IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
7. However, from a true, correct and meaningful reading of the plaint,
it transpires that the invitation to offer was made by the Defendant
from its office at Varanasi, outside the jurisdiction of this Hon'ble
Court. The offer had been made by the Plaintiff allegedly from its
registered office, within the jurisdiction of this Hon'ble Court, which
has subsequently been accepted by the Defendant at its office at
Varanasi, outside the jurisdiction of this Hon'ble Court, by issuance
of the Purchase Orders. Supplies were to be made from the plant of
the Plaintiff at Uluberia, Howrah, outside the jurisdiction of this
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
Hon'ble Court, to the worksite of the Defendant at Alwar, Rajasthan,
outside the jurisdiction of this Hon'ble Court.
8. Accordingly, in response to the invitation to offer being made by
the Defendant from Varanasi, outside the jurisdiction of this Hon'ble
Court, the offer had been made by the Plaintiff allegedly from its
registered office within the jurisdiction of this Hon'ble Court, whereby
such offer of the Plaintiff stood accepted by the Defendant by
issuance of the respective purchase orders from its registered office
at Varanasi, outside the jurisdiction of this Hon'ble Court. Hence, the
contract stood completed by acceptance of the offer of the Plaintiff by
the Defendant upon issuance of the purchase orders issued from
Varanasi, outside the jurisdiction of this Hon'ble Court.
9. The terms of the purchase orders were subsequently modified at
the instance of the Plaintiff, which had been accepted by the
Defendant upon issuance of amended purchase orders from its office
at Varanasi, Uttar Pradesh, India, outside the jurisdiction of this
Hon'ble Court. Hence, the modified/amended contract stood
concluded and/or completed only upon acceptance of the offer of the
Plaintiff by the Defendant from its office at Varanasi, outside the
jurisdiction of this Hon'ble Court, upon issuance of the aforesaid
amended purchase orders.
10. The Plaintiff and the Defendant are bound by the purchase
orderscontaining a clause conferring exclusive jurisdiction in the
Courts of Varanasi and subsequent to such selection, both the parties
have acted in terms of the contract. The said jurisdiction clause was
duly accepted by the Plaintiff without any demur and/or protest."
6. In the light of the above, the defendant prays for revocation of
leave granted under Clause 12 of the Letters Patent.
Submissions:
7. Mr. JayantaSengupta, learned Advocate refers to the plaint
along with the documents appended thereto,appearing for the
defendant referring to page nos. 61 to 68 of the plaint submits that
before issuing the purchase order by the defendant from Varanasi upon
the plaintiff, there was a negotiation by and between the parties. The
defendant submitted an invitation of offer upon the plaintiff at page
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
no.61 and 62 to the application, where the defendant made its offer to
the plaintiff to supply the goods to the defendant and then further
negotiations took place and the plaintiff submitted its detail offer for
supply of material, at page nos. 64, 65 and 68 to the application, which
was accepted by the defendant at Varanasi. Therefore, the contract,
according to the defendant was concluded at Varanasi and then in
pursuance thereof the purchase order was issued by the defendant
from the Varanasi containing the forum selection clause at Varanasi, at
page nos. 69 and 71.
8. The plaintiff accepted the said purchase order at its office at
3A, Loudon Street, Kolkata-700017 within the jurisdiction of this Court.
The defendant then raised its tax invoice at page no. 176A (a specimen
copy) from its office at Loudon Street which was received by the
defendant at Varanasi. The said tax invoices also contains a forum
selection clause at Kolkata.
9. Mr. Sengupta, learned Advocate then submits that since prior
to issuance of the purchase order the contract was concluded between
the parties at Varanasi, this Court has no jurisdiction in view of the
purchase order issued by the defendant and also in view of the cause of
action had arisen at Varanasi when the contract was concluded,
according to the defendant. In support, he has relied upon a decision
of the Hon'ble Supreme Court In the matter of: Bhagwandas
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
Goverdhandas Kedia Vs. GirdharilalParshottamdas And Co. And
Othersreported at AIR 1966 SC 543.
10. Mr. Sengupta, learned Advocate then submits that when
purchase order is there in pursuance whereof goods were supplied, the
forum selection clause even though mentioned in the tax invoices raised
by the supplier of the goods, would not confer any jurisdiction.In
support, he has relied upon a decision of the Hon'ble Delhi High Court
In the matter of:Wollaque Ventilation & Conditioning Pvt. Ltd. Vs.
Sterling Tools Ltd.reported at(2011) 177 DLT 731.
11. Finally, Mr. Sengupta, learned Advocate has relied upon the
celebrated decision of the Hon'ble Supreme Court in support of his
contention In the matter of: A.B.C. Laminart Pvt. Ltd. and another
Private Limited Vs. A. P. Agencies, Salemreported atAIR 1989 SC
1239, as the forum being selected by the parties at Varanasi.
12. Learned Advocate for the defendant submits that, when cause
of action has arisen at Varanasi, as the contract was concluded there,
the Varanasi Court having been agreed has the exclusive jurisdiction.
In respect of the plea taken by the plaintiff that the tax invoices were
issued by the plaintiff with the forum selection clause mentioned under
the purchase order was novated, has been specifically denied and
disputed by the defendant.
13. Accordingly, the defendant prays for revocation of leave.
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
14. Mr. Sabyasachi Chaudhury, learned Senior Advocate
appearing for the plaintiff refers to the relevant averments made in the
plaint to show that specific case made out in the plaint is that the
purchase order was issued by the defendant from Varanasi upon the
plaintiff and the plaintiff has accepted the same at its Loudon Street
office within the jurisdiction. The goods were supplied by the plaintiff
to the defendant at Rajasthan, the agreed destination place for supply.
The payments/part payments whenever made by the defendant it was
received by crediting the bank account of the plaintiff at 24, Park
Street, Kolkata- 700016, within jurisdiction of this Court. The
amended purchase order was receivable by the plaintiff at its Loudon
Street office within the jurisdiction of this Court. The contract was
made at Loudon Street office of the plaintiff. Accordingly, part of cause
of action arose within and part arose outside the jurisdiction of this
Court and the leave was granted under Clause 12 of the Letters Patent,
1865 while admitting the plaint. The leave as prayed for was justified
and accordingly the same was granted.
15. Mr. Chaudhury, learned Senior Advocate has further drawn
attention of this Court to the pleading made in the plaint that no part of
cause of action or any part thereof had arisen at Varanasi. He submits
that the placing and submissions of purchase order by the purchaser
upon the seller does not constitutes cause of action. In the facts of this
case, admittedly the purchase order was placed by the defendant from
Varanasi upon the plaintiff and the plaintiff has accepted the same at
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
its Loudon Street office where the cause of action has arisen
immediately upon accepting the purchase order. In support, he has
also relied upon the decision of the Hon'ble Supreme Court in the
matter of: A. B. C. Laminart Pvt. Ltd. and another Vs. A. P.
Agencies, Salemreported atAIR 1989 SC 1239.
16. In the light of the above Mr. Chaudhury, learned Senior
Advocate submits that this application is a ploy to stall the suit, if
possible, since the defendant has not filed its written statement on
merit of the claim and it has already forfeited its right to do so in law.
The application is otherwise frivolous, harassive and misconceived and
should be dismissed in limine.
Decision:
17. After considering the rival contentions of the parties and on
perusal of the materials on record principally the plaint and the
application filed by the defendant, this Court first thinks it fit to refer to
the relevant paragraphs from the plaint where the plaintiff has pleaded
the jurisdiction of the Court. Those are quoted below:
"60. Inasmuch as the Purchase Order and the Amended
Purchase the Order issued by the defendant were received by the
plaintiff at its registered office at 3A, Loudon Street, Kolkata-700017,
within the jurisdiction aforesaid the contract between the plaintiff
and the defendant was made at 3A, Loudon Street, Kolkata-700017.
Inasmuch as the contract expressly specifies the place of
performance of the contract to be the Malakhera Railway Station,
Alwar, Rajasthan-301406, outside the jurisdiction aforesaid, and
inasmuch as the goods were finally delivered at the request of the
defendant at the Railway Station, Reengus Store Depot near
Reengus, District-Sikar, Rajasthan-332404, outside jurisdiction
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
aforesaid, the performance of the contract was made at Sikar,
Rajasthan, outside the jurisdiction aforesaid. For the purpose of
effecting delivery under the Purchase Order and the Amended
Purchase Order, the goods were made over to a common carrier
Shriniwasa Roadways (P) Ltd., having its office at Akash Ganga
Building, 36, MaharshiDevendra Road, 3rd floor, Room No.319,
Kolkata-700006, within the jurisdiction aforesaid. Payment under the
Purchase Order as amended by the Amended Purchase Order was
receivable by the plaintiff at its registered office at 3A, Loudon Street,
Kolkata-700017, within the jurisdiction aforesaid and at its bank
account bearing no. 0000001094534662 maintained with State Bank
of India, Commercial Branch Kolkata, having its office at 24, Park
Street. Kolkata 700016 within the jurisdiction aforesaid.
61. Although the Purchase Order as amended by the Amended
Purchase Order provides that the order was subject to Varanasi
jurisdiction only, no part of the cause of action for the present suit
has arisen within the territorial jurisdiction of the city of Varanasi
and as such the said clause in the Purchase Order seeking to confer
exclusive jurisdiction on the courts at Varanasi is of no effect.
62.In any event in view of the clear stipulation in the tax
invoices raised by the plaintiff to the effect that "all disputes are
subject to Kolkata jurisdiction only and exclusively", and in view of
the said tax invoices having been accepted by the defendant and
part payment having been made in respect thereof by the defendant
in part performance of its obligation thereunder, the clause in the
Purchase Order conferring exclusive jurisdiction on the Courts in
Varanasi stood novated by the stipulation in the invoices raised by
the plaintiff on the defendant which was accepted by the defendant
by its conduct.
63. Inasmuch as the contract was made at 3A, Loudon Street,
Kolkata-700017, within the jurisdiction aforesaid, as stated in
paragraphs 5 and 6 hereof and inasmuch as payment was
receivable at 3A, Loudon Street, Kolkata-700017, within the
jurisdiction aforesaid and received by the plaintiff at its bank account
bearing no. 0000001094534662 maintained with State Bank of
India, Commercial Branch Kolkata, having its office at 24, Park
Street, Kolkata 700016, within the jurisdiction aforesaid, as stated in
paragraphs 9, 16, 18, 27, 28 and 30 hereof part of the cause of
action for the present suit has arisen within the jurisdiction
aforesaid, the plaintiff seeks leave under clause 12 of the Letters
Patent, 1865."
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
18. Before proceeding any further this Court at the threshold
reiterates the settled law on the issue, while adjudicating an
application filed by the defendant praying for revocation of leave
granted under Clause 12 of the Letters Patent, the Court
should only read the averments from the plaint taking them as
true and correct. The averments in the plaint are to be taken as
sacrosanct and in the light of that averments the Court has to
investigate whether any part of cause of action had arisen within
the jurisdiction of this Court so that leave under Clause 12 of the
Letters Patent can be granted.
19. From the averments made in the instant plaint, it appears to
this Court that, the clear case pleaded in the plaint is that
purchase order was issued by the defendant from Varanasi and
it was accepted by the plaintiff at its Loudon Street office and the
payment/part payment made by the defendant to the plaintiff
was received by the plaintiff at its bank account at 24, Park
Street within the jurisdiction of this Court. In a suit for
unrealized price for goods sold and delivered, according to this
Court, these factors are sufficient to attract the jurisdiction of
the Court. The defendants have admitted the transaction to the
extent that the plaintiff has supplied the goods and the
defendant has accepted the goods.
20. The purchaser of the goods being the defendant herein might
have raised its purchase order from Varanasi but unless that
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
purchase order is accepted by the plaintiff, the question of
proceeding any further under the contract would not have arisen
and therefore when the purchase order is accepted by the
plaintiff at its Loudon Street office and thereafter any breach is
alleged by either of the parties, definitely the jurisdiction would
be there at the place of office of the plaintiff at Loudon Street for
either of the parties to sue each other. Inasmuch as, in
acknowledgment of supply of material by the plaintiff, the
defendant has also made payment/part payment by crediting the
bank account of the plaintiff at 24, Park Street within the
jurisdiction of this Court.
21. In the matter of: A.B.C. Laminart Pvt. Ltd. (Supra), the
Hon'ble Supreme Court had observed as under:
"15. In the matter of a contract there may arise causes of action
of various kinds. In a suit for damages for breach of contract the
cause of action consists of the making of the contract, and of its
breach, so that the suit may be filed either at the place where the
contract was made or at the place where it should have been
performed and the breach occurred. The making of the contract is
part of the cause of action. A suit on a contract, therefore, can be filed
at the place where it was made. The determination of the place
where the contract was made is part of the law of contract. But
making of an offer on a particular place does not form cause of action
in a suit for damages for breach of contract. Ordinarily, acceptance of
an offer and its intimation result in a contract and hence a suit can
be filed in a court within whose jurisdiction the acceptance was
communicated. The performance of a contract is part of cause of
action and a suit in respect of the breach can always be filed at the
place where the contract should have (been) performed or its
performance completed. If the contract is to be performed at the place
where it is made, the suit on the contract is to be filed there and
nowhere else. In suits for agency actions the cause of action arises at
the place where the contract of agency was made or the place where
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
actions are to be rendered and payment is to be made by the agent.
Part of cause of action arises where money is expressly or impliedly
payable under a contract. In cases of repudiation of a contract, the
place where repudiation is received is the place where the suit would
lie. If a contract is pleaded as part of the cause of action giving
jurisdiction to the Court where the suit is filed and that contract is
found to the invalid, such part of cause of the action disappears. The
above are some of the connecting factors."
22. Insofar as the contention of the plaintiff that with the
issuance of the tax invoices by the plaintiff, the forum selection
clause mentioned in the purchase order issued by the defendant
has been novated, is a mixed question of law and fact and should
be the subject matter of trial, the same cannot be taken into
consideration in a summary manner at this stage.
23. In the matter of: Bhagwandas Goverdhandas Kedia
(Supra) there was a trial Court decree and then the matter finally
went up before the Hon'ble Supreme Court. On interpretation
and constraction of Section 4 of the Contract Act the judgment
was delivered by the Hon'ble Supreme Court. In the facts of this
case, as pleaded in the plaint, the plaintiff had proceeded on the
basis of the purchase order having been issued by the defendant
from Varanasi and accepted by the plaintiff at its Loudon Street
office. The pre-purchase order negotiations are not spelt out in
the plaint as contended by the defendant. However, the
defendant has relied upon some documents to show that there
was a discussion and negotiation between the parties. The
averments made in the plaint since has to be taken sacrosanct,
this Court has to proceed on the basis that the purchase order
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
having been received by the plaintiff at its Loudon Street office,
this Court has jurisdiction to entertain the cause of action on the
basis of the averments made in the plaint. It is the acceptance of
the purchase order which gives the jurisdiction, as held by the
Hon'ble Supreme Court In the matter of: A.B.C. Laminart Pvt.
Ltd. (Supra). The ratio In the matter of: Bhagwandas
Goverdhandas Kedia (Supra) would not apply in the fats of this
case.
24. As this Court has already discussed whether the issuance of
tax invoices has novated the purchase order insofar as forum
selection clause is concerned is a mixed question of law and
facts, the decision of the Hon'ble Delhi High Court In the matter
of: Wollaque Ventilation & Conditioning Pvt. Ltd. Vs.
Sterling Tools Ltd. reported at (2011)177 DLT 731 is not
required to be discussed at this stage.
25. In view of the forgoing reasons and discussions, this Court is
of the firm and considered view that the leave granted by the
Court under Clause 12 of the Letters Patent, 1865 in the light of
the averments made in the plaint in the instant suit, cannot and
should not be revoked.
26. The defendant has not filed its written statement and has
already forfeited its right to do so. However, the right of cross-
examination of the defendant is protected. In such
circumstances, the defendant shall be free to cross-examine the
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In CS-COM/712/2024
A.R., J.
witness of the plaintiff in accordance with law, if the suit travels
up to the stage of trial.
27. With the above observations and direction this application IA
No. GA-COM/4/2026 stands dismissed, without any order as to
costs.
(ANIRUDDHA ROY, J.)
mg
IA No. GA-COM/4/2026
In CS-COM/712/2024
A.R., J.
