Calcutta High Court
Savita Agarwal vs Civil Engineering Enterprises ... on 31 July, 2023
ORDER SHEET
OCD-11
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
[COMMERCIAL DIVISION]
IA No. GA/1/2021
In
CS/117/2021
SAVITA AGARWAL
VERSUS
CIVIL ENGINEERING ENTERPRISES PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 31st July, 2023.
Appearance:
Mr. Chayan Gupta, Adv.
Mr. Sayantan Chatterjee, Adv.
Mr.Pourush Bandyopadhyay, Adv.
Mr. Shameek Ray, Adv.
Mr. Niket Ojha, Adv.
For the plaintiff/petitioner.
Mr. Suman Dutt, Adv.
Mr. Rohit Banerjee, Adv.
Ms. Shrayashee Das, Adv.
For the defendant/respondent.
The Court:- In a suit for recovery of unpaid price of goods sold and
delivered allegedly owed by the defendant to the plaintiff, the plaintiff has taken
out this application, inter alia, for security and attachment before judgment. The
plaintiff in addition thereto has also prayed for an injunction restraining the
defendant/respondent from dealing with its bank accounts, the assets and
properties, the particulars whereof is provided in the application. The
plaintiff/petitioner has also sought for appointment of receiver to take possession
of the books and accounts of the defendant/respondent and collect the trade
receivables of the defendant/respondent from its debtors i.e. a garnishee order.
The defendant/respondent has disputed the fact of owing any money to the
plaintiff. The matter if has to be looked on merits, has to be adjudged whether
the plaintiff has been able to make out a case entitling the plaintiff to an order of
attachment before judgment following the principles of a judgment reported in
(2008) 2 SCC 302 (Raman Tech. & Process Engg. Co.-Versus-Solanki
Traders) or establish a prima facie case, irreparable injury and balance of
convenience in her favour to get a restraint order or in view of the ratio laid down
in a judgment reported in (2019) 4 CHN 412 (Harleen Jairath-Versus-Prabha
Surana and Another).
Before the matter can be gone into merits a more important point
falls for consideration. This is as to whether this Court has jurisdiction to receive,
try and determine the suit.
Although, the question of jurisdiction has not been specifically
raised by the defendant/respondent, yet the Court has to first satisfy itself about
its jurisdiction before passing any order either of injunction or appointment of
receiver or an order for attachment before judgment.
In the instant case the plaintiff/petitioner carries on business under
the name and style of Piyarelal & Sons from its principal place of business at
Sevoke Road, Siliguri, which is also the address of the plaintiff/petitioner stated
in the cause tile of the plaint and the petition. The defendant/respondent has,
however, its registered office at 11, Shakespeare Sarani, Kolkata-700 071
admittedly within the jurisdiction of this Court. Going by the situs of the
defendant/respondent this Court has the jurisdiction to receive, try and
determine the suit in view of the provisions of Clause 12 of the Letters Patent,
1865 and principles analogous to that of Section 20 of the Code of Civil
Procedure, 1908. The obstacle to accept this position in the instant matter is the
forum selection clause contained in invoices raised by the plaintiff/petitioner
duly received by the defendant/respondent and acted upon by the
defendant/respondent on making part payment.
It is now well settled that the parties can select a particular forum
amongst several forums having the competence and jurisdiction if one particular
forum is agreed upon excluding the others. In this context the judgments
reported in (1989) 2 SCC 163 (ABC Laminart-Versus-A.P.Agencies (P) Ltd.,
followed by (2004) 7 SCC 447 (Man Roland Druckimachinen Ag-Versus-
Multicolour Offset Ltd. & Anr.).
In the instant case both Siliguri and the Courts at Calcutta are
competent to receive, try and determine the suit. The plaintiff/petitioner has,
however, selected one particular forum i.e. Court at Siliguri by clear, express and
unambiguous terms in her invoices raised on the defendant which has been
accepted and acted upon by the defendant.
The forum selection clause contained in invoices has to be accepted
as a selection for a particular jurisdiction excluding that of the other. The
judgments reported in (2013) SCC OnLine Delhi 573 (Carbon Management
Consulting Private Limited -Versus-Yash Paper Limited) and (2017) SCC
OnLine Cal.3481 (Mittal Extrusion Works Pvt. Ltd.-Versus-Bio Genetics
Drugs Pvt. Ltd. & Ors.) in this regard will throw light.
Thus, the plaintiff/petitioner having selected a particular jurisdiction
cannot now be permitted to resile out of the same and file and maintain the suit
before this Court being a competent Court whose jurisdiction was eliminated.
The plaintiff/petitioner, however, contends that the defendant has waived its
right to challenge the jurisdiction of this Court. Waiver, as held in (2021) 10 SCC
401 (Kalpraj Dharamshi & Anr.- Versus- Kotak Investment Advisors Ltd. &
Anr.), is a conscious relinquishment of right. As to whether the defendant waived
its right has to be established by laying evidence, which is impermissible at this
stage, when the injunction application is only before the Court.
I am told that the written statement was filed on the basis of the
original plaint while subsequent to amendment of the plaint, an additional
written statement has been filed wherein the defendant has specifically taken the
point of lack of jurisdiction of this Court. The plaintiff's contention as to waiver
by the defendant, therefore, at the highest can be decided as a preliminary issue
under the provisions of Order XIV Rule 2 of the Code of Civil Procedure, 1908.
The application for injunction being IA No. GA 1 of 2021 in CS No.
117 of 2021 is, therefore, directed to go out of the list for being adjudicated
upon only after the jurisdictional issue is decided.
(ARINDAM MUKHERJEE, J.)
snn
