M/S Srodeep Polymers Ltd. vs M/S Scj Master Batches
2011 Latest Caselaw 2119 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 20.04.2011


+               RSA No. 3/2007 & CM No. 202/2007 (for stay)


M/S SRODEEP POLYMERS LTD.       ...........Appellant
                Through: Mr. K.S. Negi, Advocate.

                      Versus

M/S SCJ MASTER BATCHES                           ..........Respondent

                           Through: Mr. Pankaj Chaudhary, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                 Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

31.08.2006 which had endorsed the finding of the trial judge dated

20.10.2005 whereby the suit filed by the plaintiff namely M/s SCJ

Master Batches (under Order 37 of the Code of Civil Procedure)

seeking recovery of Rs. 1,14,995/- had been decreed along with the

interest at 9% per annum.

2. The plaintiff had filed the aforenoted suit under Order 37 of

the Code. His claim was based upon three invoices. The details of

the three invoices are given hereunder:-

S.No.           Bill No.        Date             Amount (in Rs.)

1.              323             18.02.2003            18,980/-
2.              383             31.03.2003            27,679/-
3.              99              28.05.2003            44,521/-

3. The defendant had purchased plastic dana worth Rs. 91.180/-

in terms of the aforenoted bills; defendant failed to make the

payment; along with the principal, defendant was also liable to pay

interest. In the plaint, it was pointed out that the part payment of

Rs. 15,799/- had been made with a promise to pay the balance sum

of Rs. 15,381/- ; however, the same not having been paid the suit

was accordingly filed.

4. After service of summons, an application for leave to defend

had been filed by the defendant. He had raised various objections

including that of jurisdiction. Para 4 (b) of the application stated

that the courts does not have jurisdiction; the cause of action had

arisen at Solan (HP) from where the goods were supplied and were

delivered at Noida (UP); payments were released in part by the

defendant from Noida office. This application for leave to defend

had been dismissed vide order dated 20.10.2005. Court was of the

view that the claim of the plaintiff was founded on the aforenoted

three bills; defendant had not paid the balance amounts due from

him; the registered office of the company was at Delhi; defendant

had to make the payments of the aforenoted material at Delhi; part

of cause of action had arisen at Delhi; Delhi courts had

jurisdiction. Plea of the defendant was rejected. This was

endorsed in first appeal.

5. This is a second appeal. It had been admitted and on

13010.2009, the following substantial question of law was

formulated:-

"Whether the term „subject to HP jurisdiction‟ contained in the invoices (3) oust the jurisdiction of civil court at Delhi to entertain the suit?"

6. The three invoices have also been perused. At the bottom of

the page no. 33, the following finds mention:- "Subject to HP

Jurisdiction"

These bills show that the goods have been supplied from the

Solan office. It has vehemently been urged that the jurisdiction of

the Delhi Courts was ousted in terms of the aforenoted clause; no

cause of action had arisen at Delhi. Learned counsel for the

appellant had placed reliance upon the judgments reported in AIR

2004 SC 2154 New Moga Transport Company Vs. United India

Insurance Co. Ltd. & Others and AIR 2004 SC 2432 M/s. Hanil Era

Textiles Ltd. Vs. M/s. Puromatic Filters (P) Ltd. Reliance has also

been placed another judgment of this court reported in 2005 VIII

AD (Delhi) Apparel Export Promotion Council Vs. Sh. Prabhati

Patni, Proprietor Comfort Furnishers & Anr. as also upon 2006 (82)

DRJ 474 (DB) Caprihans India Limited Vs. R.T. Packaging Limited.

It has been pointed out that the parties had agreed that the courts

at HP alone would have the jurisdiction. Delhi court could not have

entertained the suit.

7. Arguments have been countered. It has been pointed out

that the bills do not have any exclusivity clause. Part of the cause

of action had, in fact, arisen at Delhi. Attention has been drawn to

the bank statements (page 27 of the list of documents filed by the

appellant) wherein the bank of the plaintiff is State Bank of

Rajasthan, Greater Kailash. It is pointed out that the payments had

to be released by the defendant from his Bank of Rajasthan which

is at Greater Kailash, New- Delhi; the letter head of the company

(page 88 of the paper book) also shows that the company has its

registered office as also its sales office at Delhi. This is also an

admitted position.

8. Record shows that the part of cause of action had, in fact,

arisen at Delhi. This has been specifically averred in the plaint

itself wherein it is stated that the registered office is at Delhi;

payments had to be received at Delhi. The clause relied upon by

the learned counsel for the appellant as depicted in the aforenoted

three bills is not a complete ouster clause; it does not say that the

courts of HP will alone have jurisdiction. This is nowhere

deciphered from the said documents. Even the entire body of the

application for leave to defend, it has not been averred by the

appellant/defendant that the HP court alone has jurisdiction. In

this application the defense raised was that the Delhi Courts would

not have jurisdiction but it had nowhere been stated that the court

at HP would alone have the exclusive jurisdiction.

9. The judgments relied upon by the appellant are distinct and

do not advance his case. The first judgment of New Moga

Transport Company (supra) clearly stipulated that the court at

place „U‟ would only have the jurisdiction; in the second judgment

of M/s. Hanil Era Textiles Ltd (supra), although the words "alone"

"only" or "exclusively" do not find mention but having regard to

the facts of the said case wherein the purchase order was made at

Bombay; it was accepted by the branch office at Bombay; advance

payment was made at Bombay; the final payment was made at

Bombay, it was held that Bombay court alone would have

jurisdiction. This is not so in the instant case. The judgment of

Apparel Export Promotion Council (Supra) states that where two or

more courts have jurisdiction because part of cause of action may

have arisen therewithin, parties may contract to exclude

jurisdiction and elect to restrict it to one or more of the courts.

This principle is also inapplicable. The judgment of Caprihans

India Limited (supra) was a contract where from a reading of the

plaint, it was clear that the courts at Faridabad alone would have

the jurisdiction. All this is missing in the instant case. Plaint in the

present case has clearly averred that the cause of action has arisen

at Delhi as the registered office of the company is at Delhi; the

orders were accepted at Delhi; payments were to be made at Delhi;

part payments had, in fact, been made at Delhi; jurisdiction of the

Delhi courts was rightly held to be not excluded.

10. Under Section 20 of the Code of Civil Procedure, the court

gets jurisdiction if the defendant resides or carries for business or

personally works for gain within the local limits or jurisdiction or

the cause of action arises, wholly or in part within such local limits.

In the present case, the defendant had their registered office as

also their sales office at Delhi. As has been held by the Supreme

Court in AIR 1989 SC 1239 A.B.C. Laminart Pvt. Ltd. Vs. A.P.

Agencies that as regards construction of an ouster clause when

words like „alone‟, „only‟, „exclusive‟ and the like have been used

there may be no difficulty; even without such words in appropriate

cases the maxim „expressio unius est exclusio alterius‟- expression

of one is the exclusion of another-may be applied; it would depend

upon the facts of each case. In view of the averments made in the

plaint as also the admitted fact that the registered office and sales

office of the defendant company is in Delhi; part payments of the

transaction had also been made by the defendant from his Delhi

Bank, it cannot be said that the jurisdiction of the Delhi courts is

excluded.

11. Substantial question of law is answered in favour of the

plaintiff/respondent and against the appellant/defendant. There is

no merit in the appeal. Appeal as also the pending application is

dismissed.

(INDERMEET KAUR) JUDGE APRIL 20, 2011 ss