Calcutta High Court

Vhyom Mines And Minerals Private ... vs Jharkhand Ispat Private Limited on 21 May, 2025

Author: Arindam Mukherjee

Bench: Arindam Mukherjee

IN THE HIGH COURT AT CALCUTTA
            ORdINARy ORIGINAL CIvIL JURISdICTION
                         [COMMERCIAL dIvISION]
                             ORIGINAL SIdE
Present :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE

                            IA GA NO.5 of 2022
                                    In
                          CS-COM 301 OF 2024
                         (Old no. CS 172 of 2021)

          VHYOM MINES AND MINERALS PRIVATE LIMITED
                              Vs.
              JHARKHAND ISPAT PRIVATE LIMITED


  For Plaintiff/Petitioner            : Mr. Jishnu Chowdhury,
                                        Mr. Aditya Garodia,
                                        Mr. Ratul Das,
                                        Mr. Pintu Ghosh,
                                        Mr. U. Garodia
                                                           .........Advocates

  For the Defendant/Respondent        : Mr. Shaunak Mitra,

Mr. Dripto Mazumdar, Mr. Pallav Samajdar, Mr. Saunak Sengupta ......... Advocates

Last Heard on : 20.05.2025.

  Judgment on                         : 21st May, 2025.

Arindam Mukherjee, J:
      GA NO.5 of 2022
     In CS COM 301 of 2024

1. This is an application by the defendant for revocation of leave under

Clause 12 of Letters Patent, 1865 granted in favour of the plaintiff to

institute the suit in this Court and rejection of the plaint.

2. The defendant says that the plaintiff has sought for recovery of the

balance consideration money paid to the defendant for supply of iron

ore of diverse grade (hereinafter referred to as the "said goods") on the

defendant's failure to supply the entire quantity said to have been

agreed upon by alleging that there has been total failure of

consideration in respect of a portion of the money paid in advance

against which goods have not been supplied. The defendant also says

that the registered office of the plaintiff is situated admittedly outside

the Ordinary Original Civil Jurisdiction of this Court. The registered of

the defendant is also situated at Jharkhand outside the Ordinary

Original Civil Jurisdiction of this Court. The defendant further says

that the tax invoices raised by the defendant against the goods supplied

by the defendant which are annexed with the plaint clearly shows that

the same contains a forum selection process. In majority of the tax

invoices, it is clearly mentioned that the same are subject to "Ranchi"

jurisdiction. The plaintiff on receiving the said tax invoices has

reaccepted such tax invoices and has acted upon the same by adjusting

the price of such supplies with the money paid by it. By virtue of such

acceptance of tax invoices, the parties had agreed to a particular

jurisdiction by excluding the jurisdiction of all other Courts. Moreover,

the goods were supplied from Jharkhand, outside the jurisdiction of

GA NO.5 of 2022 In CS COM 301 of 2024

this Court to the plaintiff also outside the jurisdiction of this Court. No

part of the contract for sale of goods was therefor, performed within the

jurisdiction of this Court to confer territorial jurisdiction of this Court

for which the suit could have been filed by obtaining leave under clause

12 of the Letters Patent, 1865. The payment which forms integral part

of the transaction and plaintiff's cause of action, if any, has also been

admittedly made by the plaintiff through its banker from outside the

jurisdiction of this Court to the defendant and/or its banker also

outside the jurisdiction of this Court. The defendant relied upon the

payment schedule and the invoices annexed to the plaint to

demonstrate that no part of the alleged cause of action of the plaintiff

has taken place within the jurisdiction of this Court. Moreover, the

dispute relates to sale of goods for which the same comes within the

fold of commercial dispute in view of the provisions of 2(1) (c) (18) of the

Commercial Courts Act, 2015. No part of the alleged commercial

dispute has also taken place within the jurisdiction of this Court to

confer territorial jurisdiction to this court. The plaint therefore should

be rejected by revoking leave under clause 12 of Letters Patent, 1865.

3. The defendant has cited judgments of the Coordinate Benches of this

Court reported in AIR 2019 Cal 178 [Shridhar Vyapaar Private

Limited vs. Gammon India Limited] and AIR 2022 Cal 143 [Techma

Engineering Enterprise Private Limited Vs.Union of India].

4. The defendant says that by accepting the tax invoices containing a

jurisdiction clause and having acted upon it by adjusting the value of

GA NO.5 of 2022 In CS COM 301 of 2024

the goods covered under such tax invoices, there has been a meeting of

mind between the parties selecting a particular jurisdiction and ousting

the others. By relying upon the aforesaid two judgments, the defendant

submits that the case in hand is squarely covered by the ratio laid

down in the said two judgments as a consequence whereof the leave

should be revoked and the plaint should be rejected. The defendant

had also relied upon a judgment of the Hon'ble supreme Court reported

in 2013 (9) SCC 32 [Swastik Gases Private Limited vs. Indian Oil

Corporation Limited] submit that even the absence of the words

"alone" "exclusive" or "only" in the forum selection clause, does not

negate the binding nature thereof to allow the plaintiff to file a suit in a

Court, the jurisdiction whereof stands excluded due to such forum

selection clause.

5. The defendant has also relied upon judgments reported in (2009)

EWCA Civ 585 (UBS AG and Anr. Vs. HSH Nordbank AG) and (2010)

EWCA Civ 998 (Sebastian Holdings Inc. vs. Deutsche Bank AG) to

demonstrate as to how in a commercial contract and a dispute arising

out therefrom has been dealt by Courts in United Kingdom. It is the

case of the defendant that the forum selection clause contained in the

Tax Invoices on the acceptance thereof forms a binding forum selection

clause which should be honoured.

6. The defendant, therefor, submit that the leave under clause 12 of

Letters Patent 1865, are rejected and the plaint CS 172 of 2021 be

rejected.

GA NO.5 of 2022 In CS COM 301 of 2024

7. The plaintiff on the other hand submits that their case is not based on

the tax invoices but for recovery of the excess consideration money

lying with the defendant which was paid towards consideration for the

sale and supply of the goods the full quantity whereof which the

defendant has failed to do which has resulted in failure of total

consideration. So far as the tax invoices are concerned, the goods

covered thereunder have been delivered to the plaintiff against and the

price thereof paid in advance the value of which has been set off and/or

adjusted against the total money paid to the defendant for supply of the

entire quantity. Assuming without admitting, the plaintiff has accepted

the tax invoices containing the forum selection clause then also the

plaintiff's cause of action is not based on the same which would fix an

embargo on the plaintiff in instituting the suit before this Court.

Moreover, plaintiff has clearly stated in the plaint about an agreement

with the defendant containing specific terms which was entered at the

office of the defendant within the jurisdiction of this Court. That apart

and in any event, at the relevant time, the plaintiff had its corporate

office within the jurisdiction of this court and at least, one invoices was

raised at the said address.

8. The plaintiff also states that the principles followed in a case for

revocation of leave and rejection of plaint is same as that under Order

VII Rule 11 of the Code of Civil Procedure, 1908 (in short CPC). The

Court in such a case is to look into the plaint only along with

documents annexed thereto considering the statements made in the

GA NO.5 of 2022 In CS COM 301 of 2024

plaint to be true and correct. Any defence put forth by the defendant,

therefore, should not be looked into at this stage. Even if a miniscule

part of the cause of action has arisen within the jurisdiction of this

Court, then the plaintiff is entitled to maintain a suit in this Court. By

referring to an agreement pleaded in paragraph 4 of the plaint, it is

submitted by the plaintiff that the agreement was as pleaded in the

plaint was entered within the jurisdiction of this Court. Coupled with

the same at least one invoices was raised at the plaintiff's corporate

office at Rabindra Sarani within the jurisdiction of this Court as a

consequence whereof at least a part of the cause of action as pleaded

by the plaintiff as arisen within the jurisdiction of this Court.

9. The plaintiff also says that if the submissions of the defendant is to be

taken at its face value then also a limited evidence is necessary for

which the jurisdiction issue can be at the highest set down as a

preliminary issue.

10. On the issue of setting down the jurisdiction issue as a preliminary

issue, the plaintiff has cited the following judgments.

(i) 2002 (10) SCC 101 [Arjun Agarwal Vs.Nagreeka Exports (P

Ltd. & Anr.]

(ii) 2004 -I-L-W 695 (Madras) (S.G. Badrinath Vs. V. Jagannathan

& Anr.)

(iii) Judgment of a Division Bench of this Court in APO 121 of 2017

dated 30th July, 2021.

GA NO.5 of 2022 In CS COM 301 of 2024

The plaintiff says that in view of the ratio laid down in these judgments,

the issue of jurisdiction raised by the defendant should be at the

highest decided as a preliminary issue.

11. The plaint, therefor, cannot be rejected on the defendant allegation that

no part of the cause of act has arisen within the jurisdiction as

aforesaid.

12. After hearing the parties and considering the materials on record as

also the judgments cited, I find that admittedly the registered office of

the plaintiff is situated outside the jurisdiction of this Court. The

plaintiff has not pleaded in the plaint that at the relevant point of time,

the plaintiff had its corporate office at Rabindra Sarani within the

jurisdiction of this Court. On the contrary the plaintiff has pleaded that

the defendant had an office at Taltala within the jurisdiction of this

Court wherein the agreement was interim. There is no written

agreement but the terms of the oral agreement has been pleaded in the

plaint. Although the said agreement pleaded by the plaintiff does not

speak of a forum selection process but the admitted position is that the

tax invoices say so. The plaintiff ha also admittedly accepted the tax

invoices and has acted on the basis thereof. In that view of the matter,

the ratio laid down in Sridhar Vyapaar (supra) and Techman

Engineering (supra) gets attracted. The plaintiff cannot deny the forum

selection process contained in the tax invoices.

13. Assuming without admitting that the plaintiff's suit is based on

recovery of the excess amount paid to the defendant against which no

GA NO.5 of 2022 In CS COM 301 of 2024

supplies were made thereby amounting to total failure of consideration

then also the jurisdictional issue stares at the plaintiff.

14. On a scrutiny of the invoices, as also the tax invoices, it is clear that

each of the invoices and the tax invoices were addressed to the plaintiff

at its registered office situate outside the jurisdiction of this Court. The

delivery of the goods has admittedly taken place from Jharkhand

outside the jurisdiction to the plaintiff at its registered office situated

outside the jurisdiction of this Court. The documents annexed with the

plaint do not reveal that any portion of the supplies were made from the

defendant's office at Taltala. The registered office of the defendant, the

works of the defendant all at Jharkhand. The invoices referred to by

the plaintiff which contains the address of the corporate office of the

plaintiff at Rabindra Sarani within the jurisdiction of this Court is also

raised at the registered office of the plaintiff outside the jurisdiction

below. The corporate office address of the plaintiff has been printed

below its registered office. Therefor, it cannot be said that the said

invoice was raised at the corporate office of the plaintiff within the

jurisdiction of this Court as contended by the plaintiff to give territorial

jurisdiction of this Court. The tax invoices containing the jurisdiction

clause has not been included by the transporter. It is defendant's

document duly accepted by the plaintiff thereby signifying meeting of

mind leading to a banking contract with the forum slection clause. That

apart and in any event the plaintiff has not made out a case in the

plaint based on its corporate office at Rabindra Sarani.

GA NO.5 of 2022 In CS COM 301 of 2024

15. It is also an admitted position as will appear from the plaint, that the

payments were made through electronic mode by the plaintiff from its

bank admittedly outside the jurisdiction of this Court. The plaintiff has

also not indicated in the plaint that the payments were made to the

defendant or to its banker situated within the jurisdiction of this Court.

In absence of such pleadings, it is to be held that the payment was

made to the defendant at a place outside the jurisdiction of this Court.

It is well-settled provisions of law that without pleading, no amount of

evidence led by a party will be admitted by the Court or looked into.

The plaintiff, therefor, cannot lay any evidence to demonstrate that

payments were made to the defendant within the jurisdiction of this

Court.

16. The suit is a commercial suit. The statutory mandate command the

plaintiff to disclose all documents in its possession and custody

concerning the commercial dispute or in support of the plaintiff's case

of action along with the plaint. Even if the plaintiff's case is that the

agreement had taken place at the defendant's office at Taltala within

the jurisdiction of this Court then also the plaintiff was required to

annex some documents to corroborate that defendant's office allegedly

situated at Taltala had a nexus with the cause of action of the plaintiff

as alleged in the plaint. No such document is available. The only letter

annexed to the plaint and addressed at the Rabindra Srarani office of

the defendant is plainifff's letter dated 25th February, 2021. On a bare

perusal of the same shows that the said letter is not addressed to the

GA NO.5 of 2022 In CS COM 301 of 2024

defendant but to an individual. The letter also does not mention

anything about the defendant but refers to other entities which are

neither impleaded in the plaint nor there is any averment to that effect

that their presence is necessary for adjudication of the disputes being

the subject matter of the suit.

17. On an overall consideration of averments in the plaint along with the

documents annexed there, I do not find that any part cause of action as

alleged by the plaintiff in paragraph 4, 6, 11, 12, 18, 19, 20 and 21 as

summarized in paragraph 25 thereof had arisen within the jurisdiction

of this Court. Even if the plaintiff's contention that its suit is based on

failure of total consideration, then also no part of the plaintiff's cause of

action appears to have arisen within the jurisdiction of this Court and

admittedly the plaintiff and the defendant have their respective

registered office outside the jurisdiction of this Court.

18. So far as the contention of the plaintiff as to set down the issue as to

the jurisdiction as a preliminary issue is concerned, I have considered

the following judgments:-

i) (2020) 6 SCC 557 (Nusli Neville Wadia Vs. Ivory Properties &

Ors.)

ii) (2022) 7 SCC 644 (Sathyanath & Ors. Vs. Sarojamani)

The paragraph 52 of Ivory Properties (supra) of the Hon'ble Supreme

Court has held the jurisdiction issue can be a preliminary issue. In

Sathyanath (supra) the Hon'ble Supreme Court while elaborately

dealing as to what is a preliminary issue has held that preliminary

GA NO.5 of 2022 In CS COM 301 of 2024

issue is only on the part of law where no evidence is required. The ratio

laid down in the two judgments aforesaid on being considered in the

facts of the instant case I do not find any reason to set down the

jurisdiction issue as a preliminary issue. As described hereinabove the

suit being a commercial suit, the Court has the advantage of looking

into all the documents which are annexed to the plaint as all necessary

documents are required to be disclosed with the plaint as mandated

under the Commercial Courts Act, 2015 read with the amended

provisions of CPC made applicable to commercial suits. There is no

supporting document to show that anything has taken place at the

Taltala Office of the defendant. In absence of any supporting document

the bare pleading in the plaint cannot persuade the Court to set down

the jurisdiction issue as a preliminary in the particular when not part

of the transaction has taken place with the jurisdiction of this Court.