JUDGMENT
Pradeep Nandrajog, J.
1. Heard.
2. Appellant is aggrieved by the order dated 28.4.2006 returning the plaint holding that Courts at Delhi had no territorial jurisdiction to entertain the plaint.
3. Reason for holding that Courts at Delhi have no territorial jurisdiction is that the works executed in respect whereof payment is claimed in the plaint were at Jhansi. The tenders were submitted at Jhansi. The acceptance of the tenders was at Jhansi. That the works were executed at Jhansi.
4. The impugned order has not dealt with the pleadings in the plaint with respect whereto territorial jurisdiction was pleaded, is the grievance urged in the instant appeal.
5. In the plaint, in para 9 a specific averment has been made as under:
Moreover the part payments in respect of the afore-said works executed by the plaintiff under the various work orders, have been made by the defendant to the plaintiff vide various bank drafts payable at Delhi and part of cause of action has arisen in Delhi.
6. The impugned order has not discussed the issue whether payment is a part of cause of action and whether place where payment has to be received or was being received would therefore be the place where part of cause of action has accrued.
7. I need not note a large number of authorities which hold that payment for work done is a part of cause of action and place where payments were being made or were required to be made would be relevant to determine territorial jurisdiction.
8. One such authority on the point is reported as K.S. Wahi v. Ganga Exports and Ors.
9. Learned counsel for the respondent cites South East Asia Shipping Co. v. Navbharat Enterprises; Aligarh Muslim University v. Vinay Engineering Enterprises and ONGC v. Utpal K. Basu.
10. The decision in South East Asia Shipping Co.’s case dealt with the issue whether place where bank guarantee is issued would be a place where part of cause of action arises. It has been held that issuance of a bank guarantee under a contract is not part of cause of action and hence territorial jurisdiction cannot be determined with reference to the place where bank guarantee was issued.
11. The decision is clearly distinguishable.
12. In the decision in Aligarh Muslim University’s case Hon’ble Supreme Court noted that Calcutta High Court had assumed jurisdiction with respect to the residence of the plaintiff. It was found to be faulty.
13. The decision does not deal with the issue which has arisen for consideration in the instant appeal, namely that, whether place where payment was made would confer territorial jurisdiction.
14. Decision in ONGC’s case pertained to the exercise of jurisdiction in a writ proceedings and on facts it was held that no part of cause of action arose within the territorial jurisdiction of the Calcutta High Court. The decision holds that a dispute on facts must form an integral part of the cause of action and some thing which is incidental would not be a part of cause of action.
15. The decision did not deal with the issue whether place where payment was being tendered would be the place where part of cause of action would accrue to a party.
16. Having noted the averment in the plaint pertaining to place of payment and the decision in K.S. Wahi’s case the appeal has to be allowed.
17. Ordered accordingly.
18. The appeal is allowed. Impugned order dated 28.4.2006 is quashed.
19. Learned Trial Judge is directed to proceed with the plaint in accordance with law.
20. No costs.
21. Parties are directed to appear before the learned Trial Judge on 25.2.2008.