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2014 DIGILAW 1034 (AP)

Creations a partnership firm rep. , by its Partner T. v. Ethiraj VS Twenty Four Assured Aircon Pvt. Ltd. , A company registered under the Companies Act, Rep. , by Sri Bibin Thomas

2014-08-14

L.NARASIMHA REDDY

body2014
Judgment : The 1st respondent filed O.S No. 736 of 2012 in the Court of III Additional Chief Judge, City Civil Court, Hyderabad against the petitioner and the 2nd respondent for recovery of certain amount. It was pleaded that the petitioner entered into contract with the 1st respondent for execution of work and though the work was executed, the amount referable thereto was not paid. On receiving summons in the suit, the petitioner entered appearance and filed I.A No. 2939 of 2012 under Order VII Rules 10 and 11 read with Section 151 CPC, with a prayer to decide the question pertaining to the jurisdiction of the trial Court as a preliminary issue and reject the plaint for want of jurisdiction in the matter. The principal contention was that there exists an arbitration clause in the agreement and accordingly, the suit was not maintainable. It was further alleged that the claim made by the 1st respondent is fictitious and non-existent. The I.A was opposed by the 1st respondent. The trial Court dismissed the I.A. through order dated 25-11-2013. Hence, this revision. Heard Sri M.R.S. Srinivas, learned counsel for the petitioner and Sri Thomas George, learned counsel for the 1st respondent who filed caveat. The 1st respondent filed the suit for recovery of the amount of Rs.25,00,000/- against the petitioner and the 2nd respondent. The petitioner wanted the trial Court to terminate the proceedings in the suit without conducting trial. A peculiar application was filed in this behalf. In I.A No. 2939 of 2012, the provisions of Order VII Rules 10 and 11 CPC on the one hand and Section 151 CPC on the other hand were invoked. Though Rule 10 of Order VII CPC was mentioned, no request was made for return of the plaint. A prayer referable to Rule 11 of Order VII was made, but as an alternative one. The principal prayer in the I.A was to decide the question pertaining to jurisdiction as a preliminary issue. Incidentally, even this was in relation to territorial jurisdiction. It is too well known that return of a plaint under Rule 10 of Order VII is mostly a step to be taken by the trial Court on its own accord, if any defect is noticed. In such a case, the plaintiff would be entitled to represent the plaint by complying with the deficiency pointed out by the Court. It is too well known that return of a plaint under Rule 10 of Order VII is mostly a step to be taken by the trial Court on its own accord, if any defect is noticed. In such a case, the plaintiff would be entitled to represent the plaint by complying with the deficiency pointed out by the Court. The return of a plaint is an exercise that precedes the numbering of the suit. Once the suit is numbered, the question of returning the plaint does not arise. The prayer for rejection of the plaint by invoking Rule 11 of Order VII can be made if only any of the grounds mentioned in that provision are shown and established. For that purpose, the contents of the plaint must be taken on their face value. Here again, the petitioner was not clear as to the ground on which the plaint must be rejected. On the one hand, arbitration was pleaded and on the other hand, lack of territorial jurisdiction was cited. These two are self-contradictory. Assuming that there was no prayer for deciding the question of territorial jurisdiction as a preliminary issue, the petitioner was not able to place before the trial Court, an unequivocal clause in any agreement providing for arbitration. The transactions between the parties are mostly through E-mails. The trial Court expressed inability to accede to the prayer under these peculiar circumstances. Learned counsel for the petitioner is not able to point out as to how these three self-contradictory and mutually exclusive prayers can be stuffed in one application and how the Court can be expected to grant relief. Assuming that there is a debatable issue pertaining to the territorial jurisdiction, it cannot be decided as a preliminary issue. Viewed from any angle, this Court does not find any basis to interfere with the order under revision. Accordingly, the C.R.P is dismissed. It is however directed that in case there exists any arbitration agreement between the parties, it shall be open to the petitioner to file an application in that behalf. As and when such an application is filed, the trial Court shall decide the same on its own merits after hearing both the parties, uninfluenced by any observations in this set of proceedings. The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.