The Kolkata Municipal Corporation & Anr vs. M/S Rana Charis & Ors

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$~101
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: April 25, 2022
Decided on: July 04, 2022
+ RFA (OS) 8/2019 & CM No. 3306/2019
THE KOLKATA MUNICIPAL CORPORATION & ANR
..... Appellants
Through: Mr. Ashim Kumar Banerjee,
Senior Advocate with Mr.Sujoy
& Ms. Anisha Upadhyay,
Advocates.
Vs.
M/S RANA CHARIS & ORS ..... Respondents
Through: Mr. Dharmendra Sharma,
Advocate for R-1.
%

CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN

J U D G M E N T
SUDHIR KUMAR JAIN, J
CM No. 3306/2019 in RFA No. 8 /2019 (For condonation of delay)
1. The appellants have filed the present appeal challenging the
judgment and decree dated 17.09.2015 passed by the learned Single
Judge of this court in Civil Suit No. 1090/2013 titled as M/s Rana
Chairs V Director General (Town Planning), Kolkata Municipal
Corporation & others after delay of 1150 days.

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2. The appellants filed the present application under Section 5 of
Limitation Act, 1963 for condonation of delay of 1150 days in filing
present appeal. The appellants pleaded that appellant no. 1 did not
participate in the proceedings pertaining to suit no. 1090/2013 under
genuine belief that the case would be transferred to the High Court of
Calcutta due to lack of territorial jurisdiction in court at Delhi. The
appellants came to know about passing of the judgment and decree
dated 17.05.2015 on 08.03.2017 in execution petition no 5 of 2017
which was preferred by the respondent no. 1 before High Court of
Calcutta when the appellants received notice of said execution
proceedings. The appellants filed an application bearing IA No.
4956/2016 under Order IX Rule 13 CPC for setting aside the ex-parte
judgment and decree dated 17.09.2015 which was dismissed by the
learned Single Judge vide judgment dated 05.10.2018. The appellants
also decided to prefer the Regular First Appeal (RFA) which was
accordingly prepared by the counsel for the appellants and draft of
RFA was sent to the concerned department for vetting and signing of
the affidavits in the month of November, 2018. The appeal was filed
in December, 2018. The delay on part of the appellants in filing
present appeal was owing to genuine and bona fide belief that the suit
would be transferred to the High Court of Calcutta due to lack of
territorial jurisdiction in court at Delhi. The delay of 1150 days was
neither intentional nor deliberate. It was prayed that delay of 1150
days in filing present appeal be condoned.
3. The respondent no. 1 submitted that the appellants did not show
sufficient cause for condonation of delay of 1150 days in filing present

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appeal but took flimsy ground of wrong legal advice for condonation
of delay which is lacking material particulars. The application for
condonation of delay is without any merit and be dismissed. The
respondent no. 1 relied on Popat Bahiri Govardhane & Others V
Special Land Acquisition Officer & Another, 2013 (10) SCC 765 ;
Office of the Chief Post Master General & Others V Living
Media Ltd & Another, AIR 2012 SC 1506 and The State of
Madhya Pradesh & Others V Bherulal, 2020 (10) SCC 654.

4. The Law of limitation is based on equitable principle that a
litigant should be prompt in claiming the relief in legal
proceedings and is required to bury acts of the past which become
stale due to lapse of time and have not been agitated within time.
Section 3 of the Act, provides that every suit, appeal and application if
filed or instituted after the prescribed period is liable to be dismissed
although limitation has not been set up as a defence. Section 5 of the
Act deals with the extension of prescribed period of limitation. The
Court with discretionary jurisdiction can condone the delay and
proceed with the case if concerned party furnishes sufficient cause for
delay in institution of appeal and application. Section 5 of the
Limitation Act reads as under:-

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is not defined and is required to be interpreted to advance cause of
justice. The Supreme Court in Ramlal, Motilal and Chhotelal V
Rewa Coalfields Ltd, 1962 SCR (3) 762 connected Section 5 of the
Act with doctrine of substantial justice and observed as under:-

6. The Supreme Court in Collector Land Acquisition V Mst.
Katiji & others, 1987 SCR (2) 387 observed that the legislature has
conferred the power to condone delay by enacting Section 5 of the
Limitation Act in order to enable the Courts to do substantial justice to
parties by disposing of matters on merits. The expression “sufficient
cause” is adequately elastic to enable the Courts to apply the law in a

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meaningful manner which sub-serves the ends of justice which is
being the life-purpose for the existence of the institution of Courts.
The Supreme Court laid down certain principles which need to be
followed while employing doctrine of condonation of delay which are
as under:-
1. Ordinarily a litigant does not stand to benefit by lodging an
appeal late.
2. Refusing to condone delay can result in a meritorious
matter being thrown out at the very threshold and cause of
justice being defeated. As against this when delay is condoned
the highest that can happen is that a cause would be decided
on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a
pedantic approach should be made. Why not every hour's
delay, every second's delay? The doctrine must be applied in a
rational common sense pragmatic manner.
4. When substantial justice and technical considerations are
pitted against each other, cause of substantial justice deserves
to be preferred for the other side cannot claim to have vested
right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or on
account of mala fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on
account of its power to legalize injustice on technical grounds
but because it is capable of removing injustice and is expected
to do so.
7. It must be noted that no party can claim condonation of delay
even if sufficient cause has been made out in the facts of a given case.
It was held in Ramlal, Motilal and Chhotelal V Rewa Coalfields
Ltd. as under:-

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It is, however, necessary to emphasize that even after
sufficient cause has been shown a party is not entitled to the
condonation of delay in question as a matter of right. The
proof of a sufficient cause is a condition precedent for the
exercise of the discretionary jurisdiction vested in the court by
S. 5. If sufficient cause is not proved nothing further has to be
done; the application for condoning delay has to be dismissed
on that ground alone. If sufficient cause is shown then the
Court has to enquire whether in its discretion it should
condone the delay. This aspect of the matter naturally
introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall
for consideration; but the scope of the enquiry while
exercising the discretionary power after sufficient cause is
shown would naturally be limited only to such facts as the
Court may regard as relevant. It cannot justify an enquiry as
to why the party was sitting idle during all the time available
to it.
8. The Supreme Court in Ramlal, Motilal and Chhotelal V Rewa
Coalfields Ltd. also considered condonation in relation to delay
caused in filing an appeal by the State and observed as under:-
Making a justice-oriented approach from this perspective,
there was sufficient cause for condoning the delay in the
institution of the appeal. The fact that it was the 'State'
which was seeking condonation and not a private party was
altogether irrelevant. The doctrine of equality before law
demands that all litigants, including the State as a litigant,
are accorded the same treatment and the law is
administered in an even handed manner. There is no
warrant for according a step motherly treatment when the
'State' is the applicant praying for condonation of delay. In
fact experience shows that on account of an impersonal
machinery (no one in charge of the matter is directly hit or
hurt by the judgment sought to be subjected to appeal) and
the inherited bureaucratic methodology imbued with the
note-making, file pushing, and passing-on-the-buck ethos,

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delay on its part is less difficult to understand though more
difficult to approve. In any event, the State which represents
the collective cause of the community does not deserve a
litigant-non-grata status. The Courts therefore have to be
informed with the spirit and philosophy of the provision in
the course of the interpretation of the expression "sufficient
cause".
9. The Supreme Court after relying on Postmaster General V
Living Media India Ltd., (2012) 3 SCC 563 in Government of
Maharashtra (Water Resources Department) V M/S Borse
Brothers Engineers & Contractors Pvt. Ltd., 2021 SCC OnLine SC
233 held that merely because the government is involved, a different
yardstick for condonation of delay cannot be laid down. Similar view
was again expressed in State of M.P. V Chaitram Maywade, (2020)
10 SCC 667.
10. The appellants have filed the present appeal after delay of 1150
days. The sufficient cause pleaded by the appellants for condonation
of delay is that the appellants due to ill legal advice were under
genuine belief of transfer of the case to the High Court of Calcutta
due to lack of territorial jurisdiction in court at Delhi. The said plea of
the appellants is without any basis and the appellant being a statutory
body was required to obtain appropriate legal advice from its Law
Department or panel advocates regarding legal aspects. The plea of ill
legal advice is based on conjectures and surmises and is raised without
disclosing material particulars. The appellant was required to be
vigilant in obtaining proper legal advice in relation to present suit. The
appellant should or ought to have taken possible defence in its favour

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before the learned Single Judge by participating in the trial of Suit
bearing No. 1090/2013. This court in Riasat Ali V Smt. Sayeeda
Begum and another, 2001 IIAD Delhi 501 relied upon by the
respondent no. 1, regarding plea of illegal advice for condonation of
delay observed as under:-

11. The plea of the appellants that they came to know about passing
of the judgment and decree dated 17.05.2015 after receipt of notice on
08.03.2017 in execution petition no. 5 of 2017 filed by the respondent
no. 1 before High Court of Calcutta is contrary to plea taken by the
appellants in application bearing IA no. 4956 of 2016 filed under
Order IX Rule 13 CPC wherein the appellants stated that summons
were served on defendants on 11.12.2013. Even it is presumed that the
appellants came to know about pendency of suit on 08.03.2017 even
then the appeal was preferred in December, 2018. The plea of the
appellants that the appellants decided to prefer the present Regular

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First Appeal (RFA) which was accordingly prepared and draft was
sent to the concerned department for vetting and signing of the
affidavits in the month of November, 2018 again reflects negligence,
ignorance, inaction and slackness on the part of the appellants in filing
present appeal. The delay on part of the appellants in filing present
appeal was not genuine, bona fide and beyond control of the
appellants.
12. After considering all facts, we are of opinion that the appellants
have failed to disclose sufficient cause for condonation of delay of
1150 days in filing the present appeal. Hence, application is dismissed.
RFA (OS) 8/2019
1. The appellants filed the present appeal under Section 96 read
with Order 41 of the Code of Civil Procedure, 1908 (hereinafter
referred to as ―CPC‖ ) against the judgment and decree 17.09.2015
passed by the learned Single Judge in Civil Suit No. 1090/2013 and
prayed as under:-
I. Call for the records of Civil Suit No. 1090/2013 and allow
the appeal by setting aside the judgment and decree dated
17.09.2015 passed by the Ld. Single Judge in the High Court
of Delhi at New Delhi,
II. May pass such other and further order(s) which this
Hon'ble Court may deem fit and proper.

2. The factual background, stated in Civil Suit bearing No.
1090/2013 titled as M/s Rana Chairs V Director General (Town
Planning) & others filed by the respondent no. 1/plaintiff (hereinafter
referred to as ―the respondent no. 1‖ ) against the respondent no.

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2/defendant no. 1/Director General (Town Planning)/, the defendant
no. 2/N. B. Basu, the defendant no. 3/P.K.Dass and the defendant no.
4/Sankar Gosh who were stated to be officers of the appellant no. 1, is
that the respondent no 1, a proprietorship firm and conducting
business of supplying high quality cinema-auditorium chairs
throughout India under name & style of M/s Rana Chairs, in
pursuance of advertisement Mark A issued on behalf of the appellant
no. 1 regarding supply of 750 chairs to be fitted and fixed at Sarat
Sadan Hall at Behela i.e. designated site, being lowest bidder was
invited vide letter dated 05.12.2009 Ex. PW1/B to execute agreements
for issuance of work order. Accordingly, two agreements dated
10.02.2010 Mark C & D were entered into and Work Orders dated
th
10 February, 2010 bearing no. CMA & TP/22/09-10 for 231 chairs
@ 4401/chair amounting to Rs.10,16,631/- Mark E and bearing no.
CMA & TP/23/09-10 for 519 chairs @ 4401/chair amounting to
Rs.22,84,119/- Mark F (total amounting to Rs.33,00,750/-) were
issued in favor of the proprietor of the respondent no. 1. The
respondent no. 1 in pursuance of Way Bill Form-50 bearing no.
8096658 and Way Bill Form-50 bearing no. 8096657 both dated
16.04.2010 received on behalf of the appellant no. 1 sent two
Performa Invoices Mark G1 and G2. Accordingly first consignment
of 519 chairs vide Invoice No. 56 dated 22.02.2010 for Rs.
22,84,119/- Mark K and second consignment of 231 chair vide
Invoice no. 55 dated 22.02.2010 for Rs.10,16,631/- Mark J were
delivered to the respondent no. 2 at designated site vide delivery
receipts Ex. PW1/H and Ex. PW1/I . The respondent no. 1 after

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delivery contacted the concerned officers of the appellant no. 1 for
fitting and fixing the chairs but the designated site was not available.
The respondent no. 1 vide letters dated 16.06.2010 Mark M and
27.10.2010 Mark N asked concerned officers of the appellant no. 1
for release of payment but no officer of the appellant no. 1 responded
to these letters. The respondent no. 1 met Chief Municipal Engineer
(P&D) who asked the respondent no. 1 to install 750 chairs to another
site i.e. Uttam Manch, which was stated to be busy till the end of
November, 2011 and the respondent no. 1 also received a letter
bearing no. A&D/L/2444/10-11 dated 23.02.2011 Mark O to the said
effect. The respondent no. 1 sent another letter dated 25.07.2011 Ex.
PW1/P to the officers of the appellant no. 1. The respondent no. 1
came to know about fire incident occurred at the designated site in the
month of October, 2011. The respondent no. 1 sent letter dated
14.11.2011 Ex. PW1/Q1 to the concerned officers of the appellant no.
1 for release of payment but did not receive any response. The
appellant no. 1 sent a letter dated 22.11.2011 Ex.PW1/R for joint
inspection to assess the loss caused by fire which was conducted on
29.11.2011 and joint inspection evaluation of damages report dated
05.12.2011 Ex. PW1/S was prepared and delivered to officers of the
appellant no. 1. The respondent no. 1 received a letter bearing no.
P&D/L/266/11-12 dated 14.12.2011 Ex.PW1/T from officers of the
appellant no. 1 whereby the respondent no. 1 was asked to submit
„received copy‟ regarding delivery of 750 chairs and accordingly
„received copy‟ signed and stamped by Dipankar Sinha, Director
General, Town Planning was submitted by the respondent no. 1 along

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with reply dated 07.01.2012 Ex. PW1/U . However, the appellant no. 1
vide letter dated 24.01.2012 Ex.PW1/V informed that documents
submitted by the respondent no. 1 along with reply dated 07.01.2012
Ex. PW1/U did not relate to supply of 750 chairs. The respondent no.
1 sent a legal notice dated 05.09.2012 Ex. PW1/W (along with postal
receipts) to the officers of the appellant no. 1 but these officers neither
replied legal notice dated 05.09.2012 nor made payment of
Rs.33,00,750/- along with interest @ 18% per annum. The respondent
no. 1 also sent another letter dated 17.04,2013 Ex. PW1/X
subsequently. The respondent no. 1 being aggrieved filed a suit for
recovery of Rs.50,83,155/- which included principle amount of
Rs.33,00,750/- and interest @ 18% since 26.05.2010 till filing of
present suit along with pendent lite and future interest @ 18% per
annum. The respondent no. 1 made following prayers:-
In view, of the submissions made above and in the light of
facts and circumstances of the case, it is most respectfully and
humbly prayed that in interest of justice this Hon'ble Court
may be pleased to:
(a) Pass a decree of Rs 50,83,155/- (Fifty lakhs, Eighty –three
thousands, one hundred fifty five only) along with pendente-
lite and future interest @18% p.a. in favour of the Plaintiff
and against the Defendants.
(b) Costs of the suit may be awarded to the Plaintiff.
Any other orders as this Hon‘ble Court may deem fit and
proper in the facts and circumstances of the present case may
also be passed.
It is prayed accordingly.
3. The respondent no. 1 vide statement dated 28.04.2014 made
before the Joint Registrar preferred to delete the defendants no. 3 and
4 from array of the parties. The defendants no. 1 & 2 were ordered to

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be proceeded ex-parte vide order dated 27.05.2014. The respondent
no. 1 led ex-parte evidence and examined its proprietor Anil Kumar
Sachdeva as PW1 who tendered affidavit Ex. PW1/1 in evidence
wherein deposed in consonance with averments made in the plaint and
placed reliance on documents as mentioned hereinabove. The suit
titled as M/S Rana Chairs V Director General (Town Planning)
Kolkatta Municipal Corporation & others bearing no. CS (OS)
1090/2013 was decreed vide judgment and decree dated 17.09.2015
passed by learned Single Judge and held as under:-
This Court is of the view that there is nothing on record which
could suggest that the prayers sought in the plaint could not be
granted. The acknowledgement of the chairs by the defendants
is not rebutted; their request for installation of the chairs at
Sarat Sadan, Behata, is acknowledgement of the acceptable
and good quality of the chairs. The letter of 17.04.20I3 is
evidently an afterthought and an endeavour, by the
defendants to escape the acknowledged liability to pay the
monies payable to the plaintiffs as a consequence of the Supply
of the chairs as per the bills raised. Accordingly, the suit is
decreed in terms of prayers (a) and (b) of the plaint. A cost of
Rs. 1.00 lac also is imposed upon the defendants towards this
litigation. Decree sheet be drawn up accordingly.
4. The respondent no. 1 filed a contempt petition bearing CC 54 of
2017 in the High Court of Calcutta. The perusal of said petition
reflects that decree passed in pursuance of judgment dated 17.09.2015
was transferred to High Court of Calcutta for execution. The
respondent no. 1 filed an execution petition EC no 5 of 2017 with EC
no 55 of 2017 titled as M/s Rana Chairs V Director General (Town
Planning), KMC & another before the High Court of Calcutta. The
High Court of Calcutta vide order dated 11.04.2017 directed the

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appellant no. 1 to deposit entire amount in terms of decree dated
17.09.2015 with the Registrar, High Court, Original Side within three
weeks who was further directed to invest said amount in a suitable
fixed deposit to be renewed till further orders. The appellant no. 1 did
not comply with order dated 11.04.2017 and due to this contempt
petition bearing CC 54 of 2017 was filed in the High Court of
Calcutta. The learned Single Judge of the High Court of Calcutta vide
order dated 28.11. 2018 directed to attach bank account of the Kolkata
Municipal Corporation for a sum of Rs. 52 lakhs.
5. An application bearing IA no. 4956 of 2016 under Order IX
Rule 13 CPC was filed on behalf of the appellant no. 1 to set aside ex-
parte judgment and decree 17.09.2015 on grounds that summons were
served on defendants on 11.12.2013 and thereafter the defendant no. 1
contacted concerned department including Law Department; Kolkata
Municipal Corporation had no branch in Delhi; the local advocate
misguided the appellant no. 1 by giving assurance about dismissal of
suit due to lack of territorial jurisdiction in Court at Delhi and defaults
on part of the respondent no. 1 in terms of agreement besides other
grounds. The application was contested by the respondent no. 1.
6. The learned Single Judge vide judgment dated 05.10.2018 had
dismissed application bearing IA no. 4956/2016 filed on behalf of the
appellant no. 1 to set aside decree 17.09.2015 under Order IX Rule 13
CPC and held as under:-

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9. Keeping in view the above, this Court is of the view that the
applicants/defendants have failed to show 'sufficient cause' in
th
the present case to set aside the ex-parte decree dated 17
September, 2015. The explanation offered in the present
application by the applicants/defendants is meritless. In the
opinion of this Court, the applicants/defendants in the present
case have been negligent and they could not have presumed
that the plaintiff‘s suit would be dismissed by this Court on
account of lack of territorial jurisdiction. In the opinion of this
Court, if the excuse of the applicants/defendants for
restoration is accepted, then no party will ever appear in the
Court after receipt of summons.
10. Consequently, the present applications are dismissed on
the ground of limitation as well as being without any merit.
The appellant no. 1 preferred a First Appeal registered as FAO (OS)
bearing no. 185/2018 dated 01.11.2018 which is stated to be pending
for adjudication.
7. The appellants filed an appeal bearing RFA(OS) 8/2019 titled as
The Kolkata Municipal Corporation & another V M/s Rana
Chairs & others to impugn judgment and decree dated 17.09.2015
which was disposed of vide judgment dated 14.03.2019 passed by the
Division Bench of this Court with consent of the parties by directing
as under:-
The parties have agreed as under:

(i) The impugned order dated 17.09.2015 is set aside.
(ii) The plaint shall be returned to enable the
respondent/plaintiff to file the same in the appropriate court
of jurisdiction.
(iii) The Bank account which has been attached in the sum of
Rs.52,15,317/- will be converted into a Fixed Deposit
Receipt(FDR) in the name of the respondent No. 1 and

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deposited with the Registrar General of the Calcutta High
Court. The FDR will be made within four weeks.
(iv) In case the plaintiff/respondent No. 1 succeeds, the amount
accrued together with interest shall be released in favour of
the respondent No. 1 together with whatever claim he may
have further as per the decree, if so passed.
8. The appellant no. 1 filed an application GA No. 1073 of 2019
before High Court at Calcutta for modification of order passed by the
Division Bench of this court in RFA (OS) 8/2019 which was
dismissed vide order dated 11.06.2019 by observing that High Court at
Calcutta does not have the jurisdiction to modify the order passed by
the Delhi High Court.
9. The respondent no. 1 filed an application CM APPL.
32151/2019 under section 151 CPC for recalling of the order dated
14.03.2019 on the ground that the appellant no.1 was granted a period
of four weeks reckoned from 14.03.2019 for preparing FDR of
Rs.52,15,317/- from its attached bank account and was required to
deposit with the Registrar General of the High Court of Calcutta but
the appellant no. 1 has failed to comply these directions till date. The
Division Bench of this court vide order dated 22.08.2019 in view of
the facts and circumstances and the lackadaisical conduct of the
appellant no. 1 and also failure to abide by the terms and conditions
of the settlement recorded in the order dated 14.03.2019 recalled the
consent order dated 14.03.2019.
10. The appellants challenged ex-parte judgment and decree dated
17.09.2015 by filing present appeal on the grounds that the non-

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appearance of the appellant no. 1 was neither deliberate nor willful.
The appellant no.1 did not have any office in Delhi. The judgment and
decree dated 17.09.2015 is a nullity in law and cannot be cured by
consent or waiver by the party. The appellant no. 1 has case on merit
and on facts with likelihood of succeeding in the case. The law laid
down by the Supreme Court in the Harshad Chiman Lai Modi V
DLF Universal Ltd. & another, 2005 (7) SCC 791 was not properly
appreciated. The negligence on the part of the appellant was bona fide .
The relationship between the appellant no. 1 and the respondent no. 1
was governed by legal and valid agreements which were signed and
entered at Kolkata. The appellant no. 1 was misguided by legal advice
with assurance that the suit would not be proceeded in Court at Delhi
due to lack of territorial jurisdiction. The respondent no. 1 with an
ulterior view deliberately preferred the suit before Court at Delhi and
was aware that the subject matter of the dispute was within the
territorial jurisdiction of Courts in Kolkata. To burden the appellant
no. 1 with such a huge liability would be an additional burden on the
public exchequer. The appellant no. 1 was under genuine belief that
the suit would be transferred to the courts in Kolkata. The judgment
and decree dated 17.09.2015 is perverse and suffers from patent
illegality thus liable to be set aside being contrary to law. The suit was
suffering from patent illegality like non-joinder of necessary party i.e.
Kolkata Municipal Corporation and its Chief Executive i.e. Municipal
Commissioner/ the appellant no. 2; notice under section 586 of
Kolkata Municipal Corporation Act, 1980 was not served before

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institution of suit and was barred by limitation. It was prayed that
judgment and decree dated 17.09.2015 be set aside.
11. The learned Senior Counsel appearing on behalf of the
appellants in oral arguments and in written submissions, besides
mentioning factual background submitted that the appellant no. 1 was
not a party to the suit and notice under Section 586 of the Kolkata
Municipal Corporation Act, 1980 was not served on the appellant no.
1 before institution of the suit which is a mandatory requirement. The
appellant no. 1 could not complete process of making of FDR in terms
of judgment dated 14.05.2019 passed by the Division Bench of this
court due to non-cooperation of the respondent no. 1. The suit is not
maintainable as Court at Delhi did not have territorial jurisdiction to
entertain the present suit and entire cause of action has been accrued at
Kolkata as the tender was floated by the appellant no. 1 at Kolkata and
work orders were issued at Kolkata; the respondent no. 1 allegedly
supplied the chairs at Kolkata and no part of cause of action has ever
been arisen in Delhi. The learned Senior Counsel during arguments
referred Harshad Chiman Lai Modi V DLF Universal Ltd. &
another, 2005 (7) SCC 791 and particularly relied on para no. 13 of
said judgment which is reproduced as under:-
Mr. Rohatgi, Senior Advocate appearing for the respondents,
on the other hand, supported the order passed by the trial
court and confirmed by the High Court. He submitted that the
suit relates to specific performance of agreement relating to
immovable property. In accordance with the provisions of
Section 16 of the Code, such suit can be instituted where the
immovable property is situate. Admittedly the property is

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12. The counsel for the respondent in oral arguments and in written
submissions besides factual background submitted that the appeal is
time barred and court at Delhi is having territorial jurisdiction to
entertain and try present suit as the respondent no. 1 manufactured 750
chairs on specific demands of the appellant no. 1 after procuring raw
material at Delhi; the respondent no. 1 dispatched chairs from Delhi
and the respondent no. 1 is running its business in Delhi. The appeal is
liable to be dismissed being meritless.
13. Section 15 CPC deals with place of suing. It provides that every
suit shall be instituted in the Court of the lowest grade competent to
try it. Sections 16 to 20 CPC deals with territorial jurisdiction of civil

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courts. Section 20 being a residuary provision, covers all cases not
falling under Sections 16 to 19. Section 20 CPC provides that suits to
be instituted where defendants reside or cause of action arises. It reads
as under:-
20. Other suits to be instituted where defendants reside or
cause of action arises.—
Subject to the limitations aforesaid, every suit shall be
instituted in a Court within the local limits of whose
jurisdiction—
(a) the defendant, or each of the defendants where there
are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or
(b) any of the defendants, where there are more than
one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business,
or personally works for gain, provided that in such case
either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally
works for gain, as aforesaid, acquiesce in such
institution; or
(c) The cause of action, wholly or in part, arises.
14. Jurisdiction is an important factor to determine power of the
court to adjudicate the case. No court can proceed with the suit unless
and until court is having jurisdiction to entertain and try the suit.
Jurisdiction confers the power or authority upon the court to
adjudicate any dispute between the concerned parties and to pass
judgment or order. Jurisdiction is not defined in CPC but reflects
competency of the court to try the suit. Jurisdiction is boundary of

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civil court in exercise its judicial authority . Jurisdiction of civil courts
can be categorised on the basis of pecuniary, territorial and subject
matter. In Territorial Jurisdiction, geographical boundaries and limits
determine the jurisdiction of civil courts. In Hriday Nath Roy V Ram
Chandra, AIR 1921 Cal 34 High Court of Calcutta explained
Jurisdiction and observed as under:-

15. The question of what is jurisdiction fell for consideration before
the Supreme Court in Official Trustees West Bengal V Sachindra
Nath Chatterjee , AIR 1969 SC 823. The Supreme Court after relying
on the Full Bench judgement in Hriday Nath Roy V Ramchandra
held as under:
13. What is meant by jurisdiction? This question is answered
by Mukherjee Acting C.J., speaking for the full bench of the
Calcutta High Court in Hirday Nath Roy v. Ramchandra
Barna Sarma, ………… explained what exactly is meant by
jurisdiction. We cannot do better than to quote his words:

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In the order of Reference to a Full Bench in the case of
Sukhlal v. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was
stated that jurisdiction may be defined to be the power of a
Court to ‗hear and determine a cause, to adjudicate and
exercise any judicial power in relation to it:‘ in other words,
by jurisdiction is meant ‗the authority which a ―Court has to
decide matters that are litigated before it or to take cognizance
of matters presented in a formal way for its decision.‘ An
examination of the cases in the books discloses numerous
attempts to define the term ‗jurisdiction‘, which has been
stated to be ‗the power to hear and determine issues of law
and fact‘ ―the authority by which the judicial officers take
cognizance of and decide causes‖; ‗the authority to hear and
decide a legal controversy‘ ―the power to hear and determine
the subject matter in controversy between parties to a suit and
to adjudicate or exercise any judicial power over them‖; ―the
power to hear, determine and pronounce judgment on the
issues before the Court‖; ―the power or authority which is
conferred upon a Court by the Legislature to hear and
determine causes between parties and to carry the judgements
into effect‖; ―the power to enquire into the facts, to apply the
law, to pronounce the judgement and to carry it into
execution‖.
Proceeding further the learned Judge observed: ―This
jurisdiction of the Court may be qualified or restricted by a
variety of circumstances. Thus, the jurisdiction may have to be
considered with reference to place, value and nature of the
subject matter. The power of a tribunal may be exercised
within defined territorial limits. Its cognizance may be
restricted to subject-matters of prescribed value. It may be
competent to deal with controversies of a specified character,
for instance, testamentary or matrimonial causes, acquisition
of lands for public purposes, record of rights as between
landlords and tenants. This classification into territorial
jurisdiction, pecuniary jurisdiction and jurisdiction of the
subject matter is obviously of a fundamental character.


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16. As per Section 20 (c) a civil suit can be instituted at a place
where the cause of action, wholly or in part, arises. The phrase “cause
of action” is not defined in CPC. The cause of the action can be stated
to be a bundle of facts which allow a person to establish his or her
legal rights against another person with a right to take legal action
against another person on the basis of these facts. Cause of action is an
integral part and foundation of the plaint and if there is no cause of
action then the plaint has to be rejected. The cause of action must have
occurred before institution of plaint. The Supreme Court in Om
Prakash Srivastava V Union of India and another (2006) 6 SCC
207) clarified expression “cause of action” as under:-
―Cause of action‖ means, in the restricted sense, the
circumstances which constitute a infringement of the right or
the immediate cause for the reaction. In the wider sense it
implies the conditions required for the enforcement of the
action, including the violation of the right and the violation
combined with the power itself. Compendiously, as noted
above, the expression means any fact that the plaintiff would
need to assert, if violated, to maintain his right to the Court‘s
judgment. Every circumstance that is required to be
established, as distinguished from every piece of evidence that
is necessary, to prove that every fact is part of ―cause of
action.
17. The respondent no. 1 in plaint regarding accrual of cause of
action in its favor and territorial jurisdiction of this court averred facts
which are reproduced as under:-
25. The cause of action for filing the present suit has arisen in
favor of Plaintiff and against the Defendants on 10.02.2010
'when agreement was executed between the parties for supply,

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fitting & fixing of chairs , cause of action further arose when
defendants issued two work orders dated 10.02.2010 in favour
of plaintiff in Delhi, cause of action further arose when the
plaintiff purchased the raw materials in Delhi to fulfill the
work order requirements, cause of action further arose when
chairs were made in Delhi at the business premises of the
plaintiff, cause of action further arose when Performa Invoice
No.55 and 56 dated 22.02.2010 were raised for purpose of issue
of Way Bill Form 50, and Invoice Bills No. 55 &56 were raised
in Delhi on 22.02.2010 , cause, of action further arose when the
two Way Bill dated 16.04.2010 were sent by defendants to the
plaintiff in Delhi, cause, of action further arose when first
consignments of 519 chairs was sent by the plaintiff to the
defendants from Delhi to Kolkata on 9.05.2010 through TCI
freight in Delhi, cause of action further arose in favor of
plaintiff and against the defendants when second consignment
of 231 chairs was sent by the plaintiff to, the defendants from
Delhi to Kolkata on 15.05.2010 through TCI freight in Delhi,
cause of action further arose when demand of payment of
Rs 33,00,750/-was raised by the plaintiff by sending demand
letter on 16.06.2010, cause of action further arose when
plaintiff sent another demand letter for payments, of dues in
Delhi on 27.10.20T0, cause of action further arose on
23.02.2011 when the defendant sent letter to the plaintiff in
Delhi for installing chairs on different venue i.e. Uttam
Manch, cause of action further arose when fire broke out in
Sarat 'Sadan on 17.10.2011 damaging the chairs supplied by
plaintiff; the cause of action further arose when plaintiff sent
another demand letter to the defendants on 14.11.2011 for
clearing its due payment from Delhi, cause of action further
arose in favor of plaintiff when plaintiff received a letter dated
22.11.2011 in Delhi for joint inspection at Sarat Sadan to
assess the fire damage to 750 chairs on 29.11.2011, cause of
action further arose plaintiff received letter dated 14.12.2011
in Delhi demanding received copy of supply of 750 chairs,
cause of action further arose when plaintiff sent reply with
documents for supply of 750 chairs on 07.01.2012,cause of
action further arose on 05.09.2012 when legal notice was sent

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to the defendants, cause of action further arose when despite
receiving all the required documents plaintiff received another
letter in Delhi dated 17.4.2013 asking plaintiff to submit the
receipt for supplying of consignment, cause of action continue
to arose till due/payment of Rs 50,83,155 with interest is paid
to the plaintiff.
26. That the goods were manufactured in Delhi, consignments
were sent through TCI freight in Delhi &Plaintiff firm
business is conducted from Delhi and due payment is to be
paid in Delhi. Further the actions mentioned in above para
also took place in Delhi. Hence this Hon'ble Court has got
territorial jurisdiction to entertain &adjudicate upon the
present suit.
18. It is apparent that the appellant no. 1 issued advertisement
Mark A regarding supply 750 chairs to be fitted and fixed at Sarat
Sadan Hall at Behela i.e. designated site in Kolkata. The letter dated
05.12.2009 Ex. PW1/B whereby respondent no. 1 being lowest bidder
was invited to execute agreements was issued in Kolkata. The
agreements dated 10.02.2010 Mark C & D were executed in Kolkata.
Work Orders Mark E and Mark F total amounting to Rs.33,00,750/-
were issued in Kolkata in favor of the proprietor of the respondent
no. 1. The chairs were delivered to the respondent no. 2 at designated
site in Kolkata vide delivery receipts Ex. PW1/H and Ex. PW1/I . The
respondent no. 1 met Chief Municipal Engineer (P&D) in Kolkata
who asked the respondent no. 1 to install 750 chairs to another site i.e.
Uttam Manch and letter bearing no. A&D/L/2444/10-11 dated
23.02.2011 Mark O was issued in Kolkata. The letter dated
22.11.2011 Ex.PW1/R for joint inspection to assess the loss caused by
fire was issued in Kolkata. The letter bearing no. P&D/L/266/11-12
dated 14.12.2011 Ex.PW1/T whereby the respondent no. 1 was asked

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to submit „received copy‟ regarding supply of 750 chairs was issued in
Kolkata. These facts combined together reflect that the cause of action
required for filing the present suit was accrued in Kolkata.
19. However, the respondent no. 1 in plaint also mentioned
various other facts which combined together reflect that part of cause
of action has also accrued in Delhi in favour of the respondent no. 1
and this court is having territorial jurisdiction to entertain and try the
suit. The respondent no. 1, a proprietorship firm, was conducting
business of supplying high quality cinema-auditorium chairs
throughout India under name & style of M/s Rana Chairs in Delhi.
th
The respondent no. 1 received Work Orders dated 10 February,
2010 bearing no. CMA & TP/22/09-10 for 231 chairs @ 4401/chair
amounting to Rs.10,16,631/- Mark E and bearing no. CMA &
TP/23/09-10 for 519 chairs @ 4401/chair amounting to Rs.22,84,119/-
Mark F (total amounting to Rs. 33,00,750/-) in Delhi. The
respondent no. 1 purchased the raw materials in Delhi to execute work
orders and chairs were manufactured in Delhi at the business premises
of the plaintiff. The respondent no. 1 sent two Performa Invoices
Mark G1 and G2 in pursuance of Way Bill Form-50 both dated
16.04.2010 from Delhi. The respondent no. 1 dispatched two
consignments vide Invoices Mark K and Mark J for delivery of
chairs at designated site vide delivery receipts Ex. PW1/H and Ex.
PW1/I from Delhi. The Supreme Court in A.V.M.Sales Corporation
V M/S Anuradha Chemicals Pvt.Ltd, Special Leave Petition (C) No.
th
10184 Of 2008 decided on 17 January, 2012 as referred by the

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respondent no. 1 regarding accrual of cause of action at particular
place held as under:-

and 27.10.2010 Mark N for release of payment from Delhi. The
perusal of Work Orders and Agreements reflects that place of payment
was not fixed or specified therein. Another Bench of this Court in
Satya Pal V Slick Auto Accessories Pvt. Ltd. & others, RSA No.
th
40/2013 decided on 05 March, 2014 upheld the findings given by the
trial court to effect that the courts at Delhi had territorial jurisdiction
because the payment was to be made in Delhi in as much as once no
place of payment is specified, the debtor has to seek the creditor, and
since the creditor/plaintiff was at Delhi, therefore, payment has to be
made at Delhi and part of the cause of action will accordingly arise at
Delhi and further observed that it is a well-established principle of
law that where, under a contract no place of payment is specified, the
debtor must seek his creditor and therefore a suit for recovery is
maintainable at the place where the creditor resides or works for gain,
because a part of the cause of action arises at that place also with the
contemplation of Section 20 (c) of the Code of Civil Procedure. In the

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present case also, the appellant no. 1 was required to make payment to
the respondent no. 1 at Delhi.
21. The respondent no. 1 received letter bearing no.
A&D/L/2444/10-11 dated 23.02.2011 Mark O in Delhi and sent letter
dated 25.07.2011 Ex, PW1/P from Delhi. The respondent no. 1
received letter bearing no. P&D/L/266/11-12 dated 14.12.2011
Ex.PW1/T for submitting „received copy‟ regarding supply of 750
chairs in Delhi and sent reply dated 07.01.2012 Ex. PW1/U from
Delhi. The appellant no. 1 sent letter dated 24.01.2012 Ex.PW1/V to
the respondent no. 1 in Delhi. The respondent no. 1 sent a legal notice
dated 05.09.2012 Ex. PW1/W to the officers of the appellant no. 1
and letter dated 17.04.2013 Ex. PW1/X from Delhi. In view of these
facts it is established that entire transaction pertaining to supply of 750
chairs was partly executed in Kolkata and partly executed in Delhi and
as such entire transaction is having multiple jurisdiction. It cannot be
said that entire cause of action for filing the present suit only accrued
at Kolkata. The part of cause of action also accrued at Delhi. Mere
issuance of advertisement Mark A, execution of two agreements dated
10.02.2010 Mark C & D, issuance of Work Orders Mark E and
Mark F and delivery of chairs at designated site in Kolkata vide
delivery receipts Ex. PW1/H and Ex. PW1/I do not exclude the
territorial jurisdiction of Courts at Delhi completely. The Supreme
Court in Kusum Ingots & Alloys Ltd. V Union of India and
another, (2004) 6 SCC 254 also observed that even if a small part of
the cause of action accrues within the territorial jurisdiction of a High
Court, the Court will have the jurisdiction to entertain the petition

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under Article 226 of the Constitution. The Supreme Court
in Alchemist Ltd. & another V State Bank of Sikkim & others,
(2007) 11 SCC 335 held that the test is whether a particular fact(s) is
(are) of substance and can be said to be material, integral or an
essential part of the lis between the parties. If it is, it forms a part of
the cause of action. If it is not, it does not form a part of the cause of
action. It is also well settled that in determining the question, the
substance of the matter and not the form thereof has to be considered.
The acts as detailed hereinabove and accomplished in Delhi are
integral, material and essential parts of entire transaction of supply of
750 chairs at designated site.
22. The arguments advanced by the learned Senior Counsel for
the appellants that Court at Delhi does not have territorial jurisdiction
is without any legal force. The decision delivered in Harshad
Chiman Lai Modi V DLF Universal Ltd. & another, 2005 (7) SCC
791 does not provide any support to the arguments advanced by the
learned Senior Counsel for the appellants as in present case
jurisdiction was not conferred either at Kolkata or Delhi with the
consent of the parties but under given facts and circumstances of case,
territorial jurisdiction was vesting in both Kolkata and Delhi.
Accordingly this court is having territorial jurisdiction to entertain and
try the suit.
23. The present appeal also needs consideration from angle of stage
of raising objection as to territorial jurisdiction of the Court. Section
21 CPC deals with objections to jurisdiction. It reads as under:-

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21. Objections to jurisdiction. — (1) No objection as to the
place of suing shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity and in all cases
where issues are settled at or before such settlement, and
unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with
reference to the pecuniary limits of its jurisdiction shall be
allowed by any Appellate or Revisional Court unless such
objection was taken in the Court of first instance at the
earliest possible opportunity, and, in all cases where issues are
settled, at or before such settlement, and unless there has been
a consequent failure of justice.
(3) No objection as to the competence of the executing Court
with reference to the local limits of its jurisdiction shall be
allowed by any Appellate or Revisional Court unless such
objection was taken in the executing Court at the earliest
possible opportunity, and unless there has been a consequent
failure of justice.
24. The objections pertaining to territorial jurisdiction of the court
is required to be taken in the court of first instance before settlement
of issues and shall not be allowed by any appellate or revisional court
unless there is a consequent failure of justice. In Harshad Chiman
Lal Modi v. DLF Universal Ltd. AIR 2005 SC 4446 it was observed
as under:-
The jurisdiction of a court may be classified into several
categories. The important categories are (i) Territorial or
local jurisdiction; (ii) Pecuniary jurisdiction; and (iii)
Jurisdiction over the subject matter. So far as territorial and
pecuniary jurisdictions are concerned, objection to such
jurisdiction has to be taken at the earliest possible

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opportunity and in any case at or before settlement of issues.
The law is well settled on the point that if such objection is
not taken at the earliest, it cannot be allowed to be taken at
the subsequent stage.
25. The appellants in application bearing IA no. 4956 of 2016 under
Order IX Rule 13 CPC admitted that summons were served on
11.12.2013 and because of ill legal advice given by the local advocate
about dismissal of suit due to lack of territorial jurisdiction did not
contest the suit. The defendants in suit were proceeded ex-parte vide
order dated 27.05.2014. The judgment and decree under challenge was
passed on 17.09.2015. The appellants did not take any step to contest
the suit despite service of summons on 11.12.2013 without any
justified reason. The plea of the appellants that the appellant no. 1
acted under ill advice given by the local advocate is without any basis
and does not appeal to reasons. The appellants were having sufficient
opportunity to contest the suit and to raise objection regarding
territorial jurisdiction after service of summons before the learned
Single Judge by participating in trial of the case. The appellants cannot
be allowed to take advantage of their own wrongs and negligence and
has failed to establish consequent failure of justice. The appellants
under given facts and circumstances of case cannot be allowed to take
or raise objection pertaining to lack of territorial jurisdiction.
26. The learned Senior Counsel for the appellants argued that no
notice under section 586 of the Kolkata Municipal Corporation Act,
1980 was served on the appellant no. 1 which is a mandatory
requirement before institution of the present suit and hence suit was

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liable to be dismissed. The counsel for the respondent no. 1 argued
that legal notice dated 05.09.2012 was served upon the officers of the
appellant no. 1 before institution of suit and as such suit is
maintainable.
27. Section 586 of the Kolkata Municipal Corporation Act, 1980
reads as under:-

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28. It is apparent from bare reading of section 586 that no suit shall
be instituted in any court until expiration of one month next after a
notice in writing has been delivered or left at the office of such
authority or at the office or the residence of such officer or employee
or person. The respondent no. 1 in plaint and PW1 in affidavit Ex.
PW1/1 mentioned that the respondent no. 1 sent a legal notice dated
05.09.2012 Ex. PW1/W to the officers of the appellant no. 1 who
were arrayed as defendants in original suit which was not replied on
behalf of the appellants. The suit was filed in year of 2013. The
issuance and service of legal notice dated 05.09.2012 Ex.PW1/W is
not disputed on behalf of the appellants. There may be irregularity in
notice Ex. PW1/W but it is established that the respondent no. 1 has
complied with requirement of section 586 of the Act. The suit was not
bad for want of notice under section 586 of the Act.
29. The learned Senior Counsel for the appellants argued that the
appellant no. 1 was not impleaded as necessary party as per section 4
(2) of the Kolkata Municipal Corporation Act, 1980. Section 4(2) of
the Act reads as under:-

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30. It is correct that the respondent no. 1 in plaint did not implead
the appellant no. 1 as one of the necessary parties as per section 4(2)
of the Act. The respondent no. 1 initially impleaded the respondent no.
2/defendant no. 1/Director General (Town Planning)/, the defendant
no. 2/N. B. Basu, the defendant no. 3/P.K.Dass and the defendant no.
4/Sankar Gosh who were officers of the appellant no. 1 as necessary
parties. The respondent no. 1 vide statement dated 28.04.2014 made
before the Joint Registrar preferred to delete the defendants no. 3 and
4 from array of the parties. The respondent no. 1 was required to sue
the appellant no. 1 in its own name as per section 4(2) of the Act but
the respondent no. 1 impleaded those officers of the appellant no. 1
who were directly responsible for management of affairs of the
respondent no. 1. The non-impleading of the appellant no. 1 as
necessary party may be an irregularity but it is not an illegality fatal to
the case of the respondent no. 1 as no prejudice caused to the appellant
no. 1.
31. The learned Senior Counsel for the appellant argued that the
suit was without merit. The respondent no. 1 pleaded and proved
necessary facts making the respondent no. 1 entitled to get relief. The
respondent no. 1 pleaded and proved issuance of advertisement Mark
A issued on behalf of the appellant no. 1 regarding supply of 750
chairs, execution of two agreements dated 10.02.2010 Mark C & D
and Work Orders Mark E and Mark F, Way Bill Form-50, sending of
two Performa Invoices Mark G1 and G2, delivery of 750 chairs vide
delivery receipts Ex. PW1/H and Ex. PW1/I, service of legal notice
dated 05.09.2012 Ex. PW1/W besides other relevant facts. The facts

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pleaded and proved by the respondent no. 1 remained unchallenged
and unrebutted. It cannot be said that suit was without merit.
32. The learned Single Judge in judgment and decree dated
17.09.2015 held that there is nothing on record which could suggest
that the prayers sought in the plaint could not be granted as the receipt
of chairs was not rebutted and request for installation of the chairs at
Sarat Sadan, Behata was acknowledgement of the acceptable and good
quality of the chairs; the letter dated 17.04.20I3 was an afterthought
and an endeavour to escape the acknowledged liability to pay the sale
consideration. We are of the opinion that the learned Single Judge has
considered all relevant issues before passing the judgment and decree
dated 17.09.2015 which does not call for any interference.
33. The present appeal does not merit consideration and hence
dismissed on grounds of delay as well as being without merits. The
appeal along with pending applications if any stands disposed of.

SUDHIR KUMAR JAIN, J.


SURESH KUMAR KAIT, J.
JULY 04, 2022
‘N/S’

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