Karnataka High Court
Narendra Swain And Co vs M/S Skl Grapes on 8 January, 2025
Author: R Devdas
Bench: R Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE R.DEVDAS
WRIT PETITON NO. 18357 OF 2024 (GM-CPC)
BETWEEN
1. NARENDRA SWAIN AND CO
FRUITS AND VEGETABLE
COMMISSION AGENT
CHHATRA BAZAR, CUTTACK 781014
REP BY ITS AUTHORIZED PERSON
MR. NARENDRA SWAIN
MICRO SMALL & MEDIUM ENTERPRISES
2. MR. NARENDRA SWAIN
AGED ABOUT 63 YEARS
S/O LATE MAHENDRA SWAIN
PARTNER NARENDRA SWAIN AND CO.,
OFFICE AT CHHATRA BAZAAR, CUTTACK 781014
3. MR. JAHENDRA SWAIN
AGED ABOUT 60 YEARS
S/O LATE MAHENDRA SWAIN
PARTNER NARENDRA SWAIN AND CO.,
OFFICE AT CHHATRA BAZAAR, CUTTACK 781014
4. MR. RABINDRA KUMAR SWAIN
AGED ABOUT 43 YEARS
S/O SURENDRA SWAIN
PARTNER NARENDRA SWAIN AND CO.,
OFFICE AT CHHATRA BAZAAR, CUTTACK 781014
...PETITIONERS
(BY SRI. BISWAJIT DAS., ADVOCATE A/W
SRI. SHIVAKUMAR., ADVOCATE)
-2-
AND
M/S SKL GRAPES
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO. 270, 36 A CROSS
7TH BLOCK, JAYANAGAR
BENGALURU 560 082
REP BY ITS PARTNER
MS. KOMALA K
.......RESPONDENT
(BY SRI. A. SAMPATH., ADVOCATE )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN
COM. OS 1458/2023, PENDING ON THE FILE OF HONBLE COURT
OF LXXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE
(COMMERCIAL COURT) (CCH-85) AND TO SET ASIDE THE ORDER
DATED 10/06/2024 MADE IN IA NO. 1 IN COM. OS NO.
1458/2023, VIDE ANNEXURE-A. PASSED BY LXXXIV ADDL CITY
CIVIL AND SESSION JUDGE (COMMERCIAL COURT) AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 03.09.2024 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE R DEVDAS
CAV ORDER
(PER: HON'BLE MR JUSTICE R DEVDAS)
This writ petition is filed by the petitioners who were
defendants before the Commercial Court, Bengaluru, being
aggrieved of the rejection of their interlocutory application
filed under Order VII Rule 11(a) of the Code of Civil
Procedure, 1908. For the sake of convenience, the parties
shall be referred to in terms of their ranking before the
Commercial Court.
2. The plaintiff filed the suit in Com.O.S.No.1458/2023
seeking judgment and decree against the defendants for a
sum of Rs.69,36,913/-, which payment fell due from the
defendants in respect of supply of fruits made by the plaintiff
to the defendants. When the evidence of the plaintiff
witnesses was being recorded, the said interlocutory
application under Order VII Rule 11(a) of CPC, was filed by
the defendants for rejection of the plaint on the ground that
there is no cause of action and for want of territorial
jurisdiction. It was contended by the defendants that there
was no written contract between the parties and at no point
of time, did the defendants have any transaction with the
plaintiffs at Bengaluru. It was contended that the defendants
were carrying on business through the commission agents of
various persons and entities, including the plaintiffs, at
Cuttack in Odisha. It was further contended that even as per
the invoices tendered as evidence at the hands of the
plaintiff, issued by the defendants, it was clear that the
transaction would be subject to Cuttack jurisdiction.
However, the Commercial Court passed the impugned order,
rejecting the application and therefore, the defendants are
before this Court, invoking Article 226 of the Constitution of
India. It should be noticed that from the facts narrated
hereinabove, it is clear that the petitioners herein should
have invoked Article 227 and not Article 226.
3. Learned Counsel for the defendants vehemently
contended that the Trial Court has erred in accepting the
contentions of the plaintiff that in terms of Section 20(c) of
the Code of Civil Procedure, the suit could be instituted in
Bengaluru, since part of the cause of action arose in
Bengaluru. It is submitted that no part of the cause of action
arose in Bengaluru, since admittedly, the defendants never
came to Bengaluru seeking supply of fruits. It is contended
that the plaintiff is in the business of supplying fruits to
various parts of the country and the defendants, who are
carrying on business at Cuttack, approached the commission
agents of the plaintiff who are in Cuttack and at no point of
time, the defendants had any direct transaction with the
plaintiff at Bengaluru. Emphasis was also laid on the
definition of the word 'commercial dispute', as defined in
Section 2(1)(c) of the Commercial Courts Act, 2015, and
definition of the word 'document', as found in clause (f) of
the same Section. It was contended that there was no
written agreement between the parties and the suit was
based on the invoices raised by the defendants, at Cuttack.
4. Learned Counsel for the defendants sought to place
reliance on the following judgments:
i) A.B.C Laminart Pvt. Ltd. And Another Vs. A.P.
Agencies, Salem (1989) 2 SCC 163;
ii) A.V.M Sales Corporation Vs. Anuradha Chemicals
Pvt. Ltd. (2012) 2 SCC 315;
iii) Maharashtra Chess Association Vs. Union of India
and Others (2020) 13 SCC 285;
iv) Oil and Natural Gas Commission Vs. Utpal Kumar
Basu and Others (1994) Supp. 1 SCR 252 and
v) National Textile Corporation Ltd., and Others Vs.
Haribox Swalram and Others (2004) 9 SCC 786.
5. Per contra, learned Counsel for the plaintiff
contended that the Commercial Court has rightly held,
having regard to the decision of the Madras High Court in
M/s. Patel Bros. Vs. M/s. Vadilal Kashidas Ltd., (1958)
SCC OnLine Mad. 199, that merely because the invoice
raised by the defendants has the printed words 'subject to
Cuttack jurisdiction', it would not amount to a contract that
both the parties agreed to have Cuttack as the venue for
settlement of disputes.
6. Having heard the learned Counsels for the parties
herein and on perusing the petition papers, the question that
arises for consideration, is whether the Trial Court has
committed any error in rejecting the application filed by the
defendants invoking Order VII Rule 11(a) of CPC ? However,
it should be noticed that the plea regarding want of territorial
jurisdiction and therefore, the prayer to reject the plaint
invoking Rule 11 of Order VII is not appropriate. In fact,
Rule 10(A) of Order VII enables a defendant to raise such a
plea and in terms of sub-rule (3), of Rule 10(A), the Court is
required to return the plaint on the ground that it has no
jurisdiction to try the suit, subject to the other requirements
of the said provision. Nevertheless, the Trial Court and the
parties have proceeded on the premise that Rule 11 would
enable the Court to pass such an order returning the plaint.
Therefore, without standing on technicalities, this Court
proceeds to consider the case accordingly.
7. The decisions relied upon by the learned Counsel for
the defendants arise out of the Arbitration and Conciliation
Act. All the decisions have a common thread running
between them. It has been held in those decisions that a
clause in the agreement between the parties clearly indicate
as to the vesting of the jurisdiction in a particular Court.
When the clause is clear, unambiguous and specific, accepted
notions of contract would bind the parties and unless the
absence of ad idem can be shown, the other Courts should
avoid exercising jurisdiction. In A.B.C Laminart (supra), it
has been held, as regards construction of the ouster clause
when words like 'alone' 'only', exclusive' and the like have
been used, there may be no difficulty. Even without such
words, in appropriate cases, the maxim 'expressio unius est
exclusio alterius' - expression of one is the exclusion of the
another - may be applied.
8. This Court had an occasion to consider such
contention in a Civil Miscellaneous Petition filed under Section
11(6) of the Arbitration and Conciliation Act, 1996, in
Natural Remedies Pvt. Ltd., Vs. ECGC Ltd., (2023) SCC
OnLine Kar. 284. This Court noticed that the Hon'ble Apex
Court, in the case of Ravi Ranjan Developers Pvt. Ltd. Vs.
Aditya Kumar Chaterjee (2022) SCC OnLine SC 568 held
in paragraph Nos.23 and 24 as hereunder:
23. Subject to the pecuniary or other limitations
prescribed by any law, suits for recovery of immovable
property or determination of any other right to or interest in
an immovable property or compensation for wrong to
immovable property, is to be instituted in the Court, within
the local limits of whose jurisdiction, the property is
situated. Certain specific suits relating to immovable
property can be instituted either in the Court within the
limits of whose jurisdiction the property is situated, or in the
Court within the local limits of whose jurisdiction the
Defendant actually or voluntarily resides or carries on
business.
24. All other suits are to be instituted in a Court, within
the local limits of whose jurisdiction the Defendant
voluntarily resides or carries on business. Where there is
more than one Defendant, a suit may be instituted in the
Court within whose jurisdiction any of the Defendants
voluntarily resides or carries on business. A suit may also be
instituted in a Court within whose jurisdiction the cause of
action arises either wholly or in part.
9. It is therefore clear, in terms of Sections 16 and 17
of CPC and in terms of the law laid down by the Hon'ble Apex
Court, insofar as suits arising out of immovable properties
are concerned, they shall be filed only in the Court within the
local limits of whose jurisdiction the immovable property is
situated. It is also clear from Section 20(c) of CPC, that a
suit not arising from an immovable property, can be
instituted in a Court within the local limits of whose
jurisdiction the cause of action, wholly or in part, arises.
10. Applying the law as declared by the Hon'ble
Supreme Court, this Court finds in the present case, that
admittedly there is no written agreement between the
parties. Therefore, it would be futile on the part of the
defendants to contend that there is an agreement between
the parties restricting the jurisdiction of the Courts to decide
the disputes between the parties, in terms of the invoices
raised by the defendants. Reliance placed by the Trial Court
on M/s. Patel Bros. (supra), where it was held that the
jurisdiction of a Court cannot be taken away merely because
in the letter head of the defendant he had printed the words
'subject to Berhampur jurisdiction', cannot be faulted. This
Court concurs with the opinion of the Madras High Court,
where it was held that such words were not sufficient to
constitute a contracting out of the jurisdiction of a particular
Court or vesting it in a particular Court. It is not disputed by
the defendants that in the said invoices the address of the
plaintiff is printed as 'Bangalore' and the communication
between the parties also refer to the address of the plaintiff
at Bangalore. Therefore, the invocation of the jurisdiction of
the Commercial Court at Bengaluru, in terms of clause (c) of
Section 20 of the Code of Civil Procedure is permissible. It is
permissible for the plaintiff to contend that a part of the
cause of action arose in Bengaluru.
11. For the reasons stated above, this Court is of the
considered opinion that there is no merit in the writ petition.
12. The writ petition is accordingly dismissed.
Sd/-
(R DEVDAS)
JUDGE
JT/-
CT: JL
