Om Agrawal vs M/S Sam Industries Limited
2023 Latest Caselaw 17784 MP

                                                             1




                                IN THE HIGH COURT OF MADHYA PRADESH

                                                    AT I N D O R E
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
                                           ON THE 26th OF OCTOBER, 2023
                                             FIRST APPEAL No. 156 of 2021

                           BETWEEN:-
                           OM AGRAWAL S/O SHRI MOHAN LAL 46
                           NEW BANK COLONY LOKENDRA
                           BHAWAN (MADHYA PRADESH)
                                                                                 .....APPELLANT
                           SHRI ABHINAV MALHOTRA, ADVOCATE

                           AND
                           M/S  SAM   INDUSTRIES  LIMITED
                           THROUGH CHAIRMAN MR. ASHUTOSH
                           A MAHESHWARI REGD. OFFICE AT
                           DAKACHIYA, A.B. ROAD, TEHSIL
                           SANWER INDORE (MADHYA PRADESH)
                                                                               .....RESPONDENT
                           SHRI VIJAY KUMAR ASUDANI, ADVOCATE
                                 This appeal coming on for judgment this day, the court passed the

                           following:

                                                       JUDGMENT

1] Heard finally with consent of the parties.

2] This first appeal has been filed by the appellant under Section 96 of the Code of Civil Procedure 1908 (hereinafter to be referred to as "CPC") against the order dated 20.01.2021, passed by the VIII

Signature Not Verified Signed by: REENA SUDHIR DAS Signing time: 27-10-2023 17:19:09

Additional District Judge, Indore; whereby, the plaint filed by the appellant has been rejected under Order 7 Rule 11 of the CPC on the ground of territorial jurisdiction.

3] In brief, facts of the case are that the appellant/plaintiff herein filed a suit in the court at Indore for declaration, specific performance, recovery of money, rendition of accounts and consequential reliefs. In the aforesaid suit, the respondent/defendant, after service of notice, filed an application under Order 7 Rule 11 of the CPC for rejection of plaint raising as many as ten grounds including a separate objection regarding the maintainability on the ground of arbitration clause between the parties. The aforesaid application has been partly allowed by the learned judge of the trial Court on the ground of territorial jurisdiction, and it is held that the suit is not maintainable at Indore as the property in question is situated at Dewas.

3] Counsel for the appellant/plaintiff has submitted that the learned judge of the trial Court has erred in rejecting the suit, as even assuming for the sake of argument that the suit was to be filed at Dewas, in that case also, at the most the trial Court ought to have returned the plaint to the appellant/plaintiff so that it could be presented in the Court at Dewas which is also the mandate of Order 7 Rule 10 of the CPC.

4] Counsel for the appellant/plaintiff has further submitted that

Signature Not Verified Signed by: REENA SUDHIR DAS Signing time: 27-10-2023 17:19:09

otherwise also the suit is very much maintainable at Indore only, because the plaintiff/appellant and defendant/respondent were earlier the partners, and the partnership deed dated 3.6.2003, and subsequently three Memorandum of Understanding (MOUs) were entered into between the parties on 2.4.2005, 1.4.2011 and 3.4.2014 respectively at Indore, in respect of the development of the property at Dewas. It also submitted that otherwise also the registered office of the defendant/respondent is also at Indore. Thus, it is submitted that there was no reason to reject the plaint when the part of cause of action has clearly arisen at Indore only.

5] On the otherhand, counsel for the respondent/defendant has opposed the prayer, and it is submitted that no case for interference is made out. It is submitted that at the time of entering into the partnership, the registered office of the defendant was at Mumbai only. It is also submitted that the application under Order 7 Rule 11 of the CPC was filed raising ten grounds. However, the application has been decided entertaining only four grounds viz., regarding jurisdiction, whether the plaintiff/appellant was a workman or not, bar of limitation, and also payment of Court fees. Thus, it is submitted that the other grounds have not been decided by the trial Court including the objection raised by the respondent/defendant regarding the arbitration clause, regarding which the defendant has also filed its cross objection in this appeal.

6] In rebuttal, counsel for the appellant/plaintiff has submitted

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that the registered office of the defendant has now been shifted to Indore.

7] Heard. On due consideration of the submissions and on perusal of the documents filed on record, it is found that so far as the territorial jurisdiction to file the suit is concerned, apparently the agreement of partnership was entered into between the parties at Indore, and subsequent MOUs were also executed at Indore only regarding the property which was situated at Dewas, and in such circumstances, it cannot be said that no part of cause of action arose at Indore specially when the respondent/defendant himself is residing at Indore.

8] So far as the finding recorded by the trial Court regarding the fact that the plaintiff is not a workman is concerned, this Court is of the opinion that the aforesaid finding can only be given after leading evidence in this regard by the parties, and so far as the question of limitation as decided by the learned judge of the trial Court is concerned, the same requires no interference as the aforesaid objection can also be decided only after the issues are framed and the evidence is led. It has also been rightly held by the learned judge of the trial court that the requisite court fees has been paid by the plaintiff.

Signature Not Verified Signed by: REENA SUDHIR DAS Signing time: 27-10-2023 17:19:09

9] In view of the same, the impugned order dated 20.01.2021 is hereby set aside, and the matter is remanded back to the trial Court for its decision afresh.

10] It is made clear, that except that of the objections regarding the territorial jurisdiction and court fees, this Court has not reflected upon the merits of the case, and all the other issues/objections except shall remain open before the trial Court for the contesting parties which shall be decided by the trial court in accordance with law.

9] It is also found that in this appeal, the appellant has already paid the Court fees of Rs.1,50,000/-, and since the matter is remanded back to the trial Court it would be in the fitness of things to refund the amount of court fees paid by the appellant before this Court by resorting to Section 13 of the Court Fees Act, 1870, and it is directed that the appellant shall be entitled for refund of the court fees already paid by him in accordance with law. 10] Accordingly, the first appeal stands disposed of.

(SUBODH ABHYANKAR) JUDGE

das

Signature Not Verified Signed by: REENA SUDHIR DAS Signing time: 27-10-2023 17:19:09