Sandeep Polymers Pvt. Ltd. v. Bajaj Auto Ltd., (SC) BS130621
SUPREME COURT OF INDIA

Before:- Dr. Arijit Pasayat and Lokeshwar Singh Panta, JJ.

Civil Appeal No. 7749 of 2004. D/d. 20.7.2007.

Sandeep Polymers Pvt. Ltd. - Appellant

Versus

Bajaj Auto Ltd. and Ors. - Respondents

For the Appellant :- V.R. Reddy, Sr. Advocate with Dhruv Agarwal and Praveen Kumar, Advocates.

For the Respondent :- Joseph Vellapully, Sr. Advocate with Shailendra Swarun, Advocate.

A. Civil Procedure Code, Order 7 Rules 11 and 13 - Rejection of plaint - Order 7 Rule 11 C.P.C. does not justify rejection of any particular portion of plaint - Order 6 Rule 16 is relevant in this regard - Rejection of plaint does not preclude the plaintiff from presenting fresh plaint. 2006(1) RCR (Rent) 138 (SC) relied.

[Para 12]

B. Civil Procedure Code, Order 2, Rules 2 and 3 - Civil suit - Plaintiffs are duty bound to claim entire relief - Order 2 Rule 2 of Civil Procedure Code enjoins the plaintiff to include whole of the claim which plaintiff is entitled to make in respect of cause of action - If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of portion so omitted or relinquished. 2006(1) RCR (Rent) 138 (SC) relied.

[Paras 12 and 13]

Cases Referred :-

Hakam Singh v. M/s Gammon (India) Ltd., AIR 1971 Supreme Court 740.

Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., 2004(2) RCR (Civil) 808 : 2004(4) SCC 671.

New Moga Transport Company v. United India Insurance Co. Ltd., 2004(3) RCR (Civil) 141 : 2004(4) SCC 677.

Sopan Sukhdeo Sable v. Assistant Charity Commissioner, 2006(1) RCR (Rent) 138 : (2004(3) SCC 137).

Bruce v. Odhams Press Ltd. (1936) 1 KB 697.

Philipps v. Philipps, ((1878) 4 QBD 127)).

Samant N. Balkrishna v. George Fernandez (1969(3) SCC 238).

Om Prakash Srivastava v. Union of India, 2006(3) RCR (Criminal) 855 : 2006(3) RCR (Civil) 720 : 2006(2) Apex Criminal 680 : (2006(6) SCC 207).

Bloom Dekor Ltd. v. Subhash Himatlal Desai, (1994(6) SCC 322).

Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998(4) RCR (Criminal) 90 : (1998(6) SCC 514).

South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd., (1996(3) SCC 443).

Rajasthan High Court Advocates' Association v. Union of India, (2001(2) SCC 294).

Gurdit Singh v. Munsha Singh, (1977(1) SCC 791).

Navinchandra N. Majithia v. State of Maharashtra, 2000(4) RCR (Criminal) 30 : (2000(7) SCC 640).

Payana v. Pana Lana, (1914)41 IA 142.

Mohammad Khalil Khan v. Mahbub Ali Mian, (AIR 1949 Privy Council 78).

Moonshee Buzloor Fuheer v. Shumroonnissa Begum, (1967)11 Moo I 551 : 2 Bar 259 (P.C.).

Real v. Brown, (1889) 22 Q.B.O. 138 : 58 L.J. Q.B. 476.

Brunsoon v. Nurnphroy (18841 Q.B.O. 141. : 53 L.J.Q. B. 476.

Mst. Chand Kour v. Pratap Singh, (1887)15 IA 156.

JUDGMENT

Dr. Arijit Pasayat, J. - Challenge in this appeal is to the order passed by a learned Single Judge of the High Court of Bombay, Nagpur Bench, directing return of the plaint, as according to the High Court the Court at Nagpur had no jurisdiction to entertain a part of the claims made in the suit. The plaintiff was granted liberty to represent the plaint in the Court having jurisdiction at Pune. The trial Court was directed to follow the procedure under Order 7 Rule 10A of the Civil Procedure Code, 1908 (in short the 'CPC') for return of the plaint to the plaintiff.

2. Background facts in a nutshell are as follows :

The defendant Nos. 1, 3 and 4 filed an application under Section 9A read with Order 7 Rule 11 of Civil Procedure Code submitting therein that the suit was clearly abuse of process of law and was not maintainable. The registered office of defendants 1 and 2 was at Pune and that the defendant Nos. 3 and 4 are the residents of Pune, whereas the defendant No. 5 has its registered office at Tokyo (Japan). The lease agreements between defendant No. 1 and the plaintiff had been executed at Pune, and supplies were made by the plaintiff to defendant No. 1 at Pune/Aurangabad, i.e. outside the territorial jurisdiction of Civil Judge, Senior Division, Nagpur and, therefore, it had no territorial jurisdiction to entertain the suit and the suit deserves to be dismissed summarily. It was denied by the respondents-defendants that the plaintiff has set up its factory at Nagpur at the instance of defendant No. 1. It was further contended that the plaintiff has deliberately suppressed the fact that it has its registered office at Mumbai and neither of the parties to the suit resided at Nagpur. The respondents further averred in the said application that the parties by consent have restricted the jurisdiction to Pune Court only. The said term pertaining to jurisdiction is contained in all the purchase orders placed by defendant No. 1 with the plaintiff. Plaintiff had deliberately filed a part of the purchase order and suppressed that part of the purchase order from the Court which contained the clause regarding jurisdiction.

The non-applicant/plaintiff filed its reply to the said application reiterating the averments made in the plaint. It reiterated that it had made huge investments at Nagpur on the assurance made by the defendant No. 1. The plaintiff, further, submitted in its reply that the cause of action for suit has arisen substantially, if not wholly, within the territorial jurisdiction of the learned Court at Nagpur. Goods were supplied from Nagpur and the cost thereof is received at Nagpur and that the goods have also been delivered at Nagpur. Substantial part of the claims in the plaint was on account of damages etc. for breach of Memorandum of Understanding (in short 'MoU') and the breach of assurances given by the defendant No. 1. The plaintiff, therefore, submitted that if the substantial cause of action arises out of damages on other counts and if the small part of the claim arises out of purchase order, the claim cannot be separated and, therefore, it was in the interest of justice that the Court should entertain the present suit.

3. The learned trial Court, after considering the rival contentions raised on behalf of the parties, found that the suit was outcome of the damages caused to the Unit of the plaintiff because of the breach of the contract. He further observed that the letter of termination was received by the plaintiff at Nagpur. It is further observed in the order that the term about jurisdiction pointed out on behalf of the defendants was relating to the breach of contract under order of purchase and not relating to the damage caused to the plaintiff by termination of the entire contract which was admittedly for the life time. The learned trial Court, therefore, held that the cause of action to file present suit arises at Nagpur and, therefore, directed the suit to proceed according to law.

4. Questioning for quashing the order passed by Joint Civil Judge, Senior Division, Nagpur Civil Revision was filed before the High Court by the respondents. It was submitted that the substantial part of the claim arises out of four purchase orders which came to be placed by defendant No. 1 with the plaintiff. All the purchase orders ousted the jurisdiction of all Courts except the Court at Pune. Except these purchase orders there was no other written contract. Since the suit is mainly based on the cause of action arising out of said purchase orders which ousted the jurisdiction of Courts except the Court situated at Pune, though there may be ancillary cause of action the ouster clause in the purchase order governs the proceedings between the parties.

5. Reference was made to various decisions of this Court in Hakam Singh v. M/s Gammon (India) Ltd. ( AIR 1971 Supreme Court 740), Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., 2004(2) RCR (Civil) 808 : (2004(4) SCC 671) and New Moga Transport Company v. United India Insurance Co. Ltd. And Ors., 2004(3) RCR (Civil) 141 : (2004(4) SCC 677). The plaintiff-appellant before this Court referred to various Mou dated 6.11.1996 and submitted that the same related to the technical terms between the parties. As per the said terms the plaintiff was entitled to receive 7 moulds but it was given 4 moulds. There was no ouster clause in the said MoU and, therefore, suit for breach of terms would not be covered by the ouster clause.

6. Reference has also been made to various communications dated 9.10.1993, 25.5.1996, 30.11.1996 and 23.9.1997 to substantiate the stand that assurance was given by defendant No. 1 to the plaintiff that the plaintiff would be its life time supplier. Relying on the provisions of Order 2 Rule 2 of Civil Procedure Code it was submitted that the suit is required to include the whole of the claim which the plaintiff was entitled to make in respect of the cause of action. Therefore, it was necessary for it to join all causes of action and since only insignificant part of cause of action was governed by the purchase orders the suit filed at Nagpur will not be governed by the ouster clause.

7. The High Court referred to various purchase orders and conditions and averments in the plaint. With reference to the averments held that the claims were referable to the purchase orders. The averments in para 29 indicated that they were referable to MoU dated 6.11.1996. According to the High Court perusal of the purchase orders indicated that the said MoU was also a part of the purchase orders. With reference to Condition No. 20 of the purchase orders it was held that only the Pune Court had jurisdiction in all the matters arising out of the purchase orders. Accordingly, the High Court held that the suit is based on several causes of action and it was open to the plaintiff to file a suit for causes of action not related to purchase order at Nagpur and to file another suit arising out of cause of action related to the purchase orders at Pune.

8. Accordingly, the order was passed for return of the plaint.

9. In support of the appeal, with reference to the order of the trial Court it was submitted that in para 60 it was categorically held that the court at Nagpur had jurisdiction to try the suit. The High Court accepted that by operation of Order 2 Rule 2 Civil Procedure Code it was permissible to raise several causes of action and there was no ouster clause in that sense. The main relief is for damages and costs incurred. The purchase order related only to part of the relief claimed. Therefore, it was submitted that the trial Court's view should not have been interfered with.

10. In response, learned counsel for the respondents submitted that the High Court has noted that the purchase orders clearly excluded the jurisdiction and, therefore, the High Court's view is irreversible.

11. The relevant portion of the purchase orders which are identical reads as follows :

12. In Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors., 2006(1) RCR (Rent) 138 : (2004(3) SCC 137) it was inter alia held as follows :

13. In Om Prakash Srivastava v. Union of India and Anr., 2006(3) RCR (Criminal) 855 : 2006(3) RCR (Civil) 720 : 2006(2) Apex Criminal 680 : (2006(6) SCC 207) it was held as follows :

14. Learned counsel for the appellant submitted that a separate suit shall be filed in relation to purchase orders at Pune and necessary amendments to the plaint filed at Nagpur shall be made. It shall be open to the respondents-defendants to raise such objections and to take such stand as are available. In view of above, we dispose of the appeal with the following directions :

15. Appeal is disposed of with no order as to costs.

Appeal disposed.