Hamburg Sud, Hamburg Sudamerikanishe v. Riba Textiles (P) Ltd. and Others
2012-12-06
A.N.JINDAL
body2012
DigiLaw.ai
A.N. Jindal, J.— (ORAL) Written request for adjournment on behalf of learned counsel for the petitioner, is declined. 2. The dispute is mainly about territorial jurisdiction of the Court. 3. The trial Court vide order dated 17.02.2011 allowed the application filed by defendant No.3-petitioner (hereinafter referred as 'the petitioner') under Order 7 Rule 10 CPC with the observations that the Court at Panipat has no jurisdiction to try the suit, but vide separate order of even date, forwarded the plaint to be filed before the Court at Gohana. Both the orders are under challenge. 4. Learned counsel for the petitioner has stated that the impugned order passed by the trial Court is not a legal one, in as much as, after having held that the Court at Panipat has no jurisdiction, the trial Court could not give any finding that the Court at Delhi and Gohana have the territorial jurisdiction, but should have stopped there and it was not the domain of the Court to pass an order on the application under Order 7 rule 10-A CPC for forwarding the case to Gohana Court. Secondly, it was urged that as per Bill of Lading, the Court of the City of Hamburg, Germany had the jurisdiction to try the suit instead of the Court at Gohana. Thirdly, it has been urged that as per the goods receipt dated 05.09.2008 issued by the plaintiff-respondent No.1, the Courts at New Delhi would have the exclusive jurisdiction to try and entertain the present suit. Learned counsel for the petitioner has also urged that in any case, if the suit has not been filed in Germany Court, then it should have been filed in the Court at Delhi, as the office of the petitioner is located at Delhi. Lastly, It has been contended that as per the facts of the case, the goods were stuffed in the factory of plaintiff-respondent No.1 at Gohana, where the seals were put on the cartons and thereafter, the same were transported for Delhi through defendant No.1. Further the defendant No.2 was to take the goods from Delhi to Mumbai and thereafter, the petitioner was to take those goods from Mumbai to Germany. As such, since no cause of action had accrued at Gohana, therefore, the Court at Gohana had no jurisdiction to try the suit. 5.
Further the defendant No.2 was to take the goods from Delhi to Mumbai and thereafter, the petitioner was to take those goods from Mumbai to Germany. As such, since no cause of action had accrued at Gohana, therefore, the Court at Gohana had no jurisdiction to try the suit. 5. To the contrary, learned counsel for the plaintiffrespondent No.1 has urged that it has been categorically stated in the plaint that 968 cartons of terry towels were stuffed from the factory of the plaintiff at Gohana, under the supervision of Central Excise Staff, for its delivery to M/s Metro Rail Germany. The plaintiff has its unit to produce terry towels and is a supplier and the said consignment was stuffed in the factory situated at Village Chidana, Tehsil Gohana, District Sonipat, from where the goods were transported through defendant No.1 to Delhi, from where the goods were to be transported to Mumbai through defendant No.2. Thereafter, the same were to be forwarded to Germany by the petitioner. Since the goods were delivered by the plaintiff with seals intact to defendant No.1 at Gohana and losses accrued in transit, as such, the Court at Gohana has the jurisdiction to try the suit. 6. Heard. The allegations are that all the defendants in connivance with each other, did not send the goods, in same condition in which these were delivered by the plaintiff, for onward transfer to Germany and were changed in transit, resulting into loss to him. 7. Having considered the rival contentions, it cannot be said by any stretch of imagination that no cause of action had accrued at Gohana. Since, the goods were initially dispatched from Gohana and received by defendant No.1 at Gohana, therefore, the Court at Gohana certainly has the jurisdiction to entertain the suit, as part of cause of action had accrued there. The case is fully covered by Section 20 of the CPC and example appended thereto. 8. As regards the power to transfer the case to the appropriate Court, it would be appropriate to reproduce Order 7 Rule 10-A CPC, which reads as under:- 10A.
The case is fully covered by Section 20 of the CPC and example appended thereto. 8. As regards the power to transfer the case to the appropriate Court, it would be appropriate to reproduce Order 7 Rule 10-A CPC, which reads as under:- 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 appearance 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 the summons for appearance in the suit, unless that court, for reasons to be recorded, otherwise directs, 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 for fixed by the court by which the plaint was returned.” 9. The impugned order appears to have been passed in complete conformity with the Order 7 Rule 10-A of the Code. 10. No grounds to interfere. 11. Dismissed. 12. The parties are directed to appear before the Court at