Delhi High Court
State Of Rajasthan And Another vs M/S. Jain Tube Company Limited on 6 July, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.15/2002
% 6th July, 2011
STATE OF RAJASTHAN AND ANOTHER ...... Appellants
Through: Mr. R.V. Sinha, Advocate with Mr. A.S.
Singh, Advocate.
VERSUS
M/S. JAIN TUBE COMPANY LIMITED ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
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
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under
Section 96 of Code of Civil Procedure, 1908, is to the impugned judgment
and decree dated 3.7.2001 which has decreed the suit of the
respondent/plaintiff for a sum of Rs.1,00458.75 alongwith interest @ 18%
per annum. One of the issues which was framed in the suit being issue No.1
pertained to the territorial jurisdiction of the Courts at Delhi. This issue has
been dealt with by the trial Court in the following manner:
RFA No.15/02 Page 1 of 6
"Issue No.1
7. Defendants have disputed the territorial jurisdiction of this
Court to entertain the present suit in view of clause 25 of the
tender notice Ex.DW1/1 dated 24.4.93. Clause 25 of this tender
notice reads as follows:
"25. All legal proceedings, if necessity arises to
institute may by any of the parties (Government or
contractor) shall have to be lodged in courts situated in
Rajasthan and not elsewhere."
However, this clause cannot be invoked to outst the
territorial jurisdiction of this court. Parties can enter into an
agreement to confer jurisdiction in one of the court, if more than
one court has the territorial jurisdiction to entertain the suit. In this
case, the clause speaks of Rajasthan courts only. Therefore it is a
vague clause. In the present case, part of cause of action did arise
in Delhi. It is admitted by DW1 Shri Subhash Chander Saxena that
agreement Ex.PW1/D1 was witnessed at Delhi by both the
witnesses. He also admitted that this agreement Ex.PW1/D1 was
forwarded by the plaintiff after execution at Delhi to the
defendants under their letter dated 7.10.1993 which was received
by the defendants at Jodhpur on 30.10.1994.
8. DW2 Shri Govind Ram Chaudhary in his statement on oath
has deposed that stamp paper of agreement Ex.PW1/D1 was
purchased at Delhi. He signed it as witness No.1. Thus, it is clear
that a part of cause of action arose in favour of the plaintiff and
against the defendant at Delhi where the agreement Ex.PW1/D1
was executed and signed by the witnesses to the document of both
the parties. Ld. counsel for the defendant during the course of
arguments conceded that this court has the territorial jurisdiction
to entertain the present suit.
9. Hence, I conclude that this court has the territorial
jurisdiction to entertain the present suit. The issue is decided
accordingly."
2. Learned counsel for the appellants argued that the trial Court
has clearly erred in deciding this issue by holding that the Courts at Delhi
had territorial jurisdiction inasmuch as the clause clearly provides for
RFA No.15/02 Page 2 of 6
jurisdiction of the Courts in Rajasthan "and not elsewhere". Reliance is
placed upon the decisions of the Supreme Court in the cases of A.B.C.
Laminart Pvt. Ltd. and Anr. Vs. A. P. Agencies, Salem AIR 1989 SC
1239 and R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Vallabh Glass
Works Ltd. (1993) 2 SCC 130 to argue that once there is an expression of
"and not elsewhere" the exclusive jurisdiction will vest with the Courts at
Rajasthan and not at Delhi. It is argued that tender was sent to the plaintiff
from Jodhpur and accordingly contract is concluded at Jodhpur in view of the
decision of the Supreme Court in the case of Bhagwandas Goverdhandas
Kedia Vs. M/s. Girdharilal Parshottamdas and Co. AIR 1966 SC 543.
3. I find that the argument as raised by the learned counsel for the
appellants has force. In view of the agreed clause 25, the Courts at Delhi
would have no territorial jurisdiction. The suit therefore could not have been
instituted at Delhi and had to be filed in the competent Courts at Jodhpur
where the contract was concluded, and in fact where it was also performed.
I may note that supply in terms of the supply order was to be made at store
yard of the appellants at Jodhpur as per clause 1 of the acceptance of tender.
4. The issue which then arises is what should be done in a case like
the present where complete evidence has been recorded and the trial Court
in fact came to a finding although wrongly that the Courts at Delhi had
jurisdiction. If I return the plaint in terms of the Order 7 Rule 10 of Code of
Civil Procedure, 1908 (CPC), it would mean an entire de novo trial including
RFA No.15/02 Page 3 of 6
fresh pleadings and fresh evidence. The suit was instituted in the year 1996
and today we are in 2011. Fifteen valuable years have already been gone by
and grave injustice would be caused if I direct return of the plaint. I feel that
issue, in this case, can be resolved by invoking my jurisdiction under Section
22 of CPC which reads as under:-
"Section 22. Power to transfer suits which may be
instituted in more than on Court.- Where a suit may be
instituted in any one of two or more Courts and is instituted in one
of such Courts, any defendant, after notice to the other parties,
may, at the earliest possible opportunity and in all cases where
issues are settled at or before such settlement, apply to have the
suit transferred to another Court, and the Court to which such
application is made, after considering the objections of the other
parties (if any), shall determine in which of the several Courts
having jurisdiction the suit shall proceed."
5. As per the aforesaid provision of Section 22 CPC, if a suit can be
filed in one or more Courts having jurisdiction, then, the defendant on a suit
having been filed in one Court, can apply for the suit to be transferred to
another Court having jurisdiction. The appellants/defendants in the present
case are taking up a case that the Courts in Jodhpur have jurisdiction and
therefore it will be in the fitness of things that instead of return of the plaint
under Order 7 Rule 10 CPC, the suit on the request of the
appellants/defendants, in terms of Section 22 CPC be transferred as a whole
to the competent Court at Jodhpur. I may note that the powers being
exercised by me are in accordance with the amendment to Section 24 of CPC
by Act 104 of 1976 whereby sub-section 5 was added to Section 24
empowering the transfer of a suit from the Court which did not have
RFA No.15/02 Page 4 of 6
jurisdiction to a Court which has jurisdiction. The object of this amendment
is that the valuable time, money and energy of the parties in having
conducted the litigation completely till the stage of final arguments should
not be wasted once it is found that the Court does not have territorial
jurisdiction.
6. Accordingly, while accepting the appeal, I exercise powers under
Section 22 CPC and direct that suit, as a whole, be transferred to competent
Court at Jodhpur. Let the complete file of the suit alongwith a copy of this
judgment be sent by the Registry of this Court to the Court of the Principal
District & Sessions Judge, Jodhpur so that the case can be marked by the
Principal District & Sessions Judge, Jodhpur to an appropriate Court for
disposal in accordance with law. I may once again clarify that the suit is
being transferred for being taken up by the Competent Court for final
arguments being heard and disposal thereafter in accordance with law.
Since the appeal has been heard exparte, the competent Court at Jodhpur
will issue notice to the respondent/plaintiff before hearing and disposing of
the suit. Appellants or their authorized representative or Advocate to appear
before the Principal District & Sessions Judge, Jodhpur on 6th September,
2011. Appeal is disposed of accordingly. The appellants had deposited the
decretal amount in this Court at the time of admission of appeal. The
Appellants will be entitled to the refund of monies subject to filing an
undertaking in the Court that in case of suit being finally decreed (including
RFA No.15/02 Page 5 of 6
the stages of appeal) against it, it will make the necessary payment to the
respondent/plaintiff without the necessity of having to file the execution
proceedings. Appeal is disposed of accordingly.
JULY 06, 2011 VALMIKI J. MEHTA, J.
Ne
