M/S Bhilangana Hydro Power Ltd. vs M/S A.R Tradelinks
2014 Latest Caselaw 4378 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
C.R.P.No.137/2014 and C.M.Nos.15029/2014 (exemption) & 15030/2014
(stay)

%                                                11th September, 2014

M/S BHILANGANA HYDRO POWER LTD.               ......Petitioner
                 Through: Mr.Alok Kumar with Mr.Abhayveer
                          Sharma and Ms.Somya Yadav,
                          Advocates.

                          VERSUS
M/S A.R TRADELINKS                                        ...... Respondent

Through:

C.R.P.No.138/2014 and C.M.Nos.15031/2014 (exemption) & 15032/2014 (stay)

M/S BHILANGANA HYDRO POWER LTD. ......Petitioner Through: Mr.Alok Kumar with Mr.Abhayveer Sharma and Ms.Somya Yadav, Advocates.

                          VERSUS
M/S A.RPROJECTS                                           ...... Respondent
                          Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of these petitions under Section 115 of the Code

of Civil Procedure, 1908 (CPC) is to the impugned order of the trial court

dated 23.7.2014 which has refused to consider the issue of territorial

jurisdiction as a preliminary issue and has fixed the suit for

plaintiff's/respondent's evidence.

2. No doubt, counsel for the petitioner/defendant correctly refers to the

order of the trial court dated 21.11.2012 which treated the issue of territorial

jurisdiction framed on 05.9.2012 as a preliminary issue and accordingly it is

urged that once the issue is decided to be treated as a preliminary issue the

issue of territorial jurisdiction should have been decided as a preliminary

issue and the trial court vide impugned order dated 23.7.2014 could not have

fixed the case for plaintiff's evidence, however, independent of the order

passed by the trial court on 21.11.2012, in law, issue no.1 framed on

05.9.2012 pertaining to the territorial jurisdiction cannot be treated as a

preliminary issue because an issue can only be treated as a preliminary issue

if it is a legal issue i.e an issue can be treated as a preliminary issue if for

deciding the same no evidence is required. Once however the issue involves

trial required to be conducted on disputed questions of fact, such an issue

cannot be decided as a preliminary issue.

3. A reference to para 4 of the plaint shows that as per the

respondent/plaintiff, a contract was concluded at Delhi. Though no copy of

the written statement has been filed before this Court, counsel for the

petitioner/defendant states that this is disputed and it is contended that the

courts at Delhi have no territorial jurisdiction. Once the issue of territorial

jurisdiction is a disputed question of fact, the same cannot be tried as a

preliminary issue, and which can and will be heard and disposed of only at

the time of final arguments and after evidence is led by the parties.

4. The petitions are dismissed in terms of the aforesaid observations,

leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J SEPTEMBER 11, 2014 KA