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A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem on 13 March, 1989
Section 28 in The Indian Contract Act, 1872
Sanwarmal Kejriwal vs Vishwa Cooperative Housing ... on 8 March, 1990
The Companies Act, 1956

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Delhi District Court
Suit No. 710/08/03 - M/S Dolphin ... vs . M/S Pawan Kumar & Co. & Ors. on 9 March, 2010
Author: Sh. Harish Dudani
                                          1
 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.



     IN THE COURT OF SHRI HARISH DUDANI,
ADDITIONAL DISTRICT JUDGE-15 (CENTRAL) : DELHI


Suit No.710/08/03


M/s Dolphin International Ltd.
21, Commercial Complex,
Gulmohar Park Extension,
New Delhi - 110 049                                          ..........Plaintiff

                     Versus

1.    M/s Pawan Kumar & Company
      Sela Rice Miller,
      Border Road, Ferozpur City,
      Punjab (India)

2.    Pawan Kumar
      Sela Rice Miller,
      Border Road, Firozpur City,
      Punjab (India)                                    ..........Defendants


                     Date of Institution of Suit : 27.03.2003
                     Date of Decision            : 09.03.2010

JUDGEMENT

1. This is a suit for recovery of a sum of 3,31,068/- (Rupees three lacs thirty one thousand sixty eight only) alongwith interest @ 12% p.a. since filing of the suit till recovery of the suit amount alongwith cost of the suit filed by the plaintiff.

2. The plaintiff has filed the above noted suit stating therein that the plaintiff is a limited company duly registered under the provisions of the Companies Act, 1956 and Shri J. P. Kukreja is authorised vide resolution dated 18.03.2003 to file the present suit on behalf 2 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

of the plaintiff company and that Shri J. P. Kukreja is well conversant with the facts of the case and is competent to file the present suit and verify the facts on behalf of the plaintiff company.

3. It is stated in the plaint that the defendant no. 1 is a partnership firm of which defendant no. 2 is a partner and is engaged in the business of rice mill, sale/purchase of rice etc. The plaintiff company entered into an agreement with defendant no. 1 through defendant no. 2 on 19.08.2002 to avail facilities for undertaking rice grading and allied activities on job work basis. As per clause I of the said agreement, plaintiff delivered 500 M.T. of Parboiled Sela Rice from 21.08.2002 to 31.08.2002 to the defendant for processing, as per packing details given hereunder :-

        No. of Jute bags     App. Gross Weight             Per net weight
             Nos.              Per Bag Kgs.                Delivered Quintals
         3660                       75                     2647.449
         4850                       50                     2352.551
         ---------                                         --------------
Total    8510                                              5000.00
         ----------                                        --------------



4. It is further stated in the plaint that as per the conditions of clause 1 of the agreement, plaintiff was to take finished goods i.e. Goods for export, goods not suitable for export packed in jute bags and unused empty bags loaded in trucks/other public carriers and from time to time, plaintiff has taken delivery of the processed rice from the defendant and a balance of 647.25 Quintal of rice was lying with the defendant. As there were certain disputes with regard to the quality of services/facilities provided by the defendant, a meeting was held between defendant no. 2 and the 3 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

representative of the plaintiff in Delhi office of the plaintiff and it was further agreed by both the parties that the defendant will purchase the balance quantity of the rice lying with the defendant @ Rs.465/- (Rupees four hundred sixty five only) per quintal and accordingly the plaintiff sold the said quantity of rice i.e. 647.25 quintal to the defendant vide their bill no. D1/DS/2K2-44 dated 16.10.2002 amounting to Rs.3,00,971/- (Rupees three lacs nine hundred seventy one only). It is stated that according to the said bill dated 16.10.2002, the payment was to be sent by the defendant to the plaintiff on the same day by D.D./Cheque payable in Delhi but it was not made by the defendant as agreed. Thereafter, the plaintiff contacted the defendant on a number of times, however, except bare promises, no payment came till date. It is further stated in the plaint that on 06.12.2002, the plaintiff issued a legal notice interalia calling upon the defendant to make payment of the outstanding amount alongwith interest but the notice came back with the remarks "refused". It is stated that in view of the above, the plaintiff is entitled to receive from the defendant the bill amount of Rs.3,00,971/- (Rupees three lacs nine hundred seventy one only) alongwith the agreed rate of interest of 24% per annum from the bill date till date which works out to Rs.30,097/- (Rupees thirty thousand ninety seven only) and, therefore, in total the plaintiff is entitled to recover a sum of Rs.3,31,068/- from the defendant. It is further stated in the plaint that this Court has jurisdiction to decide the present matter as the plaintiff has its head office at Delhi where the subject sale was agreed upon and the bill was raised and the bill specifically mentions 4 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

as agreed by the defendant, about the exclusive jurisdiction of the Delhi Court in case of any dispute and the payment was to be made in Delhi subject to Delhi Court jurisdiction.

5. The defendants have filed written statement and have contested the suit. In the written statement, the defendants have taken objections that the suit of the plaintiff is liable to be dismissed as the plaintiff has concealed the material facts from the Court and has not come with clean hands, and is not entitled to any relief. It is also pleaded that the plaint is liable to be dismissed under Order 7 rule 11 CPC as the mandatory provisions has not been complied with. The Court at Delhi does not have the jurisdiction to try and decide the suit as no transaction ever took place at Delhi. The alleged supply of rice was taken from the office of FCI, Ferozpur, the receipt of the rice took place at Ferozpur and its delivery was also given at Ferozpur. The alleged agreement dated 19.08.2002 was executed, attested and presented in the office of FCI at Ferozpur and even the alleged payments were made by the plaintiff at Ferozpur and no representative of the defendants ever visited Delhi hence, the suit is liable to be dismissed. The suit is liable to be dismissed on the ground of concealment and estoppel. In fact, everything was settled on 01.10.2002 and ultimately as a result of full and final settlement a payment of Rs.34,902/- (Rupees thirty four thousand nine hundred two only) was made by the plaintiff in favour of the defendant vide DD no.850134 dated 04.10.2002 drawn on Canara Bank, East of Kailash, New Delhi and the said DD was sent to the 5 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

defendants by the plaintiff with a forwarding letter duly signed by Shri K. K. Dua, Finance Manager/Authorised Signatory of the plaintiff and it was clearly mentioned by the defendants that it was towards the full and final payment of the bills. Similarly, the plaintiff sent a statement of account duly signed by the Finance Manager regarding the bills of the plaintiff alongwith bills dated 28.09.2002 for a sum of Rs.2,34,000/-. The statement of account and forwarding letter dated 28.09.2002 clearly shows about the transaction and delivery at Ferozpur and its receipt of sale in Punjab for Rs.2,34,000/- and no liability of the defendant existed therein. Even as per the statement of account maintained by the plaintiff with respect to the transaction of the defendants for the period w.e.f. 01.04.2002 to 25.09.2002, everything was settled and the account was closed. It is pleaded that the suit is liable to be dismissed having been filed without cause of action even as per accounts maintained by the plaintiff. It is denied that a balance of 647.25 quintal of rice of the plaintiff was lying with the defendants or any dispute with regard to the quality of the services ever took place. It is also denied that any agreement took place between the parties at Delhi whereby defendants agreed to purchase the balance quantity of rice i.e. 647.25 quintal as alleged. It is stated that suit is liable to be dismissed.

6. The plaintiff has filed replication to the written statement of the defendants. In the replication, the plaintiff has reiterated the contents of the plaint and has controverted the allegations of the defendants as stated in the written 6 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

statement. It is denied that the plaintiff has concealed any material facts from the Court. It is further denied that no transaction under the agreement took place in Delhi and that the agreement was executed in Ferozpur, Punjab. It is also denied that the payment was made at Ferozpur, Punjab and that no representative of the defendant visited the Delhi office of the plaintiff. It is denied that everything was settled on 01.10.2002 and ultimately as a result of that full and final settlement the payment of Rs.34,902/- was made.

7. From the pleadings of the parties, following issues were framed by my ld. Predecessor on 11.03.2004 :

1. Whether the Court at Delhi has no territorial jurisdiction to entertain any try this suit, as alleged in Para No. 2 of the preliminary objection in the Written Statement? OPD.

2. Whether the plaintiff is entitled to the decree as prayed for? OPP.

3. If above Issue No. 2 is proved, in that event whether the plaintiff shall be entitled to interest? If so, at what rate, amount and for what period? OPP.

4. Relief.

8. In order to prove its case, the plaintiff examined Shri K. K.

Dua, Director of the plaintiff as PW-1.

9. Examination-in-chief of DW-1 Shri Pawan Kumar was recorded on 13.07.2007 and thereafter he did not appear for cross-examination and vide order dated 08.07.2009 DE was closed. As DW-1 did not appear for cross-examination, hence, his testimony is of no consequence.

7

Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

10. I have heard the ld. Counsel for parties and carefully perused record. My findings on the specific issues are as under :-

11. Issue No. 1

In the WS, the defendants have taken the objection that the Court at Delhi does not have the jurisdiction to try and decide the suit as no transaction ever took place at Delhi. It is stated in para 3 of PO of WS that alleged supply of rice was taken from the FCI, Ferozpur and the said rice was received at Ferozpur and its delivery was also given at Ferozpur and alleged agreement dated 19.08.2002 was executed, attested and presented in the office of FCI, Firozpur and alleged payments were also made by the plaintiff at Ferozpur and no representative of defendants ever visited Delhi, hence, the Court at Delhi does not have the jurisdiction.

12. As per case of plaintiff, the parties entered into an agreement on 19.08.2002 to avail facilities for rice grading and allied activities on job work basis and as per the said agreement, the plaintiff delivered 500 M.T. of Parboiled Sela Rice to defendants for processing from 21.08.2002 to 31.08.2002 and from time to time, the plaintiff took delivery of the processed rice from the defendants and a balance of 647.25 quintal of rice was lying with the defendants. In order to bring the suit within the jurisdiction of Delhi Courts, the plaintiff has stated in para 6 of the plaint that as there were certain disputes with regard to quality of services/facilities 8 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

provided by the defendants, a meeting was held between defendant no. 2 and representative of the plaintiff in Delhi office of the plaintiff and it was further agreed by both the parties that defendant will purchase the balance quantity of rice lying with the defendant @ Rs.465/- per qunital and accordingly the plaintiff sold the said rice i.e. 647.25 quintal vide bill dated 16.10.2002 amounting to Rs.3,00,971/- (Rupees three lacs nine hundred seventy one only). In para 10 of the plaint, the plaintiff has stated that this Court has jurisdiction to decide the present matter as the plaintiff has its head office at Delhi where the subject sale was agreed upon and the bill was raised and the bill specifically mentioned as agreed by the defendants about the exclusive jurisdiction of Delhi Courts in case of any dispute and the payment was to be made in Delhi. The plaintiff has relied on decision in Sanwarmal Kejriwal vs. Vishwa Cooperative Housing Society Ltd. And Others, (1990) 2 Supreme Court Cases 288 but perusal of the same shows that same is not applicable to the facts of the present case. In the said case, the question involved was not regarding territorial jurisdiction of the Court.

13. The defendant has contended that agreement dated 19.08.2002 which has been referred by the plaintiff in para 2 of the plaint was executed in Ferozpur (Punjab) and the same was signed in Punjab and it was got attested in Punjab and the same was to be submitted in the office of FCI at Ferozpur and all transactions between the parties in terms of the said agreement took place in Punjab, hence, Courts in 9 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

Delhi have no jurisdiction.

14. In order to prove its case, the plaintiff examined Shri K. K.

Dua, Director of the plaintiff as PW-1 who adduced evidence by way of affidavit Ex.PW1/A. The photocopy of the agreement dated 19.08.2002 has been filed by the plaintiff on record and the same is Ex.PW1/DX. It is to be noted that both the parties admit execution of agreement dated 19.08.2002, the photocopy of which is Ex.PW1/DX. However, the contention of ld. Counsel for defendant is that the original of the said agreement dated 19.08.2002 has not been filed by the plaintiff on record as the back page of the same would reveal that the stamp paper on which it has been executed was purchased in Ferozpur and the said agreement was signed by the parties in Ferozpur (Punjab) and the same has been witnessed by Shri Mohit Chopra who is also a resident of Ferozpur city (Punjab) and the same was got attested from Notary in Ferozpur (Punjab). PW-1 Shri K. K. Dua in his cross-examination conducted on 12.10.2006 stated that he does not know that who purchased the stamp paper of document Ex.PW1/DX and from where the same was purchased. However, thereafter he voluntarily stated that it was got purchased from his office through some peon. Further, PW-1 admitted in cross- examination that Ex.PW1/DX has been filed on record by the plaintiff. PW-1 further admitted in cross-examination that it is correct that witness to the said document signed at Ferozpur and the said document Ex.PW1/DX was notarised at Ferozpur. PW-1 denied the suggestion of defendants in the 10 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

cross-examination to the effect that the plaintiff has intentionally and deliberately not filed copy of the back page of Ex.PW1/DX as the stamp on the said document is in Punjabi language showing that the same was purchased from Ferozpur on 19.08.2002. PW-1 admitted in his cross- examination conducted on 19.03.2007 that it is correct that Ex.PW1/DY is the photocopy of agreement dated 19.08.2002 and the back page of the same is in Punjabi. However, PW- 1 further stated in cross-examination that he does not know Punjabi language and he cannot say that if it is written on the back page of the stamp paper that stamp paper was purchased from Ferozpur. PW-1 also admitted in cross- examination that at point A on Ex.PW1/DX, there is a blank space to show as to where it was executed. Point A is the place where it was to be mentioned at which place this agreement dated 19.08.2002 was executed. However, in Ex.PW1/DX, the same is left blank and the place where it was executed has not been mentioned.

15. The contention of ld. Counsel for defendant is that the plaintiff has deliberately not filed original of agreement dated 19.08.2002 as the same would have revealed that it was executed at Ferozpur (Punjab) and PW-1 has admitted in cross-examination that the said document has been witnessed by Shri Mohit Chopra who is resident of Ferozpur City (Punjab) and the same has been attested at Ferozpur (Punjab) and the stamp papers on which the said agreement dated 19.08.2002 was prepared were purchased from Ferozpur. In the circumstances, it is not possible that the 11 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

same would have been signed by the plaintiff at Delhi and later on signed by the other party at Punjab and it was attested at Punjab. It is to be noted that PW-1 admitted in the cross-examination that Ex.PW1/DY is the copy of agreement dated 19.08.2002 and the back page of the same is in Punjabi language. Thereafter, PW-1 also admitted in the cross-examination that witness of the said agreement signed at Ferozpur and the said document was notarised at Ferozpur (Punjab). PW-1 admitted that original of Ex.PW1/DX and Ex.PW1/DY is lying with the office of FCI, Ferozpur (Punjab). In the circumstances, when the defendant had alleged that the plaintiff is deliberately not producing the original of agreement dated 19.08.2002 as the same would prove that it was executed at Ferozpur (Punjab), it was necessary for the plaintiff to have summoned the original of agreement dated 19.08.2002 in order to prove that it was not executed at Ferozpur (Punjab), as alleged by the defendants. In the circumstances, as the plaintiff has failed to summon the original of agreement dated 19.08.2002, an adverse inference has to be drawn against the plaintiff to the effect that if original of the said document was produced in the Court then the same would have proved that the said agreement dated 19.08.2002 was executed in Ferozpur (Punjab).

16. As per agreement dated 19.08.2002, copies of which are Ex.PW1/DX and Ex.PW1/DY, the plaintiff and defendants entered into an agreement whereby it was agreed between the parties that the defendant has facilities for undertaking 12 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

rice grading and allied activities at Ferozpur City (Punjab) and is ready to provide its services to the plaintiff on job work basis and the plaintiff is dealing in the business of export of rice outside the country and has purchased 2000 M.T. raw non basmati from FCI to be cleaned, order and repacked for export. Vide agreement dated 19.08.2002, the parties agreed that the plaintiff shall send the packing material and raw material i.e. rice purchased from FCI packed in jute bags in trucks and other public carriers to the premises of defendant and shall take finished goods from the premises of the defendant and the defendant shall carry out job work on 500 M.T. rice as provided by the plaintiff and the defendant was to be paid for the job work @ Rs.30/- per quintal handled in the mill.

17. The contention of ld. Counsel for the defendant is that all transactions between the parties relating to the execution of agreement took place in Punjab and this Court has no territorial jurisdiction. Section 20 of the Code of Civil Procedure reads as under:-

20.Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a)the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b)any of the defendants, where there are more than one, at the time of the commencement of the suit, 13 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendant who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c)the cause of action, wholly or in part, arises.

18. As per the agreement dated 19.08.2002 executed between the parties, the defendants are based at Punjab and the job work was to be executed by the defendants at Punjab and for doing the said job work, the rice was to be supplied to the defendants by the plaintiff at the mill of defendants in Punjab. Clause 1 of the agreement dated 19.08.2002 Ex.PW1/DX provides that the plaintiff shall send packing material and raw material stock i.e. Rice purchased from FCI to the premises of defendants and the plaintiff shall take the finished goods from the premises of the defendants. Hence, the delivery of rice for the processing for the purpose of doing the job work was to be supplied by the plaintiff at Ferozpur (Punjab) and the delivery was also to be taken from Ferozpur (Punjab). Clause 5 of the agreement dated 19.08.2002 Ex.PW1/DX provides that the unloading and loading expenses, labour charges, electricity and water charges, repair and maintenance of plant and machinery and other incidental expenses incurred and consumables used to carry out the job work shall be incurred and borne by the defendants. PW-1 also admitted in the cross-examination that in all the documents i.e. Ex.PW1/4(a) to Ex.PW1/4(d), it is mentioned that the goods were purchased from FCI, Punjab and sold in Punjab. PW-1 also admitted in the cross-examination that 14 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

letter dated 04.10.2002 Ex.PW1/DZ2 was sent by the plaintiff to the defendant. As per the said letter Ex.PW1/DZ2, plaintiff had sent demand draft no. 850134 dated 04.10.2002 drawn on Canara Bank for Rs.34,902/- (Rupees thirty four thousand nine hundred two only) payable at Ferozpur (Punjab) in favour of defendant towards full and final payment of bills of defendants. The aforesaid letter dated 04.10.2002 of plaintiff shows that the payments were being made to defendants at Punjab and that is the reason, the demand drafts were being drawn in favour of defendants which were payable at Ferozpur (Punjab).

19. Ld. counsel for the plaintiff has relied upon decision in A. B.

C. Laminart Pvt. Ltd. And Another vs. A. P. Agencies, Salem, (1989) 2 Supreme Court Cases 163 wherein it was held :

"11. The jurisdiction of the court in matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors.
12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.................

15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the 15 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made...................................................The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else."

20. It has been discussed above that as per the said agreement dated 19.08.2002 executed between the parties, the defendants were to perform job work in respect of the rice supplied by the plaintiff at Ferozpur (Punjab) and for that purpose raw rice was to be supplied to the defendant at its premises in Ferozpur (Punjab) by the plaintiff and the finished goods were to be taken by the plaintiff from the premises of the defendant at Punjab and the agreement dated 19.08.2002 was executed in Firozpur (Punjab).

21. In A. B. C. Laminart Pvt. Ltd. And Another vs. A. P.

Agencies (supra), it was also held that part of cause of action arises where money is expressly or impliedly payable under a contract. It has also been held in the aforesaid discussion that the payments were to be made by the plaintiff to the defendants in Ferozpur (Punjab). Hence, in view of the aforesaid decision of Hon'ble Supreme Court in A. B. C. Laminart Pvt. Ltd. And Another vs. A. P. Agencies (supra), the part of cause of action regarding 16 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

payment of money also took place in Ferozpur (Punjab).

22. The contention of ld. Counsel for the plaintiff is that the plaintiff was sending bills/invoices to the defendants and in the said invoices it was mentioned that the dispute between the parties shall be subject to jurisdiction of Delhi Courts only and on that account defendant is precluded from challenging the jurisdiction of this Court in Delhi. The invoices on which the plaintiff is relying are Ex.PW1/4(a) to Ex.PW1/4(d). However, the contention of ld. Counsel for defendant is that the said invoices were not signed by the defendant and the defendant has never consented to confer jurisdiction in the Courts at Delhi and, moreover, since entire cause of action has accrued at Ferozpur (Punjab) only, hence, there is no question of conferring jurisdiction on the Courts at Delhi by consent of the parties. Ld. Counsel for the defendant has further contended that the defendant had also sent bills to the plaintiff and in the said bills, it is specifically mentioned that all disputes subject to Ferozpur jurisdiction and the plaintiff has filed the said bills on record i.e. Ex.PW1/3(a) and Ex.PW1/3(b). In A. B. C. Laminart Pvt. Ltd. And Another vs. A. P. Agencies (supra), reference was made to the decision in Hakem Singh vs. M/s Gammon (India) Ltd., (1971) 1 Supreme Court Cases 286 wherein in was held that it was not open to the parties to agreement to confer by their agreement jurisdiction on a court which did not possess it under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try the suit or proceeding an agreement between the parties that the 17 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

dispute between them shall be tried in one of such courts was not contrary to public policy and such an agreement did not contravene Section 28 of the Contract Act.

23. The contention of the plaintiff is that in their invoices Ex.PW1/4(a) to Ex.PW1/4(d), they have clearly mentioned that the Courts in Delhi shall have the exclusive jurisdiction to try the dispute between the parties. It is to be noted that invoices Ex.PW1/4(a) to Ex.PW1/4(d) on which reliance has been placed by the plaintiff, nowhere mention that the said terms have been accepted by the defendants. PW-1 also admitted in his cross-examination conducted on 12.10.2006 that there are no signatures of defendant at any place on the documents filed by the plaintiff. The raising of invoices Ex.PW1/4(a) to Ex.PW1/4(d) is a unilateral act of the plaintiff as nowhere the defendants have consented to the clause on the Ex.PW1/4(a) to Ex.PW1/4(d) that the Courts in Delhi shall have the exclusive jurisdiction. Moreover, the contention of the plaintiff that in view of the clause printed on invoices Ex.PW1/4(a) to Ex.PW1/4(d) that the Courts in Delhi would only have the jurisdiction has also no force because the parties can confer jurisdiction on Courts at one place exclusively only if the cause of action arises in jurisdiction of different Courts and the parties decide that the Courts at one particular place shall have the jurisdiction only to try the dispute. But in the present case, the plaintiff has failed to prove that any part of cause of action has arisen in Delhi. Hence, the parties by their consent cannot confer jurisdiction on a Court which did not have the jurisdiction to 18 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

try the suit in view of decision in A. B. C. Laminart Pvt. Ltd. And Another vs. A. P. Agencies (supra).

24. In order to bring the suit within the jurisdiction of Delhi, the plaintiff has mentioned in para 6 of the plaint that from time to time, the plaintiff has taken delivery of the processed rice from the defendants and a balance of 647.25 quintal of rice was lying with the defendants and as there were certain disputes about quality of services/facilities provided by the defendant, a meeting was held between the defendant no. 2 and representative of the plaintiff in the Delhi office of the plaintiff and it was further agreed by both the parties that the defendant will purchase the balance quantity of rice lying with the defendants. Before filing the suit, the plaintiff had issued notice to the defendants through their counsel Shri P. I. Jose, Advocate which is Ex.PW1/5 and in the said notice Ex.PW1/5 which was issued on 06.12.2002 the plaintiff has nowhere stated that any meeting had taken place between the defendant no. 2 and representative of the plaintiff in Delhi. However, this plea has been taken by the plaintiff for the first time by filing the suit. It is to be noted that the plaintiff has based his case on the basis of agreement dated 19.08.2002 Ex.PW1/DX which was executed between parties and as per which the the defendants were to perform job work for the plaintiff at Ferozpur (Punjab). However, in order to confer jurisdiction on Delhi Courts, the plaintiff has tried to carve out another dispute in respect of the work which was performed in execution of agreement dated 19.08.2002 by stating that the quality of services/facilities 19 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

provided by the defendants were deficient, on account of which the plaintiff did not take delivery of 647.25 quintal of rice and in respect of the same a meeting was also held in Delhi whereby it was agreed that the defendant shall purchase the said rice @ Rs.465/- per quintal. However, the defendant has denied having entered into any such agreement at Delhi. It is to be noted that the dispute which the plaintiff is trying to carve out in respect of quality of services/facilities provided by the defendants is not an independent dispute but it is flowing from the work which was executed in pursuance of agreement dated 19.08.2002 as the same is based on the allegation of deficiency in quality of services/facilities provided by the defendants at Ferozpur (Punjab). The plea of the defendants is that all the disputes between the parties were finally settled and the plaintiff sent letter dated 04.10.2002 alongwith one DD for a sum of Rs.34,902/- towards the full and final payment of the bills. PW-1 also admitted in the cross-examination that letter dated 04.10.2002 Ex.PW1/DZ2 was sent to defendants by the plaintiff alongwith DD for a sum of Rs.34,902/- payable at Ferozpur.

25. The dispute as raised by the plaintiff that there was deficiency in the quality of services/facilities provided by the defendant on which account the plaintiff did not take delivery of 647.25 quintal of rice lying with the defendants at Ferozpur (Punjab) is a dispute arising out of the agreement dated 19.08.2002 which was executed at Ferozpur (Punjab) and no part of cause of action in respect of the said 20 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

agreement has taken place in Delhi. Moreover, PW-1 admitted in the cross-examination conducted on 08.11.2006 that the present suit has been filed for that balance of goods not delivered to the plaintiff. This part of testimony of PW-1 proves that suit has been filed for balance of goods which were delivered to defendants at Ferozpur (Punjab) in terms of agreement dated 19.08.2002 and the dispute as presented by the suit is the dispute arising out of agreement dated 19.08.2002 which was executed at Ferozpur (Punjab).

26. In view of aforesaid discussions, it is held that this Court has no territorial jurisdiction to try the present suit. Issue No. 1 is accordingly decided in favour of the defendants and against the plaintiff.

27. Issue Nos. 2 & 3

Since both these issues involve common discussion of facts and law, hence, for the sake of brevity both these issues are being taken up together. In findings on issue no. 1 above, it has been held that this Court has no territorial jurisdiction to entertain and try the present suit. As this Court has no territorial jurisdiction to entertain and try the suit, hence no finding is required to be given on both these issues. Both these issues stand answered accordingly.

28. Issue No. 4 (Relief) In findings on issue no. 1 above, it has been held that this Court has no territorial jurisdiction to try the present suit. In 21 Suit No. 710/08/03 - M/s Dolphin International Ltd. vs. M/s Pawan Kumar & Co. & Ors.

the circumstances, plaint be returned to the plaintiff for being presented before the competent Court having jurisdiction. File be consigned to Record Room.

(Announced in the open Court (HARISH DUDANI) on 09 March, 2010) th ADDL. DISTT. JUDGE-15 (CENTRAL) DELHI