w w w . L a w y e r S e r v i c e s . i n



Masyc Projects Pvt Ltd. v/s Nilachal Iron And Power Ltd.


Company & Directors' Information:- C AND C PROJECTS LIMITED [Active] CIN = U74999HR2007PLC036644

Company & Directors' Information:- NILACHAL IRON & POWER LIMITED [Active] CIN = U27100WB2002PLC094612

Company & Directors' Information:- Y K M PROJECTS PRIVATE LIMITED [Active] CIN = U40109TG2008PTC057263

Company & Directors' Information:- T G R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200KA2012PTC062702

Company & Directors' Information:- S G PROJECTS LIMITED [Active] CIN = U65999WB1990PLC049684

Company & Directors' Information:- B C C PROJECTS PVT LTD [Active] CIN = U74899DL2001PTC112102

Company & Directors' Information:- J K S PROJECTS LIMITED [Active] CIN = U45400WB2011PLC157565

Company & Directors' Information:- T & T PROJECTS LIMITED [Active] CIN = U45201AS2008PLC008641

Company & Directors' Information:- W AND W PROJECTS PRIVATE LIMITED [Active] CIN = U65910DL1989PTC036754

Company & Directors' Information:- E M C PROJECTS PVT LTD [Active] CIN = U29248WB1964PTC026261

Company & Directors' Information:- N T POWER PROJECTS ( INDIA ) PRIVATE LIMITED [Active] CIN = U40300TG2015PTC099992

Company & Directors' Information:- H AND V PROJECTS PRIVATE LIMITED [Active] CIN = U72400DL2011PTC220047

Company & Directors' Information:- M A PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2005PTC135093

Company & Directors' Information:- S. V. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70100AP1998PTC029024

Company & Directors' Information:- M V PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45202KA2008PTC045272

Company & Directors' Information:- J D IRON PRIVATE LIMITED [Active] CIN = U51420DL1996PTC079084

Company & Directors' Information:- S V S PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200AP2015PTC096787

Company & Directors' Information:- S P IRON PRIVATE LIMITED [Active] CIN = U27106DL2005PTC136441

Company & Directors' Information:- A T E PROJECTS PRIVATE LIMITED [Active] CIN = U74999DL1999PTC102246

Company & Directors' Information:- U W T PROJECTS LIMITED [Active] CIN = U45200AP2004PLC043198

Company & Directors' Information:- J J PROJECTS PVT LTD [Active] CIN = U24231WB1986PTC040246

Company & Directors' Information:- T & I PROJECTS LTD [Active] CIN = L29130WB1984PLC038232

Company & Directors' Information:- B 2 R PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2013PTC189971

Company & Directors' Information:- C M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC130580

Company & Directors' Information:- N G PROJECTS LIMITED [Active] CIN = U45201GJ2003PLC042152

Company & Directors' Information:- E AND C PROJECTS PRIVATE LIMITED [Active] CIN = U29150DL2002PTC115297

Company & Directors' Information:- MASYC PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC038957

Company & Directors' Information:- B. D. R. PROJECTS PRIVATE LIMITED [Active] CIN = U45202TG1998PTC028780

Company & Directors' Information:- V AND S PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL1996PTC079487

Company & Directors' Information:- V R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400AP2007PTC054901

Company & Directors' Information:- D C R PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2007PTC056307

Company & Directors' Information:- R. R. PROJECTS PVT LTD [Active] CIN = U45200TG1982PTC003711

Company & Directors' Information:- S H PROJECTS PRIVATE LIMITED [Active] CIN = U74996DL2006PTC149971

Company & Directors' Information:- S R PROJECTS INDIA PVT LTD [Active] CIN = U45207WB1981PTC033286

Company & Directors' Information:- L E PROJECTS PRIVATE LIMITED [Active] CIN = U45303WB2005PTC102555

Company & Directors' Information:- M. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC131902

Company & Directors' Information:- J V PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069037

Company & Directors' Information:- B N PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2009PTC058067

Company & Directors' Information:- J P PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2011PTC165990

Company & Directors' Information:- R K PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC043660

Company & Directors' Information:- A B PROJECTS PRIVATE LIMITED [Active] CIN = U45200MH2004PTC149404

Company & Directors' Information:- M K IRON PRIVATE LIMITED [Active] CIN = U27109CH1997PTC019501

Company & Directors' Information:- A K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG1996PTC023179

Company & Directors' Information:- S N M PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2010PTC040243

Company & Directors' Information:- J AND H PROJECTS PRIVATE LIMITED [Active] CIN = U45200GJ2013PTC074010

Company & Directors' Information:- N S PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2007PTC117882

Company & Directors' Information:- H S PROJECTS PRIVATE LIMITED [Active] CIN = U45208DL2006PTC153706

Company & Directors' Information:- N M PROJECTS PRIVATE LIMITED [Active] CIN = U29219DL2009PTC186728

Company & Directors' Information:- K. V. PROJECTS PRIVATE LIMITED [Active] CIN = U70102WB2012PTC188439

Company & Directors' Information:- B S C PROJECTS PRIVATE LIMITED [Active] CIN = U45200DL2011PTC227768

Company & Directors' Information:- J K PROJECTS PRIVATE LIMITED [Active] CIN = U45203GJ2001PTC039576

Company & Directors' Information:- F C C PROJECTS PRIVATE LIMITED [Active] CIN = U29248UP1982PTC005786

Company & Directors' Information:- S N PROJECTS LIMITED [Active] CIN = U85110KA1996PLC021040

Company & Directors' Information:- B. D. PROJECTS PRIVATE LIMITED [Amalgamated] CIN = U45400WB2010PTC147620

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U29100DL2010PTC209136

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2010PTC209136

Company & Directors' Information:- C B PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB1997PTC085237

Company & Directors' Information:- G G PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL1998PTC091501

Company & Directors' Information:- V M G PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45400WB2011PTC164117

Company & Directors' Information:- M. L. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151513

Company & Directors' Information:- M. K. N. PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2009PTC196755

Company & Directors' Information:- M B R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45300KA2009PTC049005

Company & Directors' Information:- G S P PROJECTS PRIVATE LIMITED [Active] CIN = U45201WB1992PTC057116

Company & Directors' Information:- K P S PROJECTS PRIVATE LIMITED [Active] CIN = U70102TG2005PTC046280

Company & Directors' Information:- E AND V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102TG2004PTC042622

Company & Directors' Information:- P A PROJECTS PRIVATE LIMITED [Active] CIN = U45208WB1997PTC083907

Company & Directors' Information:- N K D PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2008PTC128819

Company & Directors' Information:- A I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45203WB2000PTC091229

Company & Directors' Information:- P N PROJECTS PRIVATE LIMITED [Active] CIN = U45202DL2016PTC289494

Company & Directors' Information:- H S POWER PROJECTS PRIVATE LIMITED [Active] CIN = U31909DL2003PTC121326

Company & Directors' Information:- V AND M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2005PTC139731

Company & Directors' Information:- K K PROJECTS PVT LTD [Strike Off] CIN = U70200WB1995PTC073058

Company & Directors' Information:- S L PROJECTS PRIVATE LIMITED [Active] CIN = U45400AN2009PTC000109

Company & Directors' Information:- PROJECTS PVT LTD [Strike Off] CIN = U45201WB1951PTC019759

Company & Directors' Information:- V K M PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2011PTC045725

Company & Directors' Information:- H P IRON PRIVATE LIMITED [Active] CIN = U27100DL2009PTC191318

Company & Directors' Information:- K P PROJECTS PVT LTD [Active] CIN = U70101WB1996PTC077397

Company & Directors' Information:- C R PROJECTS PRIVATE LIMITED [Active] CIN = U45400PB2009PTC032572

Company & Directors' Information:- N P R PROJECTS INDIA PRIVATE LIMITED [Strike Off] CIN = U45400TN2012PTC086360

Company & Directors' Information:- G P N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U18101TZ2006PTC012749

Company & Directors' Information:- V K R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC046370

Company & Directors' Information:- I N C PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2005PTC101620

Company & Directors' Information:- J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC136510

Company & Directors' Information:- D J PROJECTS PRIVATE LIMITED [Active] CIN = U15201DL2005PTC134979

Company & Directors' Information:- S M POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40101KA2007PTC043140

Company & Directors' Information:- T AND M PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201KA2008PTC045199

Company & Directors' Information:- M R K POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40108TG2009PTC064610

Company & Directors' Information:- A C G PROJECTS PRIVATE LIMITED [Active] CIN = U45201UP1999PTC024162

Company & Directors' Information:- N E PROJECTS LTD [Strike Off] CIN = U16009AS1999PLC005873

Company & Directors' Information:- D R PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109612

Company & Directors' Information:- I J PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102KA2009PTC049320

Company & Directors' Information:- G C N PROJECTS PRIVATE LIMITED [Active] CIN = U45200KA2011PTC061371

Company & Directors' Information:- L N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2004PTC043064

Company & Directors' Information:- V B S POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40101HP2007PTC030760

Company & Directors' Information:- H B PROJECTS PVT LTD [Amalgamated] CIN = U45201WB1993PTC058846

Company & Directors' Information:- P. S. PROJECTS PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U70109WB2011PTC170655

Company & Directors' Information:- K M M POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40101UR2008PTC032741

Company & Directors' Information:- K A J POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40105UR2008PTC032742

Company & Directors' Information:- M. L. IRON PRIVATE LIMITED [Active] CIN = U27101DL2011PTC220421

Company & Directors' Information:- S P PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45400DL2010PTC203910

Company & Directors' Information:- J R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109HR2012PTC045119

Company & Directors' Information:- C N R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45201KA2007PTC041355

Company & Directors' Information:- P K IRON PVT LTD [Strike Off] CIN = U34300WB1981PTC034415

Company & Directors' Information:- POWER PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31101DD1995PTC001793

Company & Directors' Information:- A J PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45201MH2006PTC164622

Company & Directors' Information:- J M PROJECTS PRIVATE LIMITED [Active] CIN = U45200MP2007PTC019336

Company & Directors' Information:- L S S PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2013PTC059508

Company & Directors' Information:- A TO Z PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70101DL1995PTC069527

Company & Directors' Information:- G I T T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG2006PTC051193

Company & Directors' Information:- Z & I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45309TN2007PTC064972

Company & Directors' Information:- B. G. PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2012PTC231270

Company & Directors' Information:- V M IRON PRIVATE LIMITED [Strike Off] CIN = U51909PN2012PTC142963

Company & Directors' Information:- P S R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45400TG2015PTC101191

Company & Directors' Information:- E & E PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2015PTC075033

Company & Directors' Information:- N T POWER PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U40102TG2015PTC098830

Company & Directors' Information:- B B R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045165

Company & Directors' Information:- M V R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045166

Company & Directors' Information:- L V S PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200TG2010PTC068286

Company & Directors' Information:- R N V PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2011PTC044240

Company & Directors' Information:- R P POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74900UP2009PTC038185

Company & Directors' Information:- K L PROJECTS PRIVATE LIMITED [Active] CIN = U27104DL2003PTC119655

Company & Directors' Information:- K S M PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2009PTC194824

Company & Directors' Information:- 3 G PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC276736

Company & Directors' Information:- I S R PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2005PTC138210

Company & Directors' Information:- L V PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2014PTC272838

Company & Directors' Information:- M K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2002PTC117787

Company & Directors' Information:- B V M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC131352

Company & Directors' Information:- K. J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL2006PTC152898

Company & Directors' Information:- T & A POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40106DL2015PTC281726

Company & Directors' Information:- S C P POWER PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40109DL2005PTC133742

Company & Directors' Information:- POWER ON PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900AP2015PTC097760

Company & Directors' Information:- H V PROJECTS PVT LTD [Active] CIN = U45202HR1997PTC033617

Company & Directors' Information:- R Y POWER PROJECTS PRIVATE LIMITED [Active] CIN = U40104KA2012PTC066217

Company & Directors' Information:- V & V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109KA2005PTC037578

Company & Directors' Information:- C AND T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74140GJ2009PTC057480

Company & Directors' Information:- A AND B PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2007PTC051077

Company & Directors' Information:- A. R. PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40200DL2007PTC161559

    RFA. No. 313 of 2018

    Decided On, 24 October 2019

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE YOGESH KHANNA

    For the Appellant: Tarun Sharma, Akanksha Kapoor, Pradeep Singh, Advocates. For the Respondent: Gaurav Kejriwal, Gurpreet Hora, Advocates.



Judgment Text


1. This appeal is preferred by the appellant against the judgment and decree dated 19.12.2017 passed by the learned Additional District Judge-06/West District, Rohini Courts, Delhi (hereinafter referred as the learned ‘Trial Court’) in CS No. 11280/2016 whereby the suit filed by appellant for recovery of Rs. 20,37,506/- was dismissed, primarily, on grounds of territorial jurisdiction.

2. The brief facts which led to the filing of the suit, as are noted in impugned judgment are as under:

“1. xxxxxxxxx the plaintiff company is engaged in manufacture of material handling equipments like belt, conveyors, conveying and systems etc. The defendant placed a purchase order bearing No. NIPL/47/2003-2004 dated 2.7.2003 on the plaintiff for system design, detail design, manufacture and supply complete material handling system for a 350 TFD sponge iron plants to be located at Kandra near Jamshedpur in Jharkhand at the price of Rs. 1,37,33,000/-. It is contented that vide letter dated 25.8.2003, plaintiff conveyed to the defendant of change in the length in the conveyor as advised by the defendants consultant TGS (Tata Group). Therefore, the purchase order was increase to Rs. 1,42,30,303/-, thereafter several other orders have been placed by the defendant during the business. It is contented that on the regular insistence of the defendant, the plaintiff gave performance bank guarantee prior to erection commissioning for 10% (5% + 5%) of the basis supply of value amounting to Rs. 13,73,000/-. It is contented that defendant was now threatening to encash the bank guarantees on the basis of non execution of work in time which were against the terms for which the said performance bank guarantees were given and had there been any delay in execution of work (supply of equipment) on the part of the plaintiff in terms of purchase order dated 2.7.2003, defendant could have invoked clause No. 11.0 stipulated liquidated damages of said purchase order while releasing the final payment of Rs 13,73,000/- by cheque No. 049950 dated 22.11.2004 to the plaintiff but defendant did not do so because they were well aware that there was no delay on part of the plaintiff for execution of work stipulated in their purchase order dated 2.7.2003 whereas defendant themselves delayed the supplies due to various reason including non compliance of various terms by the defendant and also there was variation in design at the defendant in as much it has been changed and varied the length arid conveyors for which the defendant amended the purchase order only on 3.11.2004 vide their letter of even date whereas plaintiff has requested these documents since 25.08.2003 therefore, plaintiff had filed a suit bearing No. 244/2005 on 23.11.2005 alongwith the application under Order 39 Rules 1 and 2, CPC seeking ex parte stay order for invoking performance bank guarantees. Vide order dated 3.12.2005 the Sh D.C. Anand, learned ADJ was pleased to decline to grant injunction in favour of plaintiff resulting into appeal bearing, FAO No. 425/2005 preferred but the same was also dismiss by the Hon’ble High Court of Delhi and subsequently SLP was also dismissed as such interim stay was vacated and the defendant has encashed the said bank guarantees. The earlier suit vide dated 9.12.2006 has been dismissed for non prosecution.

2. It is contented that the said bank guarantees have been encashed on the ground that the work of erection has been delayed whereas work of period was given by a separate purchase order by the defendant on M/s Elcoma Engg Pvt Ltd which no doubt is a group of companies of plaintiff but is a separate entity in law. In any event, in the work of erection there was no condition of bank guarantee; to be given by the said M/s Elcoma Engg. Pvt India and as such on account of any such delay on the part of M/s Elcoma Engg. Pvt Ltd the aforesaid bank guarantees given by the plaintiff could not have been encashed. Furthermore, the total value of the work of Rs. 6,80,000/- and could not entitle the defendant to encash the bank guarantees of Rs. 13,73,000/-. Thus, judged from any angle, the defendant illegally and wrongly encashed the bank guarantee by taking advantage of the fact that the injunction was not granted to the plaintiff. It is contented that the plaintiff is also entitled for sum of Rs. 6,64,506/- as the defendant failed to provide C form despite notice raised from 10.4.2004- 12.12.2004 resulting into the invoice was increased 4% CST being charged against the C Form resulting into filing the present suit.”

3. The respondent/defendant filed written statement in the suit and took various objections besides Delhi Courts have no territorial jurisdiction to entertain the suit and the suit being filed without any cause of action. However, the respondent admitted in its written statement that conveyor systems supplied by the appellant herein, have been running successfully.

4. On 2.3.2017 the respondent was proceeded ex parte by the learned Trial Court.

5. Various issues, including of territorial jurisdiction was framed by learned Trial Court per order dated 12.12.2012. In support of its case, the appellant examined PW1 its authorised representative; witness from Bank of India as PW2; and two other witnesses. Despite the respondent being proceeded ex parte two legal issues were considered: (a) qua suit being barred under Order 2 Rule 2, CPC and (b) this Court has no territorial jurisdiction to entertain the suit.

6. The learned Trial Court came to a conclusion it has no territorial jurisdiction per clause No. 15 of the purchase order Ex.PW1/3 which say all the disputes pertaining to the transaction against the acceptance of offer of execution of the contract shall have the jurisdiction of Kolkata. The learned Trial Court on examining various judgments decided this issue against the appellant herein stating inter alia Kolkata Court has exclusive jurisdiction and the present suit is not maintainable in Delhi. Not only the learned Trial Court had decided the issue of territorial jurisdiction, but also held the suit is barred under Order 2 Rule 2, CPC as claim for recovery of the amount of bank guarantees wrongfully encashed was made available to the appellant during the pendency of the earlier suit for permanent injunction, filed for restraining the respondent from encashing such bank guarantee.

7. Qua applicability of Order 2 Rule 2, CPC, I may only say the cause of action for filing the suit for permanent injunction against encashment of bank guarantees was distinct than this suit for recovery filed by appellant herein after alleged wrongful encashment of such bank guarantees. Since the cause of action in both the suits were different and as this suit for recovery could have been filed only after wrongful encashment of such bank guarantees, hence, this suit could not have been said to be barred per Order 2 Rule 2, CPC.

8. The issue raised before me is when the learned Trial Court had come to a conclusion that it lack territorial jurisdiction, whether it was incumbent to decide other issues or the Court ought to have acted per Order 7 Rules 10/10A, CPC.

The provisions under Order 7 Rules 10 and 10(A), CPC are as under:

“Order 7 PLAINT

Rule 10. Return of plaint—(1) Subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

(2) Procedure on returning plaint—On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return:

(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under Sub-rule (1), the plaintiff may make an application to the Court—

(a) specifying the Court in which he proposes to present the plaint after its return,

(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and

(c) requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is made by the plaintiff under Sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,—

(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and

(b) give to the plaintiff and to the defendant notice of such date for appearance.

(4) Where the notice of the date for appearances is given under Sub-rule (3),—

(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise direct, and

(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

(5) Where the application made by the plaintiff under Sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.

In M/s. Alphabetics Private Limited v. Lohia Jute Press, 107 (2003) DLT 74=AIR 2004 Del. 374 wherein it was held:

“5. In terms of Order 14 Rule 2, CPC once a suit has been tried on all the issues, it is required of the Court to give findings on all such issues. However, in my opinion, the facts and circumstances of a case may warrant the Court to refrain itself from giving findings on all the issues as it may prejudice the trial of the case in the Court where it is filed after the plaint is returned. Once the Court comes to a finding that it had no jurisdiction to try the suit, in my opinion, it would have been an exercise in futility to decide other issues on the merits of the case. The findings on the other issues after the plaint was directed to be returned for presentation in appropriate Court would have prejudiced one of the parties and the Trial Court has rightly not given findings on other issues framed by it. I am, therefore, not in agreement with learned Counsel for the appellant that the impugned judgment is bad only because the findings on other issues have not been given by the learned Trial Court.

8. Learned Counsel for the appellant states that her oral request may be considered by this Court as request/application under Order 7 Rule 10A, CPC. Counsel for the respondent has agreed that the respondent would not insist upon a notice being served upon them by the Bombay Court and the respondents would appear in the Court in Bombay pursuant to the directions given by this Court. Learned Counsel for the appellant is, however, not aware as to in which Court in Bombay the plaint is to be presented after it is returned by the Court in Delhi. She requests for a short adjournment to inform the Court as to in which Court the plaintiff intends to present the plaint after it is returned by the Court in Delhi. At request, adjourned to 19th August, 2003.”

9. Thus, the learned Trial Court, if had come to a conclusion it had no territorial jurisdiction to try and decide the suit, then it was not required to decide other issues, including that under Order 2 Rule 2, CPC. The could have rather acted under Order 7 Rules 10 and 10(A), CPC, per M/s. Alphabetics Private Limited (supra). Appeal being a continuation of the suit, hence an oral prayer is made by the learned Counsel for appellant under Order 7 Rules 10 and 10(A), CPC for return of plaint along with documents/evidence etc to be filed before the appropriate Court.

10. Another issue now raised is if return of plaint would lead to a de novo trial? The answer is in M/s Excel Careers and Another v. Frankfinn Aviation Services Private Limited, SLP (C) No. 16893/2018 decided on 13.9.2013 wherein the Supreme Court noted:

“9. xxxxx The relevant observations of this Court in Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502 are as follows:

“5. Normally, when the plaint is directed to be returned for presentation to the proper Court perhaps it has to start from the beginning but in this case, since the evidence was already adduced by the parties, the matter was tried accordingly. The High Court had directed to proceed from that state at which the suit stood transferred. We find no illegality in the order passed by the High Court warranting interference.

12. In our view, this will not make any difference in so far as the powers conferred on Court under Order 7 Rules 10 and 10A of CPC are concerned. While Sub-rule (1) of Rule 10 of Order 7 envisages that a plaint can be returned at any stage of the suit to be presented to the Court in which the suit should have been instituted, the explanation thereto provides that the power of return of plaint can be exercised even by an Appellate Court or a revisional Court after setting aside the decree passed in the Court. Order 7 Rule 10 A provides that where in any suit, after the defendant has appeared, the Court is of the opinion that the plaint should be returned, the plaintiff may make an application specifying the Court in which he proposes to present the plaint after its return, pray that a date may be fixed for appearance of the party in the said Court and request that notice of the date fixed be given to the plaintiff as well as to the defendant. The Court can thereafter fix a date for appearance and the new Court need not summon the defendant again if such notice had been given. In Joginder Tuli case (supra), the Court directed that the evidence already recorded be taken into consideration whereas in Modem Construction case (supra) a different view was taken.

13. The Courts in India are burdened with a lot of litigation. We see no justifiable reason why the proceedings which may have taken place in a Court even if it has no jurisdiction, cannot be transferred to the new Court having jurisdiction. Unless a party can prove that it has been actually prejudiced by some proceedings before the Court not having jurisdiction, it would not be in the larger interest to start the proceedings de novo. We may refer to certain provisions of the CPC in this regard. Section 21 of the CPC provides that no objection as to the territorial or pecuniary jurisdiction shall be allowed to be raised in an appellate or revisional Court unless such objection was taken in the Court of first instance or at the earliest possible opportunity and, in any event, before the framing of issues. The further requirement is that there should be consequent failure of justice. It has repeatedly been held that the objections with regard to the pecuniary or territorial jurisdiction are technical objections and unless raised at the earliest possible opportunity, cannot be entertained in appeal or revision for the first time (Seth Hiralal Patni v. Sri Kali Nath, AIR 1962 SC 199, R.S.D.V. Finance Co. Pvt. Ltd. v. Vallabh Glass Works Ltd., AIR 1993 SC 2094).

17. In our view, the same principles which govern Section 21 and Order 14, CPC should apply to Order 7 Rules 10 and 10A, CPC also and the time of the Court, the parties and the witnesses should not be wasted. When the Court orders a return of the plaint, we prima facie feel that the Court exercising its inherent jurisdiction should return the plaint, which is the property of the plaintiff, to the plaintiff but shou

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ld also transfer the other material on record to the Court to which the plaintiff applies for transfer in terms of Order 7 Rule 10A. This would avoid duplicity of proceedings, evidence and contradictions in pleadings and evidence, if two sets of pleadings and evidence are allowed in the same set of proceedings. In the case in hand, the case was fixed for rebuttal evidence, if any, and arguments. Pleadings and evidence are over. Why should the clock be turned back by 6 years, which it took to reach this stage?” 11. Thus in the circumstances, the appeal stands allowed and the impugned judgment and decree dated 19.12.2017 is set aside. Per Order 7 Rules 10 and 10(A), CPC, the plaint is ordered to be returned by the learned Trial Court to appellant to be presented to the Court in which the suit should have been instituted, alongwith documents/evidence etc. Admittedly, the respondent was proceeded ex parte before the learned trail Court. It is the submission of the learned Counsel for the respondent an opportunity be afforded to the respondent to challenge such ex parte order, since the respondent company has now changed its management. Needless to say the respondent in these peculiar circumstances shall be at liberty to move an application seeking permission to participate in the proceedings, as per law, before the concerned Court. 12. The parties to appear before the Registrar, Original Side, High Court, Kolkata, West Bengal on 15.12.2019 at 10.00 a.m. for placing of the suit before the Court of competent jurisdiction. 13. Copy of this order be communicated to the Registrar, Original Side, High Court of Judicature, Kolkata, West Bengal. 14. No order as to costs. 15. Order dasti. Appeal allowed.
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