Delhi High Court
Romesh Power Products Pvt Ltd & Anr vs Pramod Gupta on 3 September, 2012
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 03.09.2012
% FAO (OS) No. 422/2012
ROMESH POWER PRODUCTS PVT LTD & ANR..... Appellants
Through: Ms. Anju Jain & Mr. Hitesh Sachar,
Advocates.
versus
PRAMOD GUPTA .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (Oral)
C.M. No. 15275/2012 (for exemption)
Exemption allowed, subject to all just exceptions.
FAO (OS) No. 422/2012 & C.M. No. 15274/2012 (for stay)
1. The appellants have preferred the present appeal to assail the order
dated 26.07.2012 passed by the learned Single Judge on the appellants'
interim application No. 1837/2011 preferred in CS(OS) No.243/2010,
whereby their said application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (Code), to seek rejection of the plaint on the ground that the
Court did not have territorial jurisdiction to entertain the suit, has been
rejected.
2. The respondent-plaintiff has preferred the aforesaid suit for recovery
on account of alleged non-payment of its dues by the appellant against the
supply of PVC compound. The case of the appellants in the said application
was that they have their office, and work for gain in Jaipur, Rajasthan and no
part of the cause of action has arisen within the territorial jurisdiction of this
Court. On the other hand, the case of the respondent-plaintiff was that the
agreement for supply of goods was entered into at Delhi, the goods were
supplied at Delhi on the terms & conditions printed on the invoices, the
invoices were issued in Delhi, and payments were also received at Delhi.
Consequently, the respondents claimed that part of cause of action had arisen
within the jurisdiction of the Court at Delhi.
3. The learned Single Judge has taken note of various decisions cited
before her, including A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P.
Agencies, Salem, AIR 1989 SC 1239. She has also referred to the pleading
contained in paragraph 13 of the plaint, wherein the respondent-plaintiff has
averred that the agreement to supply the goods was made at Delhi and the
goods were supplied from the godown of the respondent-plaintiff situated in
Delhi. One of the conditions provided on the invoices raised by the
respondent-plaintiff was "our responsibilities ceases the moment the goods
leave our godown". She has also taken note of a large number of bills filed
by the appellants themselves, raised by various carriers, to show that the
goods were consigned by the respondent-plaintiff from Delhi to be supplied
to the appellant No.1 in Jaipur. On this basis, she has observed that the
goods were handed over to the appellants' carrier at Delhi and the plaintiff
did not retain any right of disposal over the said goods. She observes that
the appellants did not controvert the aforesaid position. Consequently, she
observes that the property in the goods thus passed to the appellant No.1 the
moment they were handed over to the carrier for delivery to the appellant
No.1.
4. The learned Single Judge has also taken note of Sections 23 & 39(1)
of the Sale of Goods Act, 1930. Section 23 (2) provides that where, in
pursuance of a contract, the seller delivers the goods to the buyer or to a
carrier or other bailee (whether named by the buyer or not) for the purpose
of transmission to the buyer, and does not reserve the right of disposal, he is
deemed to have unconditionally appropriated the goods to the contract.
5. Section 39 (1) of the Sale of Goods Act provides that where, in
pursuance of sale, the seller is authorized or required to send the goods to
the buyer, delivery of the goods to a carrier, whether named by the buyer or
not, for the purpose of transmission to the buyer, or delivery of the goods to
a wharfinger for safe custody, is prima facie deemed to be a delivery of the
goods to the buyer.
6. In view of the aforesaid position, the learned Single Judge has held
that the goods in the present case were delivered by the respondent-plaintiff
to the appellants-defendants in Delhi and consequently, the contract was
performed at Delhi. The performance of the contract forms part of cause of
action to claim the amount due under the contract for goods supplied.
Consequently, she has come to the conclusion that the plaint could not be
rejected for want of territorial jurisdiction.
7. Independently, she has observed that while dealing with an application
under Order VII Rule 11 of the Code, the Court has to assume that the
averments made in the plaint are true & correct and on that basis, the
defendants' application is required to be examined. The respondent-plaintiff
has made a clear assertion in the plaint that the supply of goods was made at
Delhi from the plaintiff's godown situated at Delhi and the contract was
performed at Delhi. It was also asserted by the plaintiff that the appellants
had accepted the clause on the invoices that the Courts in Delhi would have
jurisdiction. If the said averments of the plaintiff are assumed to be true, by
virtue of Section 20(c) of the Code of Civil Procedure, 1908, this Court
would have territorial jurisdiction to entertain the suit as the cause of action
partly arises at the place of performance of the contract in a suit filed for
recovery for unpaid goods.
8. The submission of learned counsel for the appellants is that the case of
the plaintiff in the plaint is primarily founded upon self-serving condition
printed on the invoices issued to the appellants-defendants, according to
which the Courts at Delhi shall have the jurisdiction. She submits that,
firstly, the unilateral publication of the said condition on the invoices by the
respondent-plaintiff does not constitute a binding contract. It cannot be
assumed that the appellants accepted the said condition and are, therefore,
bound by the said condition. She, secondly, submits that even otherwise the
parties cannot confer jurisdiction by agreement on a Court which otherwise
does not have territorial jurisdiction.
9. We have heard learned counsel for the appellants and perused the
impugned order. We find absolutely no merit in this appeal and, in our view,
the impugned order is perfectly legal and justified. The learned Single Judge
has, on the basis of the exhibited documents and on the basis of the bills
raised by various carriers produced by the appellants-defendants concluded
that the delivery of the goods had taken place at the respondent-plaintiff's
godown at Delhi. She has also examined the effect of Section 23(2) and
Section 39(1) of the Sale of Goods Act,1930.
10. Independent of the aforesaid finding, the learned Single Judge has also
examined the averments made by the plaintiff in its plaint to the effect that
the agreement to supply the goods was made at Delhi, the contract was
performed at Delhi and the goods were supplied from the plaintiff's godown
situated at Delhi. Apart from that, the appellants-defendants, according to
the respondent-plaintiff, had accepted the jurisdiction of the Courts in Delhi
as per the terms & conditions printed on the bills/invoices. Therefore, we
find that there are multiple reasons given by the learned Single Judge to
conclude that the appellants' application under Order VII Rule 11 of the
Code of Civil Procedure, 1908 was meritless.
11. We have enquired from the learned counsel for the appellants whether
they had, at any point of time prior to the filing of the suit,
contemporaneously disputed the respondent's condition printed on its
invoices that the Courts at Delhi shall have jurisdiction. The answer is in the
negative. Therefore, it cannot be said at this stage that the parties did not
confer jurisdiction by their agreement on this Court and it also cannot be said
that this Court, otherwise, did not have territorial jurisdiction.
12. Consequently, the appeal and the stay application are dismissed with
Costs of Rs.10,000/- to be paid to the Advocates Welfare Fund.
VIPIN SANGHI, J.
SANJAY KISHAN KAUL, J.
SEPTEMBER 03, 2012
'BSR'
