M/S G.T. Sales Corporation vs M/S Hindustan Construction Co. ...
2017 Latest Caselaw 2168 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        FAO No. 419/2016

%                                                     2nd May, 2017

M/S G.T. SALES CORPORATION                            ..... Appellant
                   Through:           Mr. Rajeev Saxena and Ms.
                                      Namrata Chauhan, Advocates.
                         versus

M/S HINDUSTAN CONSTRUCTION CO. LTD.     ..... Respondent

Through: Mr. Arnav Kumar, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal is filed under Order XLIII Rule (1)(a) of

the Code of Civil Procedure, 1908 (CPC) against the impugned order

of the Trial Court dated 6.5.2016 returning the suit plaint under Order

VII Rule 10 CPC for being filed at the competent court at Mumbai.

2. The facts of the case are that the appellant/plaintiff filed

the subject suit for recovery of Rs. 3,50,885/- on the ground that the

appellant/plaintiff as a seller had supplied machineries to the

respondent/defendant for its project at Uri, Baramula, Jammu and

Kashmir. Appellant/plaintiff has prayed for a decree in the suit on

account of non-payment of the price of the machineries supplied and

which amounts are therefore sought to be recovered through the

subject suit.

3. Respondent/defendant after appearing filed an application

under Order VII Rule 10 CPC stating that in terms of the purchase

orders issued by the respondent/defendant upon the appellant/plaintiff,

there was an exclusive jurisdiction of the High Court of Mumbai, and

accordingly, the courts at Delhi would not have territorial jurisdiction.

4. In law parties can enter into an agreement whereby where

more than one court has jurisdiction then exclusive jurisdiction will be

vested with one court. Of course, parties by consent cannot confer

jurisdiction on a court which does not have any.

5. In the present case, the registered office of the

respondent/defendant is at Mumbai and the appellant/plaintiff has not

pleaded that respondent/defendant has any branch office at Uri,

Baramula, Jammu and Kashmir for the courts not at Mumbai but at

Uri, Baramula, Jammu and Kashmir to have jurisdiction vide Patel

Roadways Limited, Bombay vs. Prasad Trading Company, (1991) 4

SCC 270. Therefore, if the subject clause in the purchase order issued

by the respondent/defendant upon the appellant/plaintiff contains a

clause giving exclusive jurisdiction to the courts at Mumbai then the

courts at Delhi would not have territorial jurisdiction.

6. The subject clause as regards jurisdiction in the purchase

order issued by the respondent/defendant upon the appellant/plaintiff

reads as under:-

"Jurisdiction:-

This purchase order is governed as per Indian Laws and the appropriate court(s) having jurisdiction will be the High Court in Mumbai only"

7. As per the aforesaid clause therefore apparently only the

High Court at Mumbai would have exclusive territorial jurisdiction.

However, the subject suit is a suit for recovery of only Rs. 3,50,885/-,

and the pecuniary jurisdiction for filing of a suit in the High Court of

Mumbai is admittedly Rs. 1 crore and above. Once that is so, the

subject jurisdiction in this case would be nugatory so far as present

dispute is concerned because the present dispute is not of pecuniary

jurisdiction over Rs. 1 crore. If the disputes between the parties

pertained to monetary claims of either of the parties in excess of Rs. 1

crore only then the High Court of Mumbai would have had exclusive

jurisdiction vide Hanil Era Textiles Ltd. vs. Puromatic Filters (P)

Ltd. (2004 ) 4 SCC 671.

8. It is not in dispute that Delhi courts have jurisdiction

because as per the plaint payment had to be made by the

respondent/defendant to the appellant/plaintiff at Delhi on account of

supplies of machineries made by the appellant/plaintiff to the

respondent/defendant. In any case, this is a disputed question of fact

which will require trial in case the respondent/defendant disputes that

payments were not to be made at Delhi.

9. Accordingly, though in principle the impugned order of

the court below is correct that parties if agree exclusive jurisdiction of

one court where more than one court has territorial jurisdiction, only

such court would have jurisdiction, however on facts of this case the

impugned order is not correct because the High Court of Mumbai

which has exclusive jurisdiction as per the subject clause cannot

entertain the subject suit on account of its pecuniary jurisdiction being

above Rs.1 crore.

10. In view of the above discussion, impugned order dated

6.5.2016 is set aside. The application under Order VII Rule 10 CPC

will stand dismissed, however, whether or not courts at Delhi

otherwise have jurisdiction, if disputed by the respondent/defendant

will be an issue in the suit and will be decided after leading of evidence

and at the stage of final arguments.

11. The appeal is allowed and disposed of in terms of the

aforesaid observations.

12. Parties are directed to appear before the District and

Sessions Judge, Tis Hazari Courts (Central District) on 22nd May, 2017

and the District and Sessions Judge will mark the suit for disposal to a

competent court in accordance with law.

MAY 02, 2017/ib                              VALMIKI J. MEHTA, J