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2013 DIGILAW 537 (HP)

Malhotra Medical Store v. Abhinav Associates

2013-06-14

SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J. 1. PLAINTIFF - appellant, hereinafter referred to as the appellant, filed a suit for recovery of the amount of Rs.4,13,532/- against the defendant-respondent, hereinafter referred to as the defendant. 2. VIDE judgment dated 3.12.2011, passed in Civil Suit No.150/05, titled as M/s Malhotra Medical Store versus M/s Abhinav Associates, trial Court dismissed the suit, holding that the Court did not have jurisdiction to entertain the same. However, even on merits the Court rejected the claim of the plaintiff. Aggrieved thereof, plaintiff preferred an appeal, under the provisions of Section 96 of the Code of Civil Procedure. Vide judgment dated 19.1.2013, passed in Civil Appeal No.9 of 2012, titled as M/s Malhotra Medical Store versus M/s Abhinav Associates, learned District Judge, Mandi, set aside the findings returned by the trial Court on merits qua issues No.1, 2, 3 and 5 to 7, but upheld the findings qua Issue No.4, which was with regard to the jurisdiction of the Court to entertain the suit. Cross-objections filed by the defendant were also dismissed. 3. AGREEMENT dated 30.10.2002 executed inter se the parties contains the following clauses, with regard to ouster of jurisdiction of the Courts within the State of Himachal Pradesh, which are pressed on behalf of the defendant : "16. The above mentioned agreement will be for a minimum period of one year and Second Party can renew or terminate the agreement after one year and during this period Second Party will not involve itself in the sales of any other company's health care products. 17. All the disputes between the First Party and the Second Party will be decided in the Ambala Court of jurisdiction. 18. The above agreement is signed at Ambala and both the parties have affixed their signature herein acceptance of the terms and conditions as stated above subject to the conditions of the following terms mentioned in the Summary." 4. SIGNIFICANTLY, the agreement does not stipulate ouster of jurisdiction of Courts in Himachal Pradesh and conferring exclusive jurisdiction in the Courts at Ambala. Also, it is seen that certain transactions inter se the parties had taken place within the territorial jurisdiction of the State of Himachal Pradesh and particularly at Mandi. Goods were supplied and payments were made at Mandi, Himachal Pradesh. Also, it is seen that certain transactions inter se the parties had taken place within the territorial jurisdiction of the State of Himachal Pradesh and particularly at Mandi. Goods were supplied and payments were made at Mandi, Himachal Pradesh. In this view of the matter, findings returned by the Courts below qua Issue No.4, which deals with the jurisdiction of the Court to entertain the suit, cannot be said to be sustainable in law. As such, the present appeal is allowed and the judgment dated 19.1.2013, passed in Civil Appeal No.9 of 2012, titled as M/s Malhotra Medical Store versus M/s Abhinav Associates, by learned District Judge, Mandi, is set aside in toto, holding that the suit was instituted in a Court having competent jurisdiction. Matter is remanded back to the lower appellate Court with a direction to consider all the remaining issues and decide the matter in accordance with law. Parties, through their learned counsel, are directed to appear before the first appellate Court on 18.7.2013. With the aforesaid observations, present appeal stands disposed of, so also the pending application(s), if any.