Delhi High Court
Somya Salwan vs M/S Neesa Leisure Limited on 30 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 243/2017
% 30th July, 2018
SOMYA SALWAN ..... Appellant
Through: Mr. Rajesh Kumar, Advocate.
versus
M/S NEESA LEISURE LIMITED ..... Respondent
Through: Mr. Ajit Kumar, Ms. Nutan
Kumari, Mr. Ashwani Kumar
and Mr. Rahul Kumar Jha,
Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment of the Trial Court dated
15.9.2016 by which the trial court has dismissed the suit filed by the
appellant/plaintiff by holding that the trial court had no territorial
jurisdiction. Trial court has held that jurisdiction will be of the courts
at Gandhinagar in Gujarat because of existence of such a jurisdictional
clause in the two subject purchase orders placed upon the
appellant/plaintiff by the respondent/defendant.
2. The facts of the case are that with respect to the interior works
of the respondent/defendant to be done at two premises in Delhi, the
respondent/defendant placed two purchase orders upon the
appellant/plaintiff. The two Purchase Orders are dated 19.8.2008 and
which have been proved and exhibited as Ex.PW1/2 and Ex.PW1/3.
Both these purchase orders placed by the respondent/defendant upon
the appellant/plaintiff contained a clause that the territorial jurisdiction
will be of the courts at Gandhinagar in Gujarat.
3. Learned counsel for the appellant/plaintiff has argued that no
doubt the purchase orders mention jurisdiction of the courts at
Gandhinagar in Gujarat, however it is argued that parties by consent
cannot confer jurisdiction on a court which does not have jurisdiction
otherwise. It is argued that courts at Gujarat did not have jurisdiction
because whole or part of cause of action has not accrued at
Gandhinagar in Gujarat. Reliance in this regard has been placed upon
the judgment of the Supreme Court in the case of A.B.C. Laminart (P)
Ltd. and Another Vs. A.P. Agencies, Salem (1989) 2 SCC 163 and
which holds that essentially four courts will have jurisdiction i.e either
where the contract is executed or where the contract is to be performed
or where the payment under the contract has to be made or where the
defendant resides.
4(i) It is then argued on behalf of the appellant/plaintiff that
the only issue with respect to execution of the contract is that neither
parties of the contract reside at Gandhinagar in Gujarat nor payment is
to be made in Gandhinagar in Gujarat and nor the appellant/plaintiff is
residing or working for gain at Gandhinagar in Gujarat. As regards
the fourth aspect of entering into the contract, it is rightly argued by
the appellant/plaintiff that the Purchase Orders dated 19.8.2008 proved
as Ex.PW1/2 and Ex.PW1/3 are in the nature of offer letters and these
offer letters have been addressed to the appellant/plaintiff at New
Delhi and therefore the acceptance by the appellant/plaintiff will be at
New Delhi, and it is the place where acceptance is given is the place
ie. Delhi where the contract is finalized as having been entered into.
(ii) I agree with the arguments urged on behalf of the
appellant/plaintiff inasmuch as parties by consent cannot confer
jurisdiction on the court which has none inasmuch as neither the
contract is executed at Gandhinagar in Gujarat nor is the same to be
performed at Gandhinagar in Gujarat nor any payment is to be made to
the respondent/defendant at Gandhinagar in Gujarat and nor is the
appellant/plaintiff residing or working for gain at Gandhinagar in
Gujarat. As already stated above, the Purchase Orders dated 19.8.2008
Ex.PW1/2 and Ex.PW1/3 are in the nature of offers, and which have
been accepted by the respondent/defendant at Delhi as the purchase
orders have been addressed to the appellant/plaintiff at 114, Jor Bagh,
New Delhi.
4. In view of the aforesaid discussion, this appeal is allowed. The
impugned Judgment of the Trial Court dated 15.9.2016 is set aside. It
is held that the trial court had territorial jurisdiction to decide the suit.
Since evidence in the suit is already led by both the parties, now the
trial court will decide the other issues framed in the suit in accordance
with law. Accordingly, this appeal is allowed with costs of
Rs.10,000/- in favour of the appellant/plaintiff and against the
respondent/defendant. Costs will be paid to the appellant/plaintiff
before the trial court at the stage of final arguments.
5. Parties to appear before the District and Sessions Judge, South
District, Saket Courts, New Delhi on 30.8.2018 and the District and
Sessions Judge will now mark the suit for disposal to a competent
court in accordance with law.
JULY 30, 2018/ib VALMIKI J. MEHTA, J
