Demech Chemical Products Pvt. … vs Kcs Private Limited on 15 September, 2003

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85
Orissa High Court
Demech Chemical Products Pvt. … vs Kcs Private Limited on 15 September, 2003
Equivalent citations: 2004 I OLR 9
Author: P Tripathy
Bench: P Tripathy


ORDER

P.K. Tripathy, J.

1. Heard.

2. This Civil Revision Petition stands disposed of at the stage of admission.

3. Defendant in Money Suit No. 58 of 2001 is the petitioner and plaintiff is opposite party in this Civil Revision Petition. Plaintiff filed the suit claiming for refund of certain amount accruing in its favour, said to be out of an agreement/contract relating to supply and sale of materials. Defendant, inter alia, denied to existence of any such agreement and claimed in their written statement that if at all an invoice constitutes an agreement, then the conditions stipulated therein confers jurisdiction in the Court at Pune for any dispute arising between the parties on that transaction and therefore, jurisdiction of the Civil Court at Rourkela is ousted. On 26.4.2003 application filed under Order 7, Rule 10 of the Code of Civil Procedure (in short ‘the Code’) by the defendant for return of the plaint to the plaintiff was rejected by learned Ad-hoc Addl. District Judge (Fast Track Court), Rourkela, inter alia, on the ground that a copy of that document/agreement was not produced for perusal of the Court. He also referred to and relied on the case of Ananta Enterprisers v. Hoechst Pharmaceutical Ltd. and Ors., A.I.R. 1987 Orissa 34, for deriving a legal conclusion that conferring jurisdiction in a Court under a contract does not automatically exclude the jurisdiction of other competent Court if such a suit is maintainable in the later Court.

4. Parties, for the following reasons, do not want to go into the question of maintainability of the Civil Revision and therefore, that aspect is not dealt with.

5. Mr. Goutam Misra. learned counsel for the petitioner states that there was no necessity for filing of a copy of the agreement in as much as the defendant has not pleaded about existence of any agreement and according to the contention of the defendant the stipulation in the invoice contains the terms of the agreement to confer jurisdiction in the Court at Pune. Therefore, the Fast Track Court could not properly understand and appreciate the contention of the petitioner. He further argues that the ratio propounded by the Apex Court in the case of M/s. Shriram City Union Finance Corporation Ltd. v. Rama Mishra*, 94 (2002) C.L.T. 409 (SC) is clear enough to oust the jurisdiction of the Court at Rourkela so far as the present dispute is concerned and the position of law, as it stands, was failed to be appreciated by the Court below in that respect.

6. Mr. G. Rath, learned counsel for the plaintiff/opposite party, on the other hand, states that when the impugned order has been passed without perusal of the relevant document on the ground of its non-production and when the position of law is well settled, so far as this Court is concerned, that conferment of jurisdiction by agreement on one Court does not automatically oust jurisdiction of another competent Court, therefore, there is nothing to interfere with the impugned order. He, however, argues that ratio in the case of M/s. Shriram (supra) was not considered by the Court below and for that a rehearing is necessary.

7. Upon consideration of the argument advanced by the parties, this Court finds that learned Addl.District Judge (Fast Track Court) has not perused and considered the relevant document, as stated by the petitioner, on a wrong premises that such document is not available on record. Under such circumstance, this Court is not inclined to enter into the factual controversy while in seisin of the matter under Section 115 of the Code and directs the Court below to afresh consider the application under Order 7, Rule 10 of the Code filed by the petitioner and to dispose of the same in accordance with law. If the relevant document is already on record, it will be sufficient for the petitioner to file an affidavit indicating that fact. However, on verification of record if the petitioner finds that such document is not on record, then he may file a copy of such document after serving copy thereof on the plaintiff. The Court below shall consider such document, if an admitted one, while considering the contentions of both the parties on the application under Order 7, Rule 10 of the Code. The decisions relied upon by the parties may also be carefully perused by the Court below while disposing of the application under Order 7, Rule 10. It is needless to say that lower Court shall afford opportunity of hearing to both the parties. He shall bear in mind that this Court has expressed no opinion on the merit of the case and that shall be considered by him strictly in accordance with law. Learned counsel for the petitioner undertakes to produce a certified copy of this order in the Court below within two weeks from today. Upon production of such certified copy it will be proper for the trial Court to hear and dispose of that application, as far as practicable, within a period of two months from that date.

The Civil Revision Petition is accordingly allowed by setting aside the impugned order and remanding the mater to the Court below for disposal afresh.

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