur Courts, I must say, also loses it's force after
disposal of the writ petition by this Court on
16/09/2015. In fact, this argument was also
considered by the learned Principal District Judge and
rejected by him. This finding of the learned District
Judge has also attained finality now after disposal of
the aforesaid writ petition by this Court.
12] A perusal of the impugned order discloses
that these facts and aspects of the matter have not
been considered at all by the trial court. In normal
(Judgment) 2109 CRA 42-2017 9/11
course, I would have preferred to remand the matter
to trial court for a decision afresh in such a case. But,
the peculiar facts and circumstances of the case hold
me back on adopting such a course. The reason is
obvious. Once it is found that the issue of exclusive
jurisdiction of Delhi Court has been conclusively
decided and has attained finality, there is no point in
relegating the parties to the trial court for getting
something which is already manifest on record.
13] In view of above, I am of the opinion that
the impugned order to the extent it finds Nagpur Civil
Court has jurisdiction, cannot be sustained in law and
it deserves to be quashed and set aside, keeping the
other issues open for argument and adjudication.
14] By this order, I have only found that as the
parties have submitted themselves to the exclusive
jurisdiction of Delhi Courts, the parties have to be
kept bound to what they have already agreed between
themselves and nothing more. I do not wish to record
any finding in respect of all other objections as
regards the arbitrability or otherwise of the dispute
(Judgment) 2109 CRA 42-2017 10/11
and bar of jurisdiction of the civil court by virue of the
provisions of Sections 34 and 17 of the
Securitization Act, for, that is not necessary. These
issues have to be left open to be adjudicated upon by
the appropriate forum.
15] The learned counsel for the respondent has
placed his reliance upon the case of A.V.M. Sales
Corporation -Vs- Anuradha Chemicals Pvt. Ltd.
(2012) 2 Supreme Court Cases 315, wherein it is
held that, parties cannot contract against statute. This
law has been considered by the larger Bench which
decided the case of Swastik Gases Pvt. Ltd. -Vs-
Indian Oil Corporation Ltd., (2013) 9 Supreme
Court Cases 32 and it has been observed (para 27)
that when two Courts at two different places have the
jurisdiction to try the suit and that there is an
exclusivity clause in the agreement, the jurisdiction of
that court which has been excluded by the agreement
executed between the parties, would stand ousted. So,
this law, I would say does not support the case of the
respondent, rather supports the case of the applicant.
(Judgment) 2109 CRA 42-2017 11/11
16] In the circumstance, the Civil Revision
Application is allowed.
17] The impugned order is hereby quashed and
set aside to the extent it holds that Nagpur Civil
Courts have jurisdiction.
18] The application at Exh.74 is allowed on the
ground that only Delhi Courts have exclusive
jurisdiction in the matter.
19] All other issues are kept open for argument
and adjudication.
20] The plaint be returned to the respondent
for being presented to the appropriate forum.
21] Parties to bear their own costs.
JUDGE
Yenurkar
