Delhi High Court
M/S Sarv Webs Pvt Ltd vs M/S Star Rural Bus Links on 2 August, 2016
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 02.08.2016
+ CM(M) 259/2016
M/S SARV WEBS PVT LTD ..... Petitioner
Through Ms.Ankita Chaudhary Rathi,
Advocate
versus
M/S STAR RURAL BUS LINKS ..... Respondent
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CM Nos. 9479-80/2016 (exemptions)
Allowed subject to all just exceptions.
CM(M) 259/2016 & CM No. 9478/2016 (direction)
1. By the present petition, the petitioner seeks to impugn the order dated
08.01.2016 by which an application under Order XIV Rule 5 read with
Section 151 CPC filed by the petitioner for framing of additional issues
regarding the territorial jurisdiction of the court was dismissed.
2. A perusal of the impugned order shows that the trial court took the
view that earlier the petitioner had moved an application under Order VII
Rule 11 CPC which was dismissed on 18.02.2015. There were certain
observations made in the said order dated 18.02.2015 that this court had the
territorial jurisdiction while placing reliance on the judgment of this court.
Hence, the application was dismissed.
3. A perusal of the written statement shows that the petitioner had
specifically taken the plea that no part of the cause of action arose in the
CM(M) 259/2016 Page 1
territorial jurisdiction of Delhi. In para 5 of the preliminary objections, it is
stated that the respondent has produced fabricated documents being an e-
mail dated 02.10.2013 containing the terms and conditions which
specifically mentioned that Jaipur courts would have jurisdiction for all
disputes. It is urged that the respondent has deliberately removed/hidden this
line while producing a copy thereof. Hence, it is the contention of the
defendant that only the courts situated at Jaipur would have the territorial
jurisdiction to try the suit.
4. So far as the disposal of the application of the petitioner under Order
VII Rule 11 CPC is concerned, the said order cannot be said to be a final
adjudication of the contention raised by the petitioner. A plaint is liable to
be rejected under Order VII Rule 11 CPC in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff,
on being required by the court to correct the valuation
within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint
is written upon paper insufficiently stamped, and the
plaintiff, on being required by the court to supply the
requisite stamp paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the plaint to
be barred by any law;
5. Reference may be had to the judgement of this court in the case of
Tilak Raj Bhagat vs. Ranjit Kaur, 159 (2009) DLT 470 wherein it was held
as follows:-
"6. It may be worthwhile to mention here that while
considering an application under Order 7 Rule 11 CPC, the
CM(M) 259/2016 Page 2
Court has to look at the averments made in the plaint by taking
the same as correct on its face value as also the documents filed
in support thereof. Neither defence of the defendant nor
averments made in the application have to be given any
weightage. Plaint has to be read as a whole together with the
documents filed by the plaintiff."
To the same effect are the judgements of the Division Bench of this
Court in the case of Indian City Properties Ltd. Vs. Vimla Singh 198(2013)
DLT 432 and in the case of Inspiration Clothes & U vs. Collby
International Ltd., 88(2000) DLT 769.
6. It is the settled position of law, while considering an application under
Order 7 Rule 11 CPC, the court can only look at the averments in the
plaint/counter claim and the accompanying documents presuming them to be
correct. The defence of the defendant is not material for adjudication of the
application.
7. In the light of the above legal position, the finding recorded on
18.02.2015 by the trial court while dealing with the application under Order
7 Rule 11 CPC cannot be said to have finally disposed of the contention of
the petitioner about territorial jurisdiction. The contentions of the petitioner
could not be gone into.
8. It may be noted that the contentions of the petitioner in the written
statement is that (a) no part of cause of action has arisen in Delhi and (b)
there is, in any case, an ouster clause which has been subsequently
suppressed by the respondent and that as per the said ouster clause only the
courts situated in Jaipur would have territorial jurisdiction to try the suit.
9. In the light of the contentions of the learned counsel for the petitioner,
we may have a look at the judgment of the Supreme Court in the case of M/s
CM(M) 259/2016 Page 3
Swastik Gases Pvt. Ltd. v. Indian Oil Corporation Ltd., CA No.5086/2013,
decided on 03.07.2013, (2013) 7 S.C.R. 581 in which the court while
interpreting the ouster clause held as follows:
"31.In the instant case, the appellant does not dispute that part
of cause of action has arisen in Kolkata. What appellant says is
that part of cause of action has also arisen in Jaipur and,
therefore, Chief Justice of the Rajasthan High Court or the
designate Judge has jurisdiction to consider the application
made by the appellant for the appointment of an arbitrator
under Section 11. Having regard to Section 11(12)(b) and
Section 2(e) of the 1996 Act read with Section 20(c) of the
Code, there remains no doubt that the Chief Justice or the
designate Judge of the Rajasthan High Court has jurisdiction
in the matter. The question is, whether parties by virtue of
clause 18 of the agreement have agreed to exclude the
jurisdiction of the courts at Jaipur or, in other words, whether in
view of clause 18 of the agreement, the jurisdiction of Chief
Justice of the Rajasthan High Court has been excluded. For
answer to the above question, we have to see the effect of the
jurisdiction clause in the agreement which provides that the
agreement shall be subject to jurisdiction of the courts at
Kolkata. It is a fact that whilst providing for jurisdiction clause
in the agreement the words like 'alone', 'only', 'exclusive' or
'exclusive jurisdiction' have not been used but this, in our view,
is not decisive and does not make any material difference. The
intention of the parties - by having clause 18 in the
agreement - is clear and unambiguous that the courts at
Kolkata shall have jurisdiction which means that the courts at
Kolkata alone shall have jurisdiction. It is so because for
construction of jurisdiction clause, like clause 18 in the
agreement, the maxim expressio unius est exclusio alterius
comes into play as there is nothing to indicate to the contrary.
This legal maxim means that expression of one is the exclusion
of another. By making a provision that the agreement is subject
to the jurisdiction of the courts at Kolkata, the parties have
impliedly excluded the jurisdiction of other courts. Where the
contract specifies the jurisdiction of the courts at a particular
CM(M) 259/2016 Page 4
place and such courts have jurisdiction to deal with the
matter, we think that an inference may be drawn that parties
intended to exclude all other courts. A clause like this is not hit
by Section 23 of the Contract Act at all. Such clause is neither
forbidden by law nor it is against the public policy. It does not
offend Section 28 of the Contract Act in any manner.
32. The above view finds support from the decisions of
this Court in Hakam Singh, A.B.C. Laminart, R.S.D.V.
Finance, Angile Insulations, Shriram City, Hanil Era Textiles
and Balaji Coke."
10. Hence, where an ouster clause is pleaded, the court will have to go
into the issue and to see whether in view of the ouster clause, the courts in
Delhi would not have jurisdiction to try the case. In my opinion, in view of
the said legal position, it would be an appropriate case where the petitioner
is permitted to move the trial court for review of the order rejecting its
application under Order 14 Rule 5 CPC.
11. Accordingly, granting liberty to the petitioner to move the trial court
for review of the order dated 08.01.2016 by which the application of the
petitioner under Order XIV Rule 5 CPC was dismissed, the present petition
is disposed of.
12. The petitioner is granted liberty to move a review petition within two
weeks from today. In case such review petition is filed, the same may be
considered by the trial court in accordance with law.
13. A copy of this order be given dasti under the signature of the court
master to the parties.
JAYANT NATH, J.
AUGUST 02, 2016/v
CM(M) 259/2016 Page 5
