Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1526 (RAJ)

Ramavatar Agarwal Thr. Lrs. v. Roshan Motors

2013-09-03

BELA M.TRIVEDI

body2013
JUDGMENT : Bela M. Trivedi, J. The present appeal has been filed under Order 43, Rule 1 of CPC by the appellant-plaintiff challenging the order dated 20.11.01 passed by the Addl. District Judge No.3, Jaipur City, Jaipur (hereinafter referred to as 'the trial court) in Civil Suit No. 11/96, whereby the trial court has returned the plaint of the appellants for being presented before the competent court. 2. It appears that the appellant-plaintiff had filed the suit seeking permanent injunction and rendition of the accounts against the respondents-defendants, alleging interalia that the respondent No. 1 was the agent of the respondent Nos. 2 and 3, who were engaged in business of financing the vehicles. The appellant-plaintiff had obtained a loan from the respondents for the vehicle-Bus after executing the agreement. According to the appellant-plaintiff, the respondents-defendants were not giving the correct accounts of the payments of instalments made by the appellant and were threatening the appellant to take forcible possession of the vehicle in question and, therefore, the suit was filed. The said suit was resisted by the defendants by filing the written statement denying the allegations levelled by the appellant and further contending interalia that as per the agreement, only the court at Bombay and Indore had the jurisdiction to entertain the suit. It appears that the trial court after framing the issues, from the pleadings of the parties, decided the issue of jurisdiction as preliminary issue and ordered to return the plaint for being presented before the court having jurisdiction, by the impugned order. 3. It is sought to be submitted by the learned counsel Mr. V.K. Tamoliya, for the appellant that the agreement in question was executed in Jaipur, the delivery of the vehicle was taken in Jaipur and the registration of the vehicle in question was also done in Jaipur and therefore, part of cause of action had arisen at the court at Jaipur only. 4. However, the learned counsel Mr. Manish Sharma for the respondents submitted that the parties having agreed to submit to the jurisdiction of Indore court and M.P. High Court, Indore, the court at Jaipur did not have the jurisdiction. 4. However, the learned counsel Mr. Manish Sharma for the respondents submitted that the parties having agreed to submit to the jurisdiction of Indore court and M.P. High Court, Indore, the court at Jaipur did not have the jurisdiction. He also submitted that even as per the Condition No. 14 of the Conditions contained in the printed form of the agreement, the dispute had to be referred to an Arbitrator and in that case the court at Bombay had the jurisdiction but not the court at Jaipur. Relying on the decision of the Apex Court in case of Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. (2004) SCC 671, he submitted that even in absence of use of the words "alone", "only" and "exclusive", the condition submitting the jurisdiction to a word 'court" would be binding to the parties to the agreement. 5. Having regard to the submissions made by the learned counsels for the parties and after perusing the documents placed on the record and the impugned order passed by the trial court it appears that the trial court while deciding the issue of jurisdiction as a preliminary issue has ordered to return the plaint for being presented in the competent court having jurisdiction, relying on the clause contained in the agreement. It further appears that the trial court while deciding the preliminary issue had not permitted the parties to lead the evidence. At this juncture it is pertinent to note that as per Order 14, Rule 2 (2), the court could try the issue of jurisdiction as the preliminary issue and dispose of the case on such issue, meaning thereby the court is required to give opportunity to the parties to lead the evidence, for trying the said issue of jurisdiction for being decided as preliminary issue. In the instant case it appears that there were two conditions, one contained in the agreement, which stated that "it is hereby agreed between owners hirer and guarantor that this agreement shall be subject to the jurisdiction of Indore Court and Madhya Pradesh High Court Indore", and the other condition contained in the printed form of conditions, which stated as under :- "It is agreed between the parties that in case of any dispute arising under this agreement the same shall be referred to an Arbitrator to be nominated by the owners and the award of the Arbitrator shall be final and binding on all the parties concerned including the Guarantor. The venue of such arbitration shall be in Indore. Save as aforesaid, the court at Bombay alone and no other courts whatsoever will have jurisdiction to try any suit in respect of any claim or dispute arising out of or under this Agreement or in any way relating to the same." 6. Thus, in view of the above two sets of conditions, it could not be said that there was clarity between the parties or that the parties were at ad idem on the issue of jurisdiction in case of any dispute arising between them. Such an intention of the parties to submit to the jurisdiction of one court alone could gathered only when the documents in question are proved by the parties by leading the evidence. Whether part of cause of action had arisen within the jurisdiction of Jaipur court or not would also be a matter of evidence. The trial court having decided the issue of jurisdiction as preliminary issue without permitting the parties to lead the evidence on the said issue, the impugned order suffers from illegality and hence deserves to be set aside. 7. At this juncture it is required to be noted that the appellant-plaintiff has not paid the outstanding amount to the respondents and enjoyed the possession of the vehicle for so many years during the pendency of the present appeal. According to the learned counsel Mr. Manish Sharma for the respondents, the outstanding amount is more than 10 lacs, which has been disputed by the learned counsel for the appellant. However, without entering into the merits of the case, the interest of justice would be met if the appellant is directed to deposit atleast Rs. According to the learned counsel Mr. Manish Sharma for the respondents, the outstanding amount is more than 10 lacs, which has been disputed by the learned counsel for the appellant. However, without entering into the merits of the case, the interest of justice would be met if the appellant is directed to deposit atleast Rs. 2 lacs towards the outstanding amount which he has failed to pay pending this appeal. 8. In that view of the matter, the impugned order dated 20.11.01 passed by the trial court is set aside and the trial court is directed to decide the issue of jurisdiction, in accordance with law after permitting the parties to lead the evidence. The appellant is also directed to pay to the respondents Rs. 2 lacs within a period of six weeks from today, failing which the respondents shall be at liberty to initiate the proceedings for the recovery of the outstanding amount and also take possession of the vehicle in question. The appeal stands allowed accordingly.