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2004 DIGILAW 171 (CAL)

NICCO UCO CREDIT LIMITED v. BENELUX CAPITAL S. A.

2004-03-09

ASHIM KUMAR BANERJEE

body2004
ASHIM KUMAR BANERJEE, J. ( 1 ) THIS is an application for revocation of leave granted under clause 12 of the Letters Patent made by the defendant. The plaintiff entered into a contract with the defendant inter alia for raising capital to be raised by the defendant on behalf of the plaintiff. In paragraph 9 of the plaint the plaintiff stated as follows :"9. The plaintiff states that both the said agreements dated 12th September, 2002 and 11th November, 2002 were executed by the plaintiff at its office situated at 2, Hare Street, Kolkata-700 001 within the jurisdiction of this hon'ble Court. The said agreements were thereafter sent by the plaintiff to the defendant to its registered office at Deaufort House, Road Town, Tortola, british Island and the said agreements were executed by the defendant at the British Virgin Islands outside the jurisdiction of this Hon'ble Court". ( 2 ) EARLIER in paragraph 1 of the plaint the plaintiff stated that they were carrying on business at all material times within the jurisdiction of this Court. ( 3 ) PARAGRAPH 35 of the plaint being also relevant herein is quoted below :"35. The-said agreements dated 12th September, 2002 and 11th November, 2002 were executed and concluded by the plaintiff at its office at 2, Hare street, Kolkata-700 001 within the jurisdiction of this Hon'ble Court. The said sum of US$ 20,000 and said sum of US$ 2,625 were both paid by the plaintiff through its banker, being the UCO Bank, International Banking branch, having its office at 4 and 4/1 Red Cross Place, Kolkata-700 001 within the jurisdiction of this Hon'ble Court. For the said reasons as also for the reasons more fully and particularly stated in paragraphs 1 and 9 hereinabove a part of the cause of action arose within the jurisdiction of this Hon'ble court and inasmuch as the payment of the said sums of US$ 20,000 and us$ 2,625 were received by the defendant at its office at Deaufort House, road Town, Tortola, British Virgin Islands outside the jurisdiction of this hon'ble Court, it is just and proper that leave be granted to the plaintiff under clause 12 of the Letters Patent to institute this suit". ( 4 ) ON perusal of paragraph 35 of the plaint it appears that the plaintiff invoked the jurisdiction of this Court on the basis of the pleadings made in paragraphs 1 and 9 of the plaint. Mr. Joy Saha, learned Counsel appearing for the plaintiff in his usual fairness concedes that the averment made in paragraph 1 does not per se constitute any cause of action. He however submits that the plaintiff suffered injury at such place although no such pleading has been made in the plaint. In paragraph 9 of the plaint it has been averred that the plaintiff executed the contract at Calcutta within the jurisdiction of this Court and paid money from its bank at Calcutta. It has also been stated that the contract was sent to the defendant outside the jurisdiction of this Court for their signature which was signed by the defendant outside the jurisdiction of this Court. The payment was also received by the defendant outside the jurisdiction of this Court. Mr. Saha, however, has drawn my attention to paragraph 31 of the plaint which reads as follows :"31. The defendant is representing and/or holding itself out to the public at large to be a creditor of the plaintiff. The defendant is representing to the people and the financial community at large that the plaintiff is not entitled to raise any money on account of its project, inasmuch as the plaintiff is unable to make payment of the said bill/invoice of the defendant dated 19th February, 2003". ( 5 ) REFERRING to paragraph 31 Mr. Saha contends that his suit is based upon wrongful representation of the defendant to the public at large to the extent that the plaintiff was not entitled to raise any money on account of the project as the plaintiff was unable to make payment of the invoice raised by the defendant. Assuming that Mr. Saha's submission is correct to the extent that such wrongful representation was made by the defendant causing injury to the plaintiff at Calcutta within the jurisdiction of this Court such averment is conspicuously absent either in paragraph 31 or in paragraph 35 of the plaint where the jurisdiction of this Court has been pleaded. ( 6 ) MR. Saha's submission is correct to the extent that such wrongful representation was made by the defendant causing injury to the plaintiff at Calcutta within the jurisdiction of this Court such averment is conspicuously absent either in paragraph 31 or in paragraph 35 of the plaint where the jurisdiction of this Court has been pleaded. ( 6 ) MR. Ranjan Bachwat, learned Counsel appearing in support of this application has drawn my attention to the paragraph 15 of the decision of the Apex Court in the case of A. B. C. Laminart Pvt. Ltd. and Anr. vs. A. P. Agencies, Salem, reported in AIR 1989 SC 1239 . The said paragraph is quoted below :"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 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 determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a Court within whose jurisdiction the acceptance was communicated. 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. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors". ( 7 ) ON perusal of the aforesaid paragraph quoted (supra) it would appear that signing of a contract by the plaintiff unilaterally cannot give rise to cause of action unless and until the contract is concluded by the defendant by accepting the offer which has admittedly been done outside the jurisdiction of this Court in the instant case. Moreover, the amount covered under the contract was payable outside jurisdiction of this Court. Issuance of a cheque from a bank at Calcutta, in my view, dies not give rise to cause of action for the purpose of determining jurisdiction of this Court. ( 8 ) EVEN if I accept the submission of Mr. Saha that this Court has jurisdiction on the basis of the averments made in the plaint, from the forum selection clause stipulated in the contract it appears that the parties by agreement decided that any proceeding to be initiated by the instant plaintiff would be the Courts of British Virgin Islands. Clause 14 of the agreement being relevant herein is quoted below :"14. LAW AND JURISDICTION 14. 1. This agreement shall be governed by and construed in accordance with the laws of the British Virgin Islands. 14. 2. NUAL irrevocably agrees for the exclusive benefit of BENELUX that the Courts of the British Virgin Islands shall have jurisdiction to hear and determine any suit action or proceedings, and to settle any disputes which may arise out of or in connection with this agreement and for such purposes irrevocably submits to the jurisdiction of such Courts. 14. 3. 2. NUAL irrevocably agrees for the exclusive benefit of BENELUX that the Courts of the British Virgin Islands shall have jurisdiction to hear and determine any suit action or proceedings, and to settle any disputes which may arise out of or in connection with this agreement and for such purposes irrevocably submits to the jurisdiction of such Courts. 14. 3. Nothing contained in this clause shall limit the right of BENELUX to make use of any other Court of competent jurisdiction, nor shall the taking of any such proceedings in one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not (unless precluded by applicable law ). 14. 4. NUAL irrevocably waives any objection which it may have now or in the future to the Courts of the British Virgin Islands being nominated for the purpose of paragraph 14. 2 above and agrees not to claim that any such court is not a convenient or appropriate forum". ( 9 ) MR. Saha while distinguishing this clause has drawn my attention to clause 14. 3 wherein it was provided that the forum selection clause would be applicable to the plaintiff only and would not be applicable in the case of the defendant. According to Mr. Saha, this clause is unreasonable and the parties were not treated at par while executing the said agreement. In my view, the parties keeping their eyes wide open entered into the contract wherein they agreed that any action to be initiated by the plaintiff would be at a particular place outside the jurisdiction of this Court and even if the plaintiff has cause of action invoking the territorial jurisdiction of this Court, the suit would not be maintainable in this Court in view of clause 14 of the contract. ( 10 ) IN the result, the application succeeds. The leave granted in Civil Suit No. 133 of 2003 under clause 12 of the Letters Patent is revoked. The department is directed to return the plaint to the plaintiff with liberty to present it before the appropriate Court. ( 11 ) G. A. No. 4389 of 2003 is disposed of accordingly. There would be no order as to costs. ( 12 ) ALL parties are to act on a xeroxed signed copy of this dictated order on the usual undertaking. Appeal succeeds.