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2007 DIGILAW 133 (CAL)

DCM Limited v. Narendra Kumar Jain

2007-02-28

SUBHRO KAMAL MUKHERJEE

body2007
Judgment : SUBHRO KAMAL MUKHERJEE, J. (1) THIS is an appeal against Order No. 20 dated January 27, 1988 passed by the learned Assistant District Judge, Second Court at alipore, District 24-Parganas, in Title Suit No. 6 of 1987. (2) BY the order impugned the learned Trial Judge allowed an application filed by the defendant in the suit under Order 7, Rule 10 read with Section 151 of the Code of Civil Procedure. The learned Trial Judge directed return of the plaint to the plaintiff, inter alia, for presentation of the plaint in the appropriate Court in Delhi in terms of Clause 22 of the agreement dated May 19, 1978. (3) BEING aggrieved the plaintiff has come up with this appeal. (4) AN agreement was entered into between the parties to the suit on May 19, 1978 at Delhi for appointment of the defendant as the agent of the plaintiff to sell the products of the plaintiff and to run the store of the plaintiff at Gariahat Road, Calcutta. Under Clause 2 (a) of the said agreement the premises, where the agent should run the store of the plaintiff, would be hired in the name of the plaintiff. Under Clause 20 of the said agreement in the event of their being any actual or suspected breach of any of the terms of the said agreement or any foul play and/or misconduct on the part of the agent or his representatives, the company should have the right to enter the premises of the store, including the right to break open the lock of the store and take possession of all goods in stock, which were the property of the company and sales proceeds thereof at any time without notice to the agent. Under Clause 22 of the said agreement only the Courts in Delhi should have exclusive jurisdiction to decide any claim, dispute or difference arising out of, under or touching the said agreement or in respectj of meaning, interpretation or operation of any clause of the said agreement. (5) THE plaintiff filed Title Suit No. 6 of 1987, inter alia, for recovery of possession, permanent injunction and recovery of damages against the defendant/respondent. (5) THE plaintiff filed Title Suit No. 6 of 1987, inter alia, for recovery of possession, permanent injunction and recovery of damages against the defendant/respondent. The plaintiff, inter alia, contended in the said plaint that the plaintiff took a shop room with certain facilities on the ground floor of the premises No. P-12, Gariahat Road, Police Station- Gariahat, calcutta-29 on rent from Mrs. Cecilia, Sen at a rental of Rs. 1,200/ -. per month under an indenture dated February 20,1965. The defendant was appointed as an agent of the plaintiff to run the said shop under aforementioned agreement dated May 19,1978. The plaintiff alleged that the defendant was guilty of breach of contract and, therefore, the plaintiff was entitled to recover possession of the suit premises along with fixtures, fittings and furnitures etc. (6) THE said suit was instituted in the Court of the learned Assistant district Judge, Third Court at Alipore, District 24-Parganas. (7) THE defendant filed an application under Order 7, Rule 10 read with Section 151 of the Code of Civil Procedure contending, inter alia, that the learned Trial Judge had no jurisdiction to try the suit inasmuch as according to the said agency agreement any dispute arising out of the said contract should be decided by a competent Court at Delhi. (8) THE learned Trial Judge held that in view of the provisions of clause 22 of the said agency agreement he lacked territorial jurisdiction as the dispute and difference had arisen out of, under or touching the said agency agreement. (9) MR. Supriya Bose, learned Advocate, appearing for the appellant submits that the learned Trial Judge erroneously directed return of the plaint proceeding on a misconception that the learned Trial Judge lacked territorial jurisdiction. Mr. Bose refers to Section 16 of the Code of Civil procedure and submits that the suit for recovery of possession of the immovable property was rightly instituted in the said Court as the property is situate within the local limits of the said Court. (10) IN spite of service of notice of appeal none appears on behalf of the respondent at the time of hearing of this appeal. (11) IN the agreement, particularly in Clause 22, only Courts in Delhi is vested with the jurisdiction to decide the dispute between the parties in. the matters arising out of the transactions. (10) IN spite of service of notice of appeal none appears on behalf of the respondent at the time of hearing of this appeal. (11) IN the agreement, particularly in Clause 22, only Courts in Delhi is vested with the jurisdiction to decide the dispute between the parties in. the matters arising out of the transactions. It is true that such an agreement is not hit either by Section 23 or Section 28 of the Contract Act, 1872, but such a provision would apply to those cases where two or more Courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one Court. A clause vesting jurisdiction on a Court, which otherwise does not have jurisdiction to decide the matter, would be void. Even if there is an agreement between the parties, it has no effect and cannot be enforced. (12) THE Supreme Court of India in the case of Harshad Chiman Lai modi v. DLF Universal Limited and Another, reported in 2005 (7) SCC 791 observes that Sections 15 to 20 of the Code of Civil Procedure contain detailed provisions relating to jurisdiction of Courts. They regulate forum for institution of suits. They deal with the matters of domestic concern and provide for the multitude of suits, which can be brought in different Courts. Section 16 enacts that the suits for recovery of immovable property, or for partition of immovable property, or for foreclosure, sale or redemption of mortgage property, or for determination of any other right or interest in immovable property, or for compensation for wrong to immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. The proviso to Section 16 declares that where the relief sought for can be obtained through the personal obedience of the defendant, the suit can be instituted either in the Court within whose jurisdiction the property is situate or in the Court where the defendant actually or voluntarily resides, or carries on business, or personally works for gain Section 20 of the Code of Civil Procedure is a residuary section and covers all those cases not dealt with or covered by Sections 15 to 19. Section 16, thus, recognises a well established principle that actions against res or property should be brought in the forum where such res is situate. Section 16, thus, recognises a well established principle that actions against res or property should be brought in the forum where such res is situate. A Court within whose territorial jurisdiction the property is not situated has no power to deal with and decide the rights or interests in such property. A Court, which has no jurisdiction over a dispute, cannot give an effective judgment. The proviso to Section 16 is an exception to the main part of the section, which cannot be interpreted or constructed to enlarge the scope of principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be obtained by personal obedience of the defendant. (13) THE plaintiff files the suit for recovery of possession. The res or property is situate within the territorial jurisdiction of the Court where the suit was filed. The findings of the learned Trial Judge that only the Delhi court had jurisdiction in the matter was erroneous. Delhi Courts have no jurisdiction to entertain this suit as the res or property is situate within the territorial jurisdiction of the Alipore Court. (14) THEREFORE, the order impugned is set aside. (15) THE learned Trial Judge is directed to decide the suit on merits and in accordance with law. Since, this suit has been instituted in the year 1987, we trust and hope that the learned Trial Judge shall be able to decide the suit finally by December 2007. He is authorized not to grant any unnecessary adjournment to either of the parties. (16) SINCE, the respondent did not appear at the final hearing of the appeal, we make no order as to costs. Urgent xerox certified copy of this order, if applied for, is to be supplied expeditiously.