Bombay High Court
Mount English Medium School vs Jeevandeep Edumedia Pvt. Ltd on 20 September, 2023
Bench: Amit Borkar
2023:BHC-AS:27727
22-wp-11565-2023.doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11565 OF 2023
WITH
WRIT PETITION NO.11566 OF 2023
SHABNOOR
AYUB
WITH
PATHAN
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2023.09.20
WRIT PETITION NO.11567 OF 2023
18:32:40 +0530
Mount English Medium School ... Petitioner
V/s.
Jeevandeep Edumedia Pvt Ltd. ... Respondent
Mr. Niranjan Bhavake i/by Bhavake & Associates, for
Petitioner.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 20, 2023
P.C.:
1. Challenge in all writ petitions under Section 115 of the Code
of Civil Procedure, 1908, is to order passed by the Trial Court
rejecting application under Order 7, Rule 11 of the Code of Civil
Procedure, 1908.
2. The respondent-original plaintiff has filed a suit for recovery
of amount under the provisions of Commercial Courts Act.
3. The petitioner had filed an application under Order 7, Rule
11(d) of the Code of Civil Procedure, 1908 raising issue of
limitation and jurisdiction. According to the petitioner, the last
22-wp-11565-2023.doc
invoice based on which the suit was filed on 27 March 2018;
however, suit is filed on 7 January 2022.
4. The second objection is regarding territorial jurisdiction of
the Court. According to him, the invoice contains a recital that
Court in Mumbai only has territorial jurisdiction to entertain the
suit.
5. The Trial Court relying on the judgment of the Apex Court in
the case of Prakash Corporate Vs. D. V. Projects Ltd. 2022 Live Law
(SC) 162, took cognizance of order passed by the Supreme Court
in Suo Moto Writ Petition (Civil) No.3 of 2020 excluding period
from 15 March 2020 till 2 October 2021.
6. According to learned Advocate for the petitioner, such
benefit was neither pleaded nor argued on behalf of plaintiff and,
therefore, Court could not have Suo Moto granted such benefit.
7. The said submission has no force as the judgment delivered
by the Apex Court has a force of law under Article 145 of the
Constitution of India. The Courts are always within their powers to
take cognizance of law even if not brought to their notice by the
parties.
8. In the facts of the case, the suit has been filed on 7 January
2020. The exclusion period has interpreted by the Apex Court in
Suo Moto Writ Petition (Civil) No.3 of 2020 started from 15 March
2020 and an ends on 2 October 2021; therefore, in view of
judgment of Apex Court in the case of Prakash Corporate (Supra),
rejection of application under Order 7, Rule 11(d) of the Code of
Civil Procedure, 1908 cannot be termed as error of jurisdiction
22-wp-11565-2023.doc
requiring interference under Section 115 of the Code of Civil
Procedure, 1908.
9. Moreover, it shall be open for the defendant to raise issue of
limitation during the course of trial and if such issue is raised, the
Trial Court shall decide such issue on its own merits.
10. The next issue of territorial jurisdiction raised by the
petitioner.
11. The Trial Court rejected the application holding that the
measure cause of action accrued within territorial jurisdiction of
the Trial Court.
12. It needs to be noted that the issue of territorial jurisdiction
being mixed question of law and fact, the parties needs to be given
opportunity to prove such issue during trial. Hence, no illegality
can be attributed to the order passed by the Trial Court while
rejecting application under Order 7, Rule 11(d) of the Code of
Civil Procedure. There is no merit in all the writ petitions.
13. All writ petitions are, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
