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2008 DIGILAW 1675 (PNJ)

Rohit Aggarwal v. Pfizer Limited

2008-09-29

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. Present revision petition is directed against the orders passed by the learned Additional Civil Judge (Sr.Division), Dasuya vide which objections filed by the petitioner under section 47-A read with section 151 of the Code of Civil Procedure has been ordered to be dismissed. 2. The decree holder filed a summary suit under section 37 of the Code in the Honble High Court of Mumbai. A decree for the recovery of a sum of Rs. 22,67,479/- along with interest was passed against the objector. 3. The decree passed by Honble High Court of Mumbai stands transferred to the Executing Court. The objector claimed that the decree is in executable being nullity by raising the following grounds: (i) The objector has his place of residence and business at Dasuya District Hoshiarpur and therefore, only the civil court at Dasuya had the jurisdiction to try and decide the case and the civil court at Mumbai had no territorial jurisdiction to pass any decree as per the provisions of Section 20 of the Code. (ii) It was claimed that as the civil court at Mumbai inherently lacked the jurisdiction, there fore, the objections to the decree could be raised even in the execution proceedings. (iii) Three cheques dated 19.8.2001 for a sum of Rs. 7,00,000/- were given as security in due course of business which were payable at Dasuya. It was claimed that the cheques were dishonoured at Dasuya and therefore, Dasuya Court had only jurisdiction to pass the decree. (iv) It was also claimed that the decree was secured by the decree holder by playing fraud by supplying intentionally wrong fact/information and documents. 4. The decree holder appeared in reply to the notice issued and took a plea that the objections were not maintainable as the decree was passed by Honble High Court of Mumbai. It was also claimed that the objections have been filed with mala fide intention only to cause unnecessary delay and that the objections frivolous. 5. On merit, it was claimed that a cause of action has accrued at Mumbai and therefore, Honble High Court of Mumbai had the jurisdiction to adjudicate the matter on its original side. It was also claimed that decree could not be said to be nullity and non est. 6. 5. On merit, it was claimed that a cause of action has accrued at Mumbai and therefore, Honble High Court of Mumbai had the jurisdiction to adjudicate the matter on its original side. It was also claimed that decree could not be said to be nullity and non est. 6. It is the case of the petitioner that in view of the provisions of Section 20 of the Code the jurisdiction cannot be given to a court where the plaintiff resides or carries on business. It was also claimed that where the head office of company is situated also does not ipso facto give cause of action to the court. 7. The contention was also raised that parties by way of agreement cannot press the jurisdiction in the court which does not have jurisdiction and thus, it was claimed that the decree passed was nullity and therefore, not executable. 8. The decree holder claimed that decree could not be said to be a nullity as it had been passed by the competent court. Reference was made to the pleadings in the plaint to assert that as part of cause of action had accrued at Mumbai and therefore, as per provisions contained in Section 20 (c) of the Code the suit could be filed where the cause of action in whole or in part has arisen. It was also claimed that the decree could be said to be a nullity if it is passed by the court which lacks inherent jurisdiction and not otherwise. 9. Learned Executing Court rejected the contention of the decree holder that the court did not have the jurisdiction to entertain the objections as it was observed that in view of Section 47 of the Code all questions relating to execution, discharge and satisfaction of decree is to be dealt with by the Executing Court. It was also held that transferee court has all the powers which the Executing Court has. 10. Learned Executing Court referred to the averments made in the plaint to come to a conclusion whether the Honble High Court of Bombay had the jurisdiction to entertain and try the suit or not. Learned Executing Court noticed the following averments: " In para 2 it is alleged that plaintiff (DH) are inter-alia carrying business of manufacturing and selling pharmaceuticals, drugs, etc. The defendant is carrying on business as a dealer of pharmaceuticals drugs, etc. Learned Executing Court noticed the following averments: " In para 2 it is alleged that plaintiff (DH) are inter-alia carrying business of manufacturing and selling pharmaceuticals, drugs, etc. The defendant is carrying on business as a dealer of pharmaceuticals drugs, etc. Defendant was regularly purchasing from the plaintiffs various products manufactured by the plaintiffs and was paying the purchase prices to the plaintiff for the same. The suit herein is filed by the plaintiffs to recover the price of the goods sold and duly delivered by the plaintiff to the defendant, pursuant to orders placed by defendant on them. In para 3 it is averred that plaintiffs, thereafter raised 7 invoices on the defendant aggregating to a price of Rs. 21,23,361/-. Defendant duly received and accepted the said invoices and also received goods covered by the same. Defendant in discharge of abovesaid liability namely price of abovesaid goods sold and delivered issued to the plaintiffs the following cheques as detailed in para 5 of the plaint. The said cheques were sent by the plaintiffs through their bank from Mumbai to Dasuya Punjab National Bank, same were dishonoured by Punjab National Bank Dasuya. 11. Further in para 16 plaintiffs-DH made averments that defendant was to make the payment for the said invoices in Mumbai. The invoices clearly mention that the invoices raised are subject to Bombay/Mumbai jurisdiction. The aforesaid cheques were given, which upon presentation for payment at Bombay were dishonoured. The plaintiffs (DH) therefore sent notices through their counsel calling upon the defendant to pay the said dues which they failed to do. A substantial part of cause of action, has arisen at Bombay. However, the defendant resides and/or works for gain in Punjab which is outside the jurisdiction of Honble Court Plaintiffs/ (DH) therefore submit that with grant of leave under Clause XII of the Letters Patent this Honble Court will have jurisdiction to entertain, try and dispose of the suit. From the abovesaid averments of the plaint it cannot be said that on its face the Civil Court at Bombay has got no jurisdiction, because perusal of the abovesaid allegations shows that part of cause of action definitely has arisen with the jurisdiction of Civil Court at Bombay." 12. From the abovesaid averments of the plaint it cannot be said that on its face the Civil Court at Bombay has got no jurisdiction, because perusal of the abovesaid allegations shows that part of cause of action definitely has arisen with the jurisdiction of Civil Court at Bombay." 12. Learned Executing Court after referring to the averments made in the plaint rejected the plea by observing that dishonouring of the cheques could not be the only and whole cause of action as was claimed by the objector. 13. Learned court also observed that the jurisdiction of the High Court of Bombay could not be ousted merely because the cheques were drawn on a bank which was located at Dasuya once it was proved that the goods were supplied by the decree holder from Bombay. Thus, the plea of the petitioner was rejected. 14. Mr. G.S. Punia, learned counsel appearing on behalf of the petitioner placed reliance on the Full Bench judgment of Honble Bombay High Court in the case of Joytsna K, Valia v. T.S. Parekh & Co., 2007(4) Civil Court Cases 289, to contend that summary suit on the pleadings was not competent in the absence of written contract between the parties. 15. This plea of the petitioner is liable to be rejected for more than one grounds. The point sought to be agitated was not raised by the petitioner before the learned Executing Court. Even otherwise, it cannot be said that the Honble High Court of Bombay did not have the jurisdiction to try the summary suit. Even if for the sake of arguments plea is taken to be correct still it cannot be a ground to oust the jurisdiction to claim that the decree is a nullity so as to challenge it in the execution proceedings. 16. Learned counsel for the petitioner thereafter placed reliance on the judgment of Honble Supreme Court in the case of Sarwan Kumar & Anr. v. Madan Lal Aggarwal, 2003(1) RCR(Rent) 347 : 2003(1) Apex Court Judgments 282 (SC), wherein Honble Supreme Court has been pleased to lay down as under : "22. For the reasons stated above, the appeal is accepted. The order passed by the High Court as well as the executing court regarding the executability of the decree passed by the civil court are set aside. For the reasons stated above, the appeal is accepted. The order passed by the High Court as well as the executing court regarding the executability of the decree passed by the civil court are set aside. It is held that the jurisdiction of the civil court to pass the decree for ejectment was barred. A decree passed by a court having no jurisdiction over the subject-matter would be a nullity and the judgment debtor can object to the execution of such a decree being a nullity and non est. Its invalidity can be set up whenever it is sought to be forced including the stage of execution of the decree or any other collateral proceedings. We are conscious of the fact that it would work a great hardship on the respondent decree holder who would not be able to reap the benefit of the decree passed in his favour having won at all the stages but the vagaries of law can not be helped. Accordingly, appeal is accepted. Orders of the High Court and the executing court are set aside. It is held that the decree obtained by the decree holder cannot be executed being a nullity and non est. The parties are directed to bear their own costs." 17. However, this plea of the learned counsel for the petitioner also deserves to be rejected. In the case of Sarwan Kumar & Anr. v. Madan Lal Aggarwal (supra) the question was whether the civil court had jurisdiction. It was held that the jurisdiction of the civil court to pass ejectment decree was barred and therefore, that was a case of inherent lack of jurisdiction and not with respect of the jurisdiction having been exercised wrongly. The judgment relied upon by the petitioner, therefore, would have no application to the facts of the present case. 18. Finally, learned counsel for the petitioner also placed reliance on the judgment of Honble Supreme Court in the case of Balvant Viswamitra& Ors. v. Yadav Sadashiv Mule (D) through LRs. & Ors., 2004(4) RCR(Civil) 230 : 2004(3) Civil Court Cases 485, wherein Honble Supreme Court was pleased to draw a distinction between the decree which is void and the decree which is wrong, incorrect, irregular or not in accordance with law. v. Yadav Sadashiv Mule (D) through LRs. & Ors., 2004(4) RCR(Civil) 230 : 2004(3) Civil Court Cases 485, wherein Honble Supreme Court was pleased to draw a distinction between the decree which is void and the decree which is wrong, incorrect, irregular or not in accordance with law. The Honble Supreme Court was pleased to lay down that a court which lacks inherent jurisdiction in passing the decree or making an order, the decree or order passed by such court would be without jurisdiction, non est and void ab initio as the defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or making an order. The validity of such order can be challenged at any stage. 19. however, a decree suffering from illegality, irregularity or of a procedural defect cannot be termed as inexecutable by the Executing Court and the remedy of such person would be to get the decree set aside by duly constituted legal proceedings or by superior court. 20. In the present case, decree passed cannot be said to be totally without jurisdiction or non est and thus, the judgment in the case of Balvant Viswamitra & Ors. v. Yadav Sadashiv Mule (D) through LRs. & Ors. (supra), would be in fact against the contention raised by the learned counsel for the petitioner. 21. It may further be noticed here that under Clause 12 of the Letters Patent the Honble High court of Bombay with permission can entertain a suit even if the jurisdiction under section 20 of the Code is not made out. 22. The reading of the plaint would show that permission was sought for leave to file the suit. In the present case, it is rightly held by the learned Executing Court that the Honble High Court had jurisdiction in view of the fact that part of cause of action had accrued at Bombay. Even if for the sake of arguments the plea is taken to be correct though not accepted still in view of Clause XII of the Letters Patent the Honble High Court at Bombay had the jurisdiction to entertain the suit. No ground is, therefore, made out to interfere with the order passed by the learned Executing Court.