JUDGMENT AND ORDER : M.R. Shah, J. Feeling aggrieved and dissatisfied with the impugned order dated 28.08.2017 passed by the learned Judge, Commercial Court, Vadodara (hereinafter referred to as "learned Commercial Court") below Exh.23 in Commercial Civil Suit No.240/2016 (Old Summary Suit No.38/2015), by which the learned Commercial Court has partly allowed the said application preferred by the original defendants and has returned the plaint to the original plaintiff to present it before the Court of competent jurisdiction, the original plaintiff has preferred the present Appeal From Order under the provisions of the Commercial Courts Act, 2015. 2. The facts leading to the present Appeal From Order in nutshell are as under: (2.1) That initially the original plaintiff instituted summary suit against the original defendants in the Court of learned Principal Senior Civil Judge, Vapi being Summary Suit No.38/2015 for a decree of principal amount of USD 1,92,000 as well as the interest. From the averments in the plaint it appears that the original plaintiff prayed for the decree of the aforesaid amount on the goods supplied to the original defendants under the invoices for the sale and supply of Herbal Extract materials on or about 03.10.2012 and 29.10.2012. That thereafter on establishment of the Commercial Court at Vadodara under the provisions of the Commercial Courts Act, 2015, the aforesaid summary suit came to be transferred to the Commercial Court, Vadodara having jurisdiction and the same came to be renumbered as Commercial Civil Suit No.240/2016. There was a delay of approximately 29 days by the defendants in filing the appearance in the suit which were required to be filed under the provisions of Order 37 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). An application was submitted on behalf of the original defendant No.2 requesting to condone the delay of 29 days caused in filing the appearance in the suit. However, the said application Exh.9 came to be rejected by the learned Commercial Court which came to be challenged by the original defendant No.2 before this Court by way of Special Civil Application No.20639/2016. However, the said application Exh.9 came to be rejected by the learned Commercial Court which came to be challenged by the original defendant No.2 before this Court by way of Special Civil Application No.20639/2016. By judgment and order dated 30.03.2017, the Division Bench of this Court allowed the said Special Civil Application and quashed and set aside the order passed by the learned Commercial Court rejecting the application Exh.9 i.e. refusing to condone the delay of 29 days caused in entering the appearance in the summary suit by the defendant No.2 with cost to be deposited within a period of four weeks and thereby condoned the delay of 29 days caused in entering the appearance in the Commercial Court by the defendant No.2. It appears that thereafter the defendant No.2 entered the appearance in the aforesaid commercial suit. That thereafter the original defendants submitted the application Exh.23 under Order 7 Rule 10 and Order 7 Rule 11 of the CPC and requested to reject the plaint contending inter alia that in view of the jurisdiction clause in the agreement more particularly in the purchase order, only the Court at Indiana Polis, Indiana, USA (hereinafter referred to as "Indian Court") would have jurisdiction and therefore, the Pardi Court and now the Commercial Court, Vadodara would not have any jurisdiction. The said application was opposed by the original plaintiff submitting that in the invoices at the bottom it was specifically mentioned that the invoices are subjected to Pardi (India) jurisdiction and therefore, Pardi Court also would have jurisdiction. It was also submitted that considering section 20 of the CPC, the Pardi Court also would have territorial jurisdiction. By impugned order the learned Commercial Court has allowed the said application Exh.23 partly and has ordered to return the plaint to the original plaintiff to present it before the Court of competent jurisdiction, while exercising the powers under Order 7 Rule 10 of the CPC. (2.2) Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge below Exh.23 in returning the plaint to the plaintiff to be presented before the Court of competent jurisdiction, in exercise of powers under Order 7 Rule 10 of the CPC, the original plaintiff has preferred the present Appeal From Order. 3. (2.2) Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge below Exh.23 in returning the plaint to the plaintiff to be presented before the Court of competent jurisdiction, in exercise of powers under Order 7 Rule 10 of the CPC, the original plaintiff has preferred the present Appeal From Order. 3. Shri Mihir Thakore, learned Senior Advocate has appeared on behalf of the appellant herein - original plaintiff and Shri D' Costa, learned Advocate has appeared with Shri Nachiket Dave, learned Advocate appearing on behalf of the respondent No.2 herein - original defendant No.2. 4. Shri Thakore, learned Counsel appearing on behalf of the appellant herein - original plaintiff has vehemently submitted that the learned Commercial Court has materially erred in allowing the application Exh.23 and returning the plaint to the plaintiff while exercising the powers under Order 7 Rule 10 of the CPC. It is further submitted by Shri Thakore, learned Counsel appearing on behalf of the appellant herein that the learned Commercial Court has materially erred in holding that in view of the exclusive jurisdiction clause in the purchase order, despite the fact that in the invoices it was specifically stated that Pardi (India) Court also would have jurisdiction, the suit in the Indian Court shall not be maintainable and only the Court at Indiana shall have exclusive jurisdiction. It is further submitted by Shri Thakore, learned Counsel appearing on behalf of the appellant herein - original plaintiff that the entire cause of action for filing of the suit has arisen within the territorial limits of the jurisdiction of the Court at Vapi and therefore, initially the suit was rightly instituted/filed in the Vapi Court and thereafter the same was rightly transferred to the Commercial Court, Vadodara. (4.1) It is further submitted that the learned Commercial Court has not properly appreciated the fact that even otherwise considering the relevant provisions of the CPC more particularly section 20 of the CPC, the Court at Vapi also would have the jurisdiction inasmuch as the invoices in respect of which the plaintiff has made the claim were issued by the plaintiff from the factory premises situated within the territorial jurisdiction of Vapi Court, the supply of herbal extract materials as recorded in the invoices was effected by the plaintiff from its factory premises. It is submitted that therefore as such the entire cause of action has arisen within the local limits of the jurisdiction of the Court at Vapi and as such no cause of action has arise in the Indiana Court. (4.2) It is further submitted by Shri Thakore, learned Counsel appearing on behalf of the appellant herein - original plaintiff that assuming that there was some exclusive jurisdiction clause in the purchase order, however thereafter when the invoices were actually issued and the goods were sent on the basis of such invoices, it was specifically stated that the same is subject to Pardi (India) Court and therefore, it can be said that the plaintiff did not agree to the exclusive jurisdiction clause contained in the purchase order. It is submitted that purchase order as such can be said to be an offer and the contract can be concluded only when the invoices are issued and thereafter the goods are dispatched. It is submitted that therefore the learned trial Court has material erred in relying upon the terms and conditions of the purchase order and the clause provided for exclusive jurisdiction of the Indiana Court. (4.3) It is further submitted by Shri Thakore, learned Counsel appearing on behalf of the appellant herein - original plaintiff that even otherwise the learned Commercial Court has materially erred in returning the plaint to the plaintiff to present it before the foreign Court in exercise of powers under Order 7 Rule 10 of the CPC. It is submitted that in exercise of powers under Order 7 Rule 10 of the CPC the Court in India cannot return the plaint to the plaintiff to present it before the foreign Court. It is submitted that therefore also the impugned order passed by the learned Court deserves to be quashed and set aside. (4.4) Shri Thakore, learned Counsel appearing on behalf of the appellant herein - original plaintiff has taken us to the necessary averments in the plaint more particularly the cause of action pleaded in paras 8 and 9 and has submitted that the Pardi Court and now the Commercial Court, Vadodara can also be said to have the jurisdiction. (4.4) Shri Thakore, learned Counsel appearing on behalf of the appellant herein - original plaintiff has taken us to the necessary averments in the plaint more particularly the cause of action pleaded in paras 8 and 9 and has submitted that the Pardi Court and now the Commercial Court, Vadodara can also be said to have the jurisdiction. Making above submissions and relying upon following decisions of the Hon'ble Supreme Court as well as the Delhi High Court, it is requested to allow the present Appeal from Order and quash and set aside the impugned order passed by the learned Commercial Court below Exh.23. 1. Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32 2. M/s. Vansh Exports Inc. & Anr. vs. M/s. Kripal Import Exports Pvt. Ltd., 2011 SCCOnLine(Del) 1803 3. Skanska Cementation India Ltd. vs. Bajranglal Agrawal & Ors., 2002 SCCOnLine(Bom) 1190 4. Suresh Chand Purwar (Karta) vs. Vivek Purwar and Ors., (2014) 14 HCC(Del) 713 5. Mittal Extrusion Works Private Ltd. vs. Biogenetic Drugs Pvt. Ltd., (2013) 134 DRJ 723 6. M/s. O K Play India Limited vs. Pradeep Tayal Decision dated 15.04.2015 in C.R.P. Nos.139/2014 7. Butler Machine Tool Co. Ltd. vs. ExCellO Corporation, (1979) 1 AllER 965 5. Present Appeal From Order is vehemently opposed by Shri D' Costa, learned Counsel appearing on behalf of the respondent No.2 herein - original defendant No.2. (5.1) Shri D' Costa, learned Counsel appearing on behalf of the respondent No.2 herein - original defendant No.2 has vehemently submitted that in the facts and circumstances of the case and considering the exclusive jurisdiction clause contained in the contract between the parties more particularly the purchase order which was agreed by the plaintiff, the learned Commercial Court has not committed any error in holding that in view of the exclusive jurisdiction clause, the Indiana Court only would have jurisdiction and the Court in India would not have any jurisdiction. It is further submitted that in the purchase order itself, which contains the exclusive jurisdiction clause of Indiana Court, it was specifically mentioned that the purchase order shall only be treated as a contract including the terms and conditions mentioned in the purchase order. It is further submitted that in the purchase order itself, which contains the exclusive jurisdiction clause of Indiana Court, it was specifically mentioned that the purchase order shall only be treated as a contract including the terms and conditions mentioned in the purchase order. It is submitted that in the purchase order it was specifically mentioned that the said form (purchase order) when properly signed is the only form that will be recognized by the purchaser as authority for charging goods or services to its account and it is understood and agreed that there is no oral understanding or agreement between the purchaser and seller other than the conditions stated in the purchase order, or any subsequent change notices. It is submitted that in the purchase order also it was specifically mentioned that no qualifying terms stated by the seller in accepting or acknowledging shall be binding upon the purchaser unless accepted in writing by the purchaser. It is submitted that therefore any clause mentioned in the invoices contrary to the terms and conditions/clauses mentioned in the purchase order, not accepted by the purchaser in writing shall not be binding to the purchaser and even the seller and therefore, the terms and conditions/clauses mentioned in the purchase order only shall prevail and shall be binding between the purchaser and the seller. It is further submitted by Shri D' Costa, learned Counsel appearing on behalf of the defendant No.2 that even otherwise in the present case the purchaser first initiated the proceedings against the plaintiff in the Indiana Court having jurisdiction as agreed between the parties and only thereafter the plaintiff instituted the suit in Indian Court. (5.2) It is further submitted by Shri D' Costa, learned Counsel appearing on behalf of the respondent No.2 herein - original defendant No.2 that in the present case the learned Commercial Court has rightly exercised the powers under Order 7 Rule 10 of the CPC and has rightly returned the plaint to the original plaintiff to present it before the Court having jurisdiction. It is submitted that even if the Court having jurisdiction as agreed between the parties may be a foreign Court, the Court in India can return the plaint to the plaintiff to present it before the Court having jurisdiction, may be a foreign Court, in exercise of powers under Order 7 Rule 10 of the CPC. It is submitted that even if the Court having jurisdiction as agreed between the parties may be a foreign Court, the Court in India can return the plaint to the plaintiff to present it before the Court having jurisdiction, may be a foreign Court, in exercise of powers under Order 7 Rule 10 of the CPC. It is submitted that there is no restriction under Order 7 Rule 10 of the CPC not to return the plaint to present it before the Court having jurisdiction even if the Court having jurisdiction is a foreign Court. In support of his above submissions, Shri D' Costa, learned Counsel appearing on behalf of the respondent No.2 herein - original defendant No.2 has heavily relied upon the following decisions. 1. Wollaque Ventilation and Conditioning Pvt. Ltd. vs. Sterling Tools Ltd. FAO No.301/2010 decided on 18.02.2011 2. U. Can Migrate Consultants Pvt. Ltd. vs. Canadian Connections Group Ltd. CRP No.95/2006 decided on 09.10.2007 3. Piramal Healthcare Limited (Formerly known as Nicholas Piramal India Ltd.) vs. DiaSorin S.p.A. (5.3) Now, so far as the reliance placed upon the decisions of the Delhi High Court as well as the Bombay High Court relied upon by Shri Thakore, learned Counsel appearing on behalf of the original plaintiff referred to herein above, Shri D' Costa, learned Counsel appearing on behalf of the respondent No.2 herein - original defendant No.2 has vehemently submitted that in the facts and circumstances of the case, none of the decisions relied upon on behalf of the plaintiff shall be applicable to the facts and circumstances of the case and all the decisions are distinguishable on facts. Making above submissions and relying upon above decisions, it is requested to dismiss the present Appeal From Order as the impugned order does not suffer from any infirmity/legal infirmity and the same is absolutely in consonance with wish of the parties. 6. Heard learned Counsel appearing on behalf of the respective parties at length. Making above submissions and relying upon above decisions, it is requested to dismiss the present Appeal From Order as the impugned order does not suffer from any infirmity/legal infirmity and the same is absolutely in consonance with wish of the parties. 6. Heard learned Counsel appearing on behalf of the respective parties at length. At the outset it is required to be noted that by impugned order the learned Commercial Court has partly allowed the application Exh.23 and relying upon and/or considering the exclusive jurisdiction clause mentioned in the purchase order by which as per the said clause, in case of any dispute, only the Indiana Court would have jurisdiction, the learned Commercial Court in exercise of powers under Order 7 Rule 10 of the CPC has returned the plaint to the plaintiff to present it before the appropriate Court having jurisdiction. (6.1) It is the case on behalf of the appellant herein - original plaintiff that as in the invoices which are subsequent to the purchase order, it is mentioned that subject to the jurisdiction of Pardi (India) Court and even otherwise considering section 20 of the CPC and even the relevant averments in the plaint more particularly considering the averments in paras 8 and 9, the Court at Pardi and now the Commercial Court, Vadodara also can be said to have jurisdiction and therefore, the learned Commercial Court is not justified in returning the plaint to the plaintiff. As recorded herein above, it is the case on behalf of the plaintiff that as the purchase order cannot be said to be the concluded contract and it can be said to be an offer and what is agreed in the invoice and what is agreed between the parties can be said to be as mentioned in the invoices which can be said to be a concluded contract, what is stated in the invoices shall prevail. It is also the case on behalf of the plaintiff that when the invoices were sent to the purchaser with the aforesaid clause of jurisdiction of Pardi (India) Court, the purchaser ought to have raised the objection and ought not to have accepted the goods. However, considering the relevant clause in the purchase order titled "contract", the aforesaid has no substance. However, considering the relevant clause in the purchase order titled "contract", the aforesaid has no substance. The relevant clauses of the purchase order read as under: "Contract: This form when properly signed is the only form that will be recognized by the purchaser as authority for charging goods or services to its account and it is understood and agreed that there is no oral understanding or agreement between purchaser and seller other than the condition stated in this order, or any subsequent change notices. This form supersedes all previous communications and negotiations and constitutes the entire agreement between the parties. No qualifying terms stated by the seller in accepting or acknowledging this order shall be binding upon the purchaser unless accepted in writing by the purchaser. The seller guarantees that the merchandise furnished hereunder will not infringe any valid patent or trade mark. The sellers at it's own expense must defend any and all actions, suits or claims alleging such infringement and will defend, indemnify and save harmless the purchaser, its customers and for those that it may account such infringement and defend, indemnify and save harmless the purchaser, its customers and those for whom it may account as agent in the purchase of the said merchandise, as to both damages and costs in case of any such infringement or alleged infringement. Seller shall be responsible for testing product using Good Laboratory Practices (GI Ps) and acceptable methodology as determined by industry standards and for maintaining commercially acceptable control standards for all manufacturing, packaging and storage related to the product it delivers to the purchaser. Unless purchaser is at fault, including failure to take reasonably prudent steps or other steps reasonably suggested by seller to protect the delivered product, seller shall be responsible for and compensate purchaser for any and all direct and consequential costs and any expenses incurred including attorney fees for any recall, and when necessary, for replacement of product for failing to meet commercially acceptable standards. Seller warrants to purchase that it complies with all US FDA regulations in its manufacturing, packaging and delivery of product to purchase. Seller warrants to purchase that it complies with all US FDA regulations in its manufacturing, packaging and delivery of product to purchase. Seller guarantees that each shipment or other delivery of product to purchaser which was manufactured and packaged by Federal Food, Drugs and Cosmetic Act (the Act) and will not be an article which may not, under the provisions of Section 404, 505 and 512 of the Act, be introduced into interests commerce. Seller shall furnish copies of all relevant materials pertaining to any item listed above including but not limited to, documentation to establish current good manufacturing practice (eGMP) compliance, certificate of analysis, Material Safety Data Sheet (MSDS) methods and method validation studies for. Seller further warrant that the product will provide potencies specified for a period of not less than stated in seller's original certificate of analysis, Seller agrees to promptly notify purchaser of any problem, anomaly defect or condition which would reasonably cause purchaser concern relative to stability, reliability form, fit, function or quality of the product. Seller warrants that the Product shall be free from defects in material and workmenship for the reasonable self life of the product. Acceptance: It is understood and agreed that any work done or delivery made in accordance with this order constitutes an acceptance of the foregoing conditions. This sale is entered into and performed in the State of Indiana and shall be construed and interpreted in accordance with the laws of the State of Indiana. Any dispute arising under this sale or transaction shall be litigated exclusively in Indiana Polis, Indiana and the parties hereby submit to jurisdiction in Indiana and waive any rights to challenge venue based on forum non-conveniens or motion to transfer." Thus, considering the aforesaid clauses it is apparent that it was understood and agreed that any work done or delivery made in accordance with the said purchase order constitutes acceptance of the aforesaid conditions, the sale is entered into and performed in the State of Indiana and shall be construed and interpreted in accordance with the laws of the State of Indiana; any dispute arising under this sale or transaction shall be litigated exclusively in Indiana Polis, Indiana and the parties hereby submit to jurisdiction in Indiana and waive any rights to challenge venue based on forum nonconveniens or motion to transfer. The aforesaid clause also specifically provides that there is no oral understanding or agreement between the purchaser and seller other than the conditions stated in the purchase order, or any subsequent change notices. It also further provides that no qualifying terms stated by the seller in accepting or acknowledging the order shall be binding upon purchaser unless accepted in writing by the purchaser. Nothing is on record and even it is not the case on behalf of the plaintiff that the purchaser agreed to any condition and/or clause more particularly the clause in the invoice issued by the plaintiff that "subject to Pardi (India) jurisdiction", in writing by the purchaser. Nothing is on record that infact a specific attention was drawn to the purchaser the clause in the invoice viz. "subject to Pardi (India) jurisdiction", which is just contrary to what is stated in the purchase order, which as such were agreed between the parties. Considering the aforesaid specific clauses in the purchase order, the plaintiff is bound by what is stated in the purchase order more particularly with respect to the exclusive jurisdiction clause of Indiana Court. Under the circumstances, submission on behalf of the plaintiff that what is stated in the invoice which can be said to be the concluded contract shall prevail and not what was stated in the purchase order cannot be accepted. As observed herein above and even considering the clause in the purchase order, unless anything contrary to what was stated in the purchase order is accepted to be changed by the purchaser in writing, what was provided in the purchase order shall be binding between the parties. As observed herein above in the purchase order itself it is specifically mentioned that no qualifying terms stated by the seller in accepting or acknowledging the order shall be binding upon the purchaser unless accepted by the seller in writing. Therefore, clauses mentioned in the invoices more particularly clause "subject to Pardi (India) jurisdiction" shall not be binding to the purchaser as nothing is on record and even it is not the case on behalf of the plaintiff that the purchaser has accepted the same in writing. Under the circumstances, considering the relevant clauses of the purchase order referred to herein above, the Indiana Court alone would have exclusive jurisdiction as agreed between the parties. Under the circumstances, considering the relevant clauses of the purchase order referred to herein above, the Indiana Court alone would have exclusive jurisdiction as agreed between the parties. Any other clause in the invoice shall not be binding to the purchaser as observed herein above. (6.2) At this stage it is required to be noted that in the present case the dispute between the parties and/or with respect to the subject goods is the subject matter before the Indiana Court. The suit has been first filed by the defendant No.2 in the Indiana Court with respect to the goods sold under the respective invoices and thereafter the plaintiff has instituted the present suit in the Court at Vapi, which is now transferred to Commercial Court, Vadodara. (6.3) Now, so far as the reliance placed upon the decision of the Delhi High Court in the case of M/s. Vansh Exports Inc. & Anr. relied upon by the learned Counsel appearing on behalf of the plaintiff is concerned, it is true that if it is found that there are disputed questions of jurisdiction, in that case the same cannot be decided at the time of deciding Order 7 Rule 11 application. However in the present case it cannot be said that there are disputed questions of fact with respect to the jurisdiction. The relevant clauses are admitted by the parties. The question is with respect to interpretation and applicability of the relevant clauses mentioned in the purchase order as well as the invoices. Under the circumstances, the said decision shall not be applicable to the facts of the case on hand. Similarly, the decision of the Delhi High Court in the case of Suresh Chand Purwar (Karta) shall not be applicable to the facts of the case on hand. (6.4) Now, so far as the reliance placed upon the decision of the Bombay High Court in the case of Skanska Cementation India Ltd. relied upon by Shri Thakore, learned Counsel appearing on behalf of the original plaintiff in support of his submission that what is stated in the subsequent invoice/work order shall be binding is concerned, on considering the facts in the said case, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. In the case before the Bombay High Court what was stated in the purchase order was specifically negotiated between the parties and the respondents did not accept the term of the purchase order and drew the attention of the company that the term of resolving the dispute (mentioned in the purchase order) was not acceptable, by sending the goods under the delivery challan. Therefore, on facts, the said decision shall not be applicable to the facts of the case on hand more particularly considering the specific clauses in the purchase order referred to and discussed herein above. (6.5) Now, so far as the reliance placed upon the decision of the Court of England in the case of Butler Machine Tool Co. Ltd. is concerned, on considering the terms and conditions of the contract as well as the purchase order, we are of the opinion that the said decision also shall not be applicable to the facts of the case on hand. It was the case of offer and acceptance and counter offer. In the said case seller offered to sell subject to terms and conditions which were to prevail over buyer's terms. Buyer offered to buy subject to own terms and conditions. However, thereafter seller acknowledged the receipt of buyer's order with a counter offer and thereafter the goods were accepted by the purchaser. Therefore and even otherwise considering the terms and conditions of the purchase order referred to herein above, the said decision shall not be applicable to the facts of the case on hand. (6.6) Now, so far as the submission on behalf of the plaintiff that in exercise of powers under Order 7 Rule 10 of the CPC, the learned Commercial Court could not have returned the plaint to the plaintiff to present it in the Court having jurisdiction - in the present case the Indiana Court is concerned, the aforesaid has no jurisdiction. It makes no difference whether the Court having jurisdiction as agreed between the parties is a foreign Court or in the country. Once it is found that as agreed between the parties only the Indiana Court would have exclusive jurisdiction, in that case other Courts would not have any jurisdiction and therefore, the Court is justified in returning the plaint to present it before the Court having jurisdiction as agreed between the parties. Once it is found that as agreed between the parties only the Indiana Court would have exclusive jurisdiction, in that case other Courts would not have any jurisdiction and therefore, the Court is justified in returning the plaint to present it before the Court having jurisdiction as agreed between the parties. As such that is the mandate as provided under Order 7 Rule 10 of the CPC. Under the circumstances, the learned Commercial Court has not committed any error and/or impugned order cannot be said to be contrary to the provisions of Order 7 Rule 10 of the CPC when the learned Commercial Court has returned the plaint to the plaintiff to present it before the Court having jurisdiction (in the present case as agreed between the parties viz. the Indiana Court). No interference of the impugned order is called for. 7. In view of the above and for the reasons stated above, present Appeal From Order fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs. CIVIL APPLICATION NO.1/2017 In view of dismissal of main Appeal From Order, Civil Application No.1/2017 also stands dismissed.