Toyota Techno Park India Private ... vs Ecoren Energy India Private ...
2022 Latest Caselaw 5538 Kant

                         -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF MARCH, 2022

                      PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                        AND

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

         COMMERCIAL APPEAL NO.60 OF 2022

BETWEEN:

TOYOTA TECHNO PARK INDIA
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE
COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE
AT PLOT NO.20
BIDADI INDUSTRIAL AREA
BIDADI TALUKA AND
DISTRICT: RAMANGARA - 562 109
(REPRESENTED BY ITS AUTHORISED SIGNORY)
                                      ...APPELLANT

(BY SRI SHRIDHAR PRABHU, ADVOCATE)

AND

1.     ECOREN ENERGY INDIA PRIVATE LIMITED
       A COMPANY INCORPORATED UNDER
       THE PROVISIONS OF
       THE COMPANIES ACT, 1956
       HAVING ITS REGISTERED OFFICE AT
       NO.1202, 1215A DOOR
       NO.8-2-293/82/A/1202
       S.L. JUBILEE, ROAD NO.61
       JUBILEE HILLS
       HYDERABAD - 500 003
       (REPRESENTED BY ITS
       MANAGING DIRECTOR
       MR.LAKSHMI PRASAD YERNENI)
                           -2-



2.     MULLUR SOLAR PARK PRIVATE LIMITED
       A COMPANY INCORPORATED UNDER
       THE PROVISIONS OF THE
       COMPANIES ACT, 1956
       HAVING ITS REGISTERED OFFICE
       AT NO.1202, 1215A
       DOOR NO. 8-2-293/82/A/1202
       S.L. JUBLIEE
       ROAD NO. 61
       JUBILEE HILLS
       HYDERABAD - 500 003
       (REPRESENTED BY ITS DIRECTOR
       MR. CHERUKURI VENKAT).

3.     SUNIL KUMAR TALLA
       MAJOR
       PRESENTLY WORKING AS THE DIRECTOR
       ECOREN ENERGY INDIA PRIVATE LIMITED
       HAVING HIS OFFICE AT
       DOOR NO. 8-2-293/82/A/1202
       S.L. JUBILEE
       ROAD NO. 61, JUBILEE HILLS
       HYDERABAD -500 003.
                                      ...RESPONDENTS

(BY SRI SREENIVASA RAGHAVAN, SENIOR ADVOCATE FOR
    SRI ABHINAY V., ADVOCATE FOR C/R-1 & R2)


       THIS COMAP IS FILED UNDER SECTION 13(1-A) OF
THE COMMERCIAL COURTS ACT, PRAYING TO CALL FOR
RECORDS AND ISSUE TO SET ASIDE THE ORDER DATED
21ST DECEMBER, 2021, PASSED BY THE LEARNED LXXXVII
ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-88) IN
COM.     O.S.   NO.693/2021     PRODUCED   HEREIN   AS
ANNEXURE-A AND ETC.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
S.R.KRISHNA KUMAR J. DELIVERED THE FOLLOWING:
                                      -3-


                             JUDGMENT

This appeal by the plaintiff in Com.O.S.No.693/2021

is directed against the impugned order dated 21.12.2021

passed in Com.O.S.No.693/2021 by LXXXVII Additional City

Civil Judge (Exclusive Dedicated Commercial Court)

Bengaluru whereby, the Commercial Court returned the

plaint filed by the appellant/plaintiff by coming to the

conclusion that the suit is barred on account of lack/want of

territorial jurisdiction on the part of the Commercial Court.

2. Heard learned counsel for the appellant and

learned Senior counsel for the respondents and perused the

material on record.

3. A perusal of the material on record indicates

that the appellant/plaintiff instituted the aforesaid suit

against the respondents/defendants for declaration that the

termination notice dated 07.07.2021 issued by respondent

No.2/defendant No.2 was illegal, void ab initio and not

binding on the plaintiff and for other reliefs. The

respondents who contested the suit filed an application

under Order 7 Rule 10 of Code of Civil Procedure (for short

'CPC') seeking return of the plaint on the ground that the

Commercial Court did not have territorial jurisdiction to

adjudicate upon the issues involved in the suit. The

appellant/plaintiff having opposed the said application, the

Commercial Court proceeded to pass the impugned order

allowing the application and thereby, directing return of the

plaint to be presented before the proper Court having

territorial jurisdiction.

4. In addition to reiterating various contentions

urged in the appeal, learned counsel for the appellant

submits that the Commercial Court committed an error in

coming to the conclusion that it did not have territorial

jurisdiction to adjudicate upon the suit. In this context,

learned counsel invites our attention to the Solar Power

Purchase Agreement dated 27.11.2017 in order to point out

that the said agreement having been executed at Bengaluru

including M/s.Atria Energy Services Private Limited as one

of the parties, which had its office at Bengaluru, the

Commercial Court at Bengaluru has territorial jurisdiction to

decide the suit and consequently, the impugned order

passed by the Commercial Court coming to the conclusion

that it did not have territorial jurisdiction to adjudicate upon

the suit was incorrect, erroneous and deserves to be set

aside. It is also submitted that the impugned order passed

by the Commercial Court suffers from several other

illegalities and infirmities resulting in erroneous conclusion

and warranting interference by this Court in the present

appeal. It is also contended that in view of the specific bar

contained in Sections 91 and 92 of the Indian Evidence Act,

it was impermissible either to prove or disprove the

contents of the undisputed Solar Power Purchase

Agreement dated 27.11.2012, which categorically states

that the agreement was executed at Bengaluru and as

such, the Commercial Court clearly had territorial

jurisdiction to adjudicate upon the suit.

5. Per contra, learned Senior Counsel for the

respondents submits that notwithstanding the fact that the

agreement recites that it was executed at Bengaluru, in

reality the agreement was executed at Ramanagara and/or

Hyderabad which were beyond the territorial jurisdiction of

the Commercial Court at Bengaluru and accordingly, the

trial Court came to the correct conclusion that it did not

have territorial jurisdiction to adjudicate upon the suit. It

was also pointed out that the factum of execution of the

agreement by the parties at Ramanagara and Hyderabad

was not disputed by the appellant before the Trial Court

and as such, no portion/part of cause of action had arisen

in Bengaluru so as to enable the Commercial Court at

Bengaluru to adjudicate upon the suit. It is also contended

that in view of the well settled principle of law that for the

purpose of considering an application under Order 7 Rule 10

of CPC, it is only plaint averments that can be looked into,

it was incumbent upon the appellant to assert in the plaint

itself that the part/portion of cause of action had arisen at

Bengaluru and in the absence of such assertion which was

conspicuously absent in the plaint, the Commercial Court

was fully justified in coming to the correct conclusion that it

did not have territorial jurisdiction to adjudicate upon the

suit. It is therefore submitted that the impugned order

passed by the Commercial Court returning the plaint was

perfectly just and proper and the impugned order does not

warrant interference by this Court in the present appeal.

6. After having heard learned counsel for the

appellant and learned Senior counsel for the respondents, a

perusal of the material on record discloses that issue with

regard to whether cause of action for the suit arose in

Bengaluru or Ramanagar is essentially a mixed question of

fact and law which would have to be adjudicated as a

preliminary issue along with other issues as contemplated

under Order 14 Rule 2 (2) (a) of the CPC which would

involve giving an opportunity to both sides to adduce both

oral and documentary evidence in support of their

respective claims.

7. Accordingly, since there exists a serious dispute

with regard to territorial jurisdiction of the Trial Court

(Commercial Court at Bengaluru) to adjudicate upon the

instant suit involving recording of both oral and

documentary evidence, we are of the considered opinion

that the impugned order passed by the Commercial Court

deserves to the set aside and the matter is required to be

remitted back to the Commercial Court for reconsideration

of the issue regarding territorial jurisdiction afresh as a

preliminary issue before proceeding further in the matter.

8. In the result, we pass the following:

ORDER

i) The appeal is hereby allowed.

ii) The impugned order dated 21.12.2021 passed in Com.O.S.No.693/2021 is hereby set aside.

       iii)     The    matter    is    remitted         back    to     the
                Commercial       Court      for        reconsideration

afresh by directing the Commercial Court to frame an issue regarding territorial jurisdiction as a preliminary issue and thereafter proceed further in the matter.

     iv)   Liberty       is     reserved    in    favour     of   the
           respondents/defendants                to   file   written
           statement.

     v)    Liberty is also reserved in favour of the
           parties        to      adduce     both       oral      and

documentary evidence in support of their respective claims.

vi) All rival contentions urged by learned counsel for the appellant as well as learned Senior counsel for the respondents on all the aspects of the matter as stated above are kept open and no opinion is expressed on the same.

In view of setting aside of the impugned order and

remitting the matter back to the Commercial Court, the

Registry is directed to refund the Court fee paid on the

memorandum of appeal in terms of Section 64 of the

Karnataka Court Fee and Suit Valuation Act, 1958.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

VM