SHIVANI FILMS vs MARUTI ENTERPRISE THROUGH VIJAYKUMAR DEVABHAI ODEDARA
- Court
- Gujarat High Court
C/FA/2981/2012 (GJHC240399832012) CAV JUDGMENT DATED:
01/09/2026
Reserved On : 21/08/2026
Pronounced On : 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2981 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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SHIVANI FILMS & ANR.
Versus
MARUTI ENTERPRISE THROUGH VIJAYKUMAR DEVABHAI ODEDARA
==========================================================
Appearance:
MR MONARCH PANDYA for MR HRIDAY BUCH(2372) for the Appellants
MR UTSAV SHAH for MR ASHISH M DAGLI(2203) for the Respondent
==========================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
PROLOGUE
1. This appeal u/s 96 r/w Order 41 of the Code of Civil
Procedure, 1908 (in short “the Code”) is directed against the
judgment and decree dated 10th April, 2012 passed below
Exh.33 in Special Civil Suit No. 5 of 2006 by the learned
Principal Senior Civil Judge, Porbandar, whereby the learned
trial court partly decreed the suit of the Respondent (original
plaintiff) and directed the Appellant (original defendant) to
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pay Rs. 10,00,000/- together with running interest at the rate
of 6% interest from the date of filing of the suit till realization.
2. For the sake of convenience and brevity, parties are
referred to as per their original status before the learned trial
Court.
FACTUAL MATRIX
3. The plaintiff - proprietor of Maruti Enterprise is a film
distributor, engaged in film distribution business having its
office at Dhoraji and Porbandar, had filed the suit for recovery
of Rs. 10,00,000/- with interest at 18% from the defendants. It
was alleged that Maruti Enterprise had entered into a
contract dated 25th March, 2003 with Shivani Films -
defendant firm represented by its partner Mr. Jitubhai K.
Shah for the release of the Hindi feature film “Ek Hindustani”
in the Saurashtra region, and that, pursuant to this contract,
the plaintiff paid Rs. 10,00,000/- in advance to the defendant
in installments of Rs. 2,50,000/- each on different dates, for
which the defendant issued receipts.
3.1 That, despite repeated requests, the defendant did not
handover reels of film for releasing the film and that on 9th
February, 2006 the defendant met the plaintiff at the
Dreamland Cinema office, Porbandar, and informed him that
the film would not begiven to him. The plaintiff thereupon
claimed the return of the Rs. 10,00,000/- paid to the
defendant; the resulting dispute led to a confrontation
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between the parties, and ultimately to the filing of a criminal
complaint. Subsequently, the plaintiff accordingly filed the
suit for recovery of Rs. 10,00,000/- together with interest at
18% per annum.
3.2 Summons was served upon the defendant, who initially
did not appear, as a result of which the defendant's right to
file a written statement was closed. Subsequently, upon an
application filed by the defendant at Exh. 6, the defendant's
right to file a written statement was restored, and the written
statement was thereafter filed at Exh. 18.
3.3 In the written statement, the defendant, besides denying
the allegations of the plaintiff, contended that: (i) the Civil
Court at Porbandar had no territorial jurisdiction to entertain
the suit; (ii) the receipts relied upon by the plaintiff were
bogus and fabricated; (iii) no contract had been executed
between the defendant and the plaintiff; (iv) the agreement
did not confer upon the plaintiff any right to release the
feature film, and that, in any event, the print of the film was
never furnished to the defendant by the producer and could
accordingly not have been passed on for release; and (v) a
complaint in relation to the dispute was pending before the
Indian Motion Picture Distributors' Association, and the
plaintiff had filed the suit, without awaiting the outcome of
that proceeding, in order to pressurize the defendant. All
other allegations in the plaint were denied.
3.4 At trial, the plaintiff led documentary and oral evidence;
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the defendant did not lead any oral or documentary evidence.
The learned trial Court passed the final judgment and decree
partly decreeing the suit in favour of the plaintiff.
3.5 Aggrieved thereby, the defendant preferred the present
appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT -
DEFENDANT
4. Learned counsel Mr. Monarch Pandya for learned
advocate Mr. HC Buch for the appellant - defendant submitted
that the agreement in question was signed by the father of the
plaintiff and not by the plaintiff himself, and therefore,
plaintiff – Vijaykumar Odedara had not derived any right to
sue the defendant upon the agreement between the parties.
4.1 Learned counsel for the defendant further relied upon
the judgment of the Hon’ble Apex Court in case of Rakesh
Kumar Verma v. HDFC Bank Limited, AIR 2025 SC 1917
as well as section 21 of the Code and submitted that Clause
18 of the agreement executed between the parties provides
that the Court of Mumbai City alone has jurisdiction to decide
disputes between the parties. On this basis, it was submitted
that the decree passed by the learned trial Court is a nullity
for want of territorial jurisdiction, and that the appeal ought
to be allowed and the judgment and decree of the trial court
ought to be quashed and set aside.
4.2 Upon above submissions, learned advocate for the
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defendant prays to allow the First Appeal and to quash and
set aside the impugned judgment and decree.
SUBMISSIONS ON BEHALF OF THE RESPONDENT -
PLAINTIFF
5. Learned counsel Mr. Utsav Shah for the respondent
plaintiff submitted, with reference to Section 20(c) of the
Code that the cause of action for the recovery suit arose at
Porbandar, where the defendant failed and refused to repay
the amount received under the agreement between the
parties, and that the Court at Porbandar accordingly had
territorial jurisdiction to try and decide the suit. He would
further submit that in view of Section 21(1) of the Code, an
objection as to the place of suing cannot be entertained by an
appellate 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. It
was submitted that the defendant, not having raised any
objection as to territorial jurisdiction before settlement of the
issues at first instance, could not raise the objection for the
first time at the appellate stage.
5.1 Learned advocate Mr. Utsav Shah would further submit
that applying the test of prejudice, the defendant had failed to
establish that passing of the decree by the learned civil Court
at Porbandar had prejudiced the defendant's case. Reference
was made to the cross-examination of the plaintiff conducted
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on behalf of the defendant, and it was submitted that not a
single question had been put in that cross-examination
suggesting that the Civil Court at Porbandar lacked territorial
jurisdiction to try and decide the suit.
5.2 In these circumstances, it was submitted by learned
advocate Mr. Shah that the defendant's challenge to the
competence of the learned trial court was not permissible at
this stage, and that the appeal ought to be dismissed.
POINTS FOR DETERMINATION
6. Having heard rival submissions of learned counsel for
both sides and going through the R & P as well as impugned
judgment and decree, the following points arose for
determination:
“1. Whether the defendant is entitled to raise the
objection of lack of territorial jurisdiction at the
appellate stage and whether such a plea was
available to the defendant even during the trial?
2. Whether, on an application of the test of prejudice,
the judgment and decree passed by the learned
Principal Senior Civil Judge, Porbandar caused any
inconvenience, prejudice, or occasioned failure of
justice to the defendant?
3. Whether the learned trial court committed any
error in decreeing the suit in favour of the plaintiff?
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4. What order?”
FINDINGS AND REASONING OF THE COURT
7. Before I discuss the rival submissions canvassed by
learned advocates for both the parties, let me note that the
defendant, in the suit proceedings, apart from filing the
written statement and cross-examining the plaintiff's
evidence, did not otherwise participate in proceedings, and
led evidence to prove the pleadings raised in the written
statement. It has to be observed that it is a settled principle of
law that pleading cannot take the place of proof.
8. Let me refer the issues framed by the learned trial court
noting that the suit was ultimately decreed in favour of the
plaintiff in absolute terms. The issues framed by the learned
trial Court reads as under:-
“1. Whether the plaintiff proves that on 25-03-03, the
defendant No. 2 has made an agreement with him
regarding the distribution of film "Ek Hindustani"?
2. Whether the plaintiff proves that he has paid Rs.
10,00,000/- to the defendant No. 2 on different dates
according to agreement dated 25-03-03?
3. Whether the plaintiff proves that as the defendants
have not made specific performance of the contract
and therefore, the plaintiff is entitled to get relief
prayed for?
4. Whether the plaintiff proves that he is entitled to
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get interest a the rate of 18% p.a. from the
defendants?
5. Whether the defendant No. 2 proves that on 25-03-
03, he has made the suit agreement with the owner of
M/s. Maruti Enterprise, Dhoraji and not with the
plaintiff?
6. What order and decree?”
9. Issue Nos. 1 and 2 were answered in the affirmative,
Issue No. 3 was answered partly in the affirmative, Issue No.
4 was held partly in the affirmative (with the decretal amount
held to carry interest at 6%), and Issue No. 5 was answered in
the negative. On Issue No. 6, the trial court passed the final
order partly decreeing the suit in favour of the plaintiff.
10. The pivotal argument of learned counsel for the
defendant was that the learned trial Court lacked
inherent/territorial jurisdiction to decide the suit in terms of
Clause 18 of the agreement executed between the parties. It
is further argument of learned advocate Mr. Monarch Pandya
that clause 18 of the agreement executed between the parties
states that Court at Mumbai only has jurisdiction to decide the
issue of jurisdiction.
11. On examining the written statement filed by the
defendant [Exh. 18], it appears that, other than in paragraphs
4 and 10 of the written statement, no contention regarding
the jurisdiction of the court was raised, and that even in
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paragraphs 4 and 10, the objection was a general and
superficial statement that the Court at Porbandar had no
jurisdiction to try and decide the suit, without pleading why or
how the Civil Court at Porbandar lacked jurisdiction. To be
noted that no reference whatsoever to Clause 18 of the
agreement was made in the written statement in support of
the jurisdictional objection.
12. Let refer section 21(1) of the Code as under:
“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.
13. Section 21(1) of the Code infers that an objection as to
the place of suing shall not 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. In
the present case, the Court found that the defendant had not
taken any such objection at the first instance at the earliest
possible opportunity or before settlement of the issues, and
that no specific application raising the objection was shown to
have been made before the trial Court to contend that the
learned trial Court has no territorial jurisdiction to try and
decide the suit. In view of aforesaid provisions of law, at the
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appellate stage, the defendant is not entitled to raise other
objection. The second test is that such objection can be
allowed only if it resulted into consequent failure of justice.
14. A specific question was put to learned counsel for the
defendant as to how the defendant would have been
prejudiced by the decree having been passed by the learned
trial court at Porbandar instead of a court at Mumbai, and
that learned counsel was unable to answer this question.
15. Let me observe that the Code of Civil Procedure draws a
distinction between an inherent lack of jurisdiction, which
may render a decree passed by that court void, however, an
objection to territorial or pecuniary jurisdiction does not
automatically render a decree void.
16. The Hon’ble Apex Court in case of Subhash
Mahadevasa Habib Vs. Nemasa Ambasa Dharmadas
(Dead) by Lrs and others, (2017) 13 SCC 650 , held in para
33 as under:-
“33. What is relevant in this context is the legal effect
of the so-called finding in O.S. No. 4 of 1972 that the
decree in O.S. No. 61 of 1971 was passed by a court
which had no pecuniary jurisdiction to pass that
decree. The Code of Civil Procedure has made a
distinction between lack of inherent jurisdiction and
objection to territorial jurisdiction and pecuniary
jurisdiction. Whereas, an inherent lack of jurisdiction
may make a decree passed by that court one without
jurisdiction or void in law, a decree passed by a court
lacking territorial jurisdiction or pecuniary
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jurisdiction does not automatically become void. At
best it is voidable in the sense that it could be
challenged in appeal therefrom provided the
conditions of Sec. 21 of the Code of Civil Procedure
are satisfied.”
17. Yet, in another judgment, which is pressed into service,
is in case of Sneh Lata Goel Vs. Pushplata and others,
(2019) 3 SCC 594 , the Hon’ble Apex Court surveyed slew of
authorities after referring to section 21 of the Code and held
in para 14 to 23 as under:-
“ 14. The learned counsel appearing on behalf of the
respondents has submitted that the objection as to
the lack of territorial jurisdiction was raised in the
written statement before the trial court. But evidently
the suit was decreed ex-parte after the respondents
failed to participate in the proceedings. The
provisions of Section 21(1) contain a clear legislative
mandate that an objection of this nature has to be
raised at the earliest possible opportunity, before
issues are settled. Moreover, no such objection can
be allowed to be raised even by an appellate or
revisional jurisdiction, unless both sets of conditions
are fulfilled.
15. Learned counsel appearing on behalf of the
respondent has placed a considerable degree of
reliance on the judgment of four Judges of this Court
in Kiran Singh (supra). In that case, there was a
dispute in regard to the valuation of the suit. The
issue would ultimately determine the forum to which
the appeal from the judgment of the trial court would
lie. If the valuation of the suit as set out in the plaint
was to be accepted, the appeal would lie to the
district court. On the other hand, if the valuation as
determined by the High Court was to be accepted,
the appeal would lie before the High Court and not
the District Court. It was in this background that this
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Court held that as a fundamental principle, a decree
passed by a court without jurisdiction is a nullity and
that its validity could be set up wherever it is sought
to be enforced or relied upon, even at the stage of
execution in a collateral proceeding. Moreover, it was
held that a defect of jurisdiction, whether pecuniary
or territorial or whether it is in respect of the subject
matter of the action, strikes at the very authority of
the court to pass the decree and cannot be cured
even by the consent of the parties.
16. The Court in Kiran Singh case then proceeded to
examine the effect of Section 11 of the Suit Valuation
Act 1887 on this fundamental principle. This Court
held thus:
"7. Section 11 enacts that notwithstanding anything
in Section 578 of the Code of Civil Procedure, an
objection that a court which had no jurisdiction over
a suit or appeal had exercised it by reason of
overvaluation or undervaluation, should not be
entertained by an appellate court, except as provided
in the section...a decree passed by a court, which
would have had no jurisdiction to hear a suit or
appeal but for overvaluation or undervaluation, is not
to be treated as, what it would be but for the section,
null and void, and that an objection to jurisdiction
based on overvaluation or undervaluation, should be
dealt with under that section and not otherwise.
The reference to Section 578, now Section 99 CPC, in
the opening words of the section is significant. That
section, while providing that no decree shall be
reversed or varied in appeal on account of the defects
mentioned therein when they do not affect the merits
of the case, excepts from its operation defects of
jurisdiction. Section 99 therefore gives no protection
to decrees passed on merits, when the courts which
passed them lacked jurisdiction as a result of
overvaluation or undervaluation. It is with a view to
avoid this result that Section 11 was enacted. It
provides that objections to the jurisdiction of a court
based on overvaluation or undervaluation shall not be
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entertained by an appellate court except in the
manner and to the extent mentioned in the section. It
is a self-contained provision complete in itself, and no
objection to jurisdiction based on overvaluation or
undervaluation can be raised otherwise than in
accordance with it.
With reference to objections relating to territorial
jurisdiction, Section 21 of the Civil Procedure Code
enacts that no objection to the place of suing should
be allowed by an appellate or Revisional Court,
unless there was a consequent failure of justice. It is
the same principle that has been adopted in Section
11 of the Suits Valuation Act with reference to
pecuniary jurisdiction. The policy underlying Sections
21 and 99 of the Civil Procedure Code and Section 11
of the Suits Valuation Act is the same, namely, that
when a case had been tried by a court on the merits
and judgment rendered, it should not be liable to be
reversed purely on technical grounds, unless it had
resulted in failure of justice, and the policy of the
legislature has been to treat objections to jurisdiction
both territorial and pecuniary as technical and not
open to consideration by an appellate court, unless
there has been a prejudice on the merits." (Emphasis
supplied).
17. Dealing with the question of whether a decree
passed on appeal by a court which had jurisdiction to
entertain it only by reason of undervaluation or
overvaluation can be set aside on the ground that on
a true valuation that court was not competent to
entertain the appeal, the Court held that a mere
change of forum is not 'prejudice' within Section 11
of the Suits Valuation Act. This Court held thus:
"12...it is impossible on the language of the section to
come to a different conclusion. If the fact of an appeal
being heard by a Subordinate Court or District Court
where the appeal would have lain to the High Court if
the correct valuation had been given is itself a matter
of prejudice, then the decree passed by the
Subordinate Court or the District Court must, without
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more, be liable to be set aside, and the words "unless
the overvaluation or undervaluation thereof has
prejudicially affected the disposal of the suit or
appeal on its merits" would become wholly useless.
These words clearly show that the decrees passed in
such cases are liable to be interfered with in an
appellate court, not in all cases and as a matter of
course, but only if prejudice such as is mentioned in
the section results. And the prejudice envisaged by
that section therefore must be something other than
the appeal being heard in a different forum. A
contrary conclusion will lead to the surprising result
that the section was enacted with the object of curing
defects of jurisdiction arising by reason of
overvaluation or undervaluation, but that, in fact, this
object has not been achieved. We are therefore
clearly of opinion that the prejudice contemplated by
the section is something different from the fact of the
appeal having been heard in a forum which would not
have been competent to hear it on a correct valuation
of the suit as ultimately determined." (Emphasis
supplied).
18. The Court in Kiran Singh case disallowed the
objection to jurisdiction on the ground that no
objection was raised at the first instance and that the
party filing the suit was precluded from raising an
objection to jurisdiction of that court at the appellate
stage. This Court concluded thus:
"16. If the law were that the decree of a court which
would have had no jurisdiction over the suit or appeal
but for the overvaluation or undervaluation should be
treated as a nullity, then of course, they would not be
stopped from setting up want of jurisdiction in the
court by the fact of their having themselves invoked
it. That, however, is not the position under Section 11
of the Suits Valuation Act."
Thus, where the defect in jurisdiction is of kind which
falls within Section 21 of the CPC or Section 11 of the
Suits Valuation Act 1887, an objection to jurisdiction
cannot be raised except in the manner and subject to
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the conditions mentioned thereunder. Far from
helping the case of the respondent, the judgment in
Kiran Singh (supra) holds that an objection to
territorial jurisdiction and pecuniary jurisdiction is
different from an objection to jurisdiction over the
subject matter. An objection to the want of territorial
jurisdiction does not travel to the root of or to the
inherent lack of jurisdiction of a civil court to
entertain the suit.
19. In Hiralal v Kalinath, AIR 1962 SC 199, a person
filed a suit on the original side of the High Court of
Judicature at Bombay for recovering commission due
to him. The matter was referred to arbitration and it
resulted in an award in favour of the Plaintiff. A
decree was passed in terms of the award and was
eventually incorporated in a decree of the High
Court. In execution proceedings, the judgment-debtor
resisted it on the ground that no part of the cause of
action had arisen in Bombay, and therefore, the High
Court had no jurisdiction to try the cause and that all
proceedings following thereon where wholly without
jurisdiction and thus a nullity. Rejecting this
contention, a four judge Bench of this Court held
thus:
"The objection to its [Bombay High Court] territorial
jurisdiction is one which does not go to the
competence of the court and can, therefore, be
waived. In the instant case, when the plaintiff
obtained the leave of the Bombay High Court on the
original side, under clause 12 of the Letters Patent,
the correctness of the procedure or of the order
granting the leave could be questioned by the
defendant or the objection could be waived by him.
When he agreed to refer the matter to arbitration
through court, he would be deemed to have waived
his objection to the territorial jurisdiction of the
court, raised by him in his written statement. It is
well settled that the objection as to local jurisdiction
of a court does not stand on the same footing as an
objection to the competence of a court to try a case.
Competence of a court to try a case goes to the very
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root of the jurisdiction, and where it is lacking, it is a
case of inherent lack of jurisdiction. On the other
hand, an objection as to the local jurisdiction of a
court can be waived and this principle has been given
a statutory recognition by enactments like Section 21
of the Code of Civil Procedure." (Emphasis supplied).”
20. In Harshad Chiman Lal Modi v DLF Universal
Ltd., 2005 7 SCC 791, this Court held that an
objection to territorial and pecuniary jurisdiction has
to be taken at the earliest possible opportunity. If it is
not raised at the earliest, it cannot be allowed to be
taken at a subsequent stage. This Court held thus:
"30. 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
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 a subsequent stage.
Jurisdiction as to subject-matter, however, is totally
distinct and stands on a different footing. Where a
court has no jurisdiction over the subject-matter of
the suit by reason of any limitation imposed by
statute, charter or commission, it cannot take up the
cause or matter. An order passed by a court having
no jurisdiction is a nullity."
21. In Hasham Abbas Sayyad v Usman Abbas Sayyad,
2007 2 SCC 355 a two judge Bench of this Court held
thus:
"24. We may, however, hasten to add that a
distinction must be made between a decree passed by
a court which has no territorial or pecuniary
jurisdiction in the light of Section 21 of the Code of
Civil Procedure, and a decree passed by a court
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having no jurisdiction in regard to the subject-matter
of the suit. Whereas in the former case, the appellate
court may not interfere with the decree unless
prejudice is shown, ordinarily the second category of
the cases would be interfered with."
22. Similarly, in Mantoo Sarkar v Oriental Insurance
Co. Ltd, 2009 2 SCC 244 a two judge Bench of this
Court held thus:
"20. A distinction, however, must be made between a
jurisdiction with regard to the subject-matter of the
suit and that of territorial and pecuniary jurisdiction.
Whereas in the case falling within the former
category the judgment would be a nullity, in the latter
it would not be. It is not a case where the Tribunal
had no jurisdiction in relation to the subject-matter of
claim.in our opinion, the court should not have, in the
absence of any finding of sufferance of any prejudice
on the part of the first respondent, entertained the
appeal."
23. The objection which was raised in execution in
the present case did not relate to the subject matter
of the suit. It was an objection to territorial
jurisdiction which does not travel to the root of or to
the inherent lack of jurisdiction of a civil court to
entertain the suit. An executing court cannot go
behind the decree and must execute the decree as it
stands. In Vasudev Dhanjibhai Modi v Rajabhai Abdul
Rehman, 1970 1 SCC 670 the Petitioner filed a suit in
the Court of Small Causes, Ahmedabad for ejecting
the Defendant-tenant. The suit was eventually
decreed in his favour by this Court. During execution
proceedings, the defendant-tenant raised an objection
that the Court of Small Causes had no jurisdiction to
entertain the suit and its decree was a nullity. The
court executing the decree and the Court of Small
Causes rejected the contention. The High Court
reversed the order of the Court of Small Causes and
dismissed the petition for execution. On appeal to this
Court, a three judge Bench of this Court, reversed the
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judgment of the High Court and held thus:
"6. A court executing a decree cannot go behind the
decree: between the parties or their representatives
it must take the decree according to its tenor, and
cannot entertain any objection that the decree was
incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a
decree even if it be erroneous is still binding between
the parties.
8. If the decree is on the face of the record without
jurisdiction and the question does not relate to the
territorial jurisdiction or under Section 11 of the
Suits Valuation Act, objection to the jurisdiction of
the Court to make the decree may be raised; where it
is necessary to investigate facts in order to determine
whether the Court which had passed the decree had
no jurisdiction to entertain and try the suit, the
objection cannot be raised in the execution
proceeding."
18. In recent judgment in case of Punjab National Bank
Vs. Atin Arora and others arising out of SLP (C) Nos.15347 –
15348 of 2020, the Hon’ble Apex Court in para 4 held as
under:-
“4. The High Court, while exercising its discretion,
overlooked the provisions of Section 21 of the Code
of Civil Procedure, 1908, whose principles and rule
should be applied in the present case. The principle
enjoins that objections regarding the place of suing
shall not be allowed unless such objection is taken in
the Court/tribunal of first instance at the earliest
possible opportunity. This Court, in Harshad Chiman
Lal Modi v. DLF Universal Ltd. and Anr.,3 has held
that if such objection is not taken at the earliest, it
cannot be allowed to be taken at a subsequent stage.
These principles were reiterated by this Court in
Subhash Mahadevasa Habib v. Nemasa Ambasa
Dharmadas (Dead) by LRS . and Ors.”
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19. Applying the aforesaid authorities to the facts of the
case, what appears that the defendant had failed to prove that
the decree passed by the learned Principal Senior Civil Judge,
Porbandar had occasioned a failure of justice.
20. Nonetheless, let me consider Clause 18 of the agreement
between the parties, which reads as under:-
“That dispute, if any, arising out of the interpretation
or implementation of the provisions hereof shall be
subject to the jurisdiction of the courts of MUMBAI
CITY only.”
21. Clause 18 provides that disputes, if any, arising out of
the interpretation or implementation of the provisions of the
contract shall be subject to the jurisdiction of the Court of
Mumbai City only. The present suit, being one for recovery of
money advanced by the plaintiff to the defendant, is not a
dispute of the kind covered by Clause 18. Therefore, taking
reference to a provision of Section 20(c) of the Code, a suit
may be filed in a court within the local limits of whose
jurisdiction the cause of action wholly or in part arises, and
that, since the amount was paid by the plaintiff to the
defendant at Porbandar, the Civil Court at Porbandar also had
jurisdiction to try and decide the suit.
22. It is interesting that the defendant did not meaningfully
participate in the suit proceedings, except at two occasions;
firstly by filing the written statement and secondly, cross-
examining the plaintiff, and that in that cross-examination no
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question was put suggesting that the Civil Court at Porbandar
lacked territorial jurisdiction. On facts, it is important to
visualize that learned counsel for the defendant had not been
able to raise any doubt regarding the four receipts placed on
record by the plaintiff, evidencing payment of Rs. 10,00,000/-,
in installments of Rs. 2,50,000/- each, nor had the defendant
placed anything on record to show that the said amount had
been repaid to the plaintiff.
23. On the contention that the agreement had not been
signed by the plaintiff, it can be observed that the agreement
[Exh. 23] was executed between the defendant firm – Shivani
Filams and plaintiff firm - Maruti Enterprise, and that, at the
time the agreement executed on 25th March, 2003, the
proprietor of Maruti Enterprise was the plaintiff's father. The
plaintiff had admitted in cross-examination that his father had
died in 2004, and that, by the time the suit was filed in 2006,
the plaintiff had become the proprietor of Maruti Enterprise.
Thus, the plaintiff had accordingly rightly filed the suit on the
strength of the agreement executed in favour of Maruti
Enterprise, and that it was not the defendant's case that
Maruti Enterprise had at any point been appointed as a sub-
distributor or provided with a print of the film.
24. Thus, it is proved the defendant, having breached the
terms and conditions of the contract, was liable to return the
benefit received under the agreement, and that the learned
trial court had rightly decided the suit in favour of the
plaintiff. The Court found no reason to interfere with the
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judgment of the learned trial court.
25. As regards the judgment relied upon by learned counsel
for the defendant, let me observe that in that case the issue of
territorial jurisdiction had been raised at the first instance
itself, and that the Hon’ble Apex Court , dealing with a
jurisdiction clause in a contract with reference to Section 28
of the Indian Contract Act, had held that where parties agree
that their dispute shall be governed by a specific court, such
agreement excludes other courts from entertaining the suit.
Thus, the facts of the case relied upon by the defendant did
not assist the defendant in the present matter.
ORDER
26. For the foregoing reasons, the appeal fails and is
accordingly, dismissed. Interim relief, if any, granted earlier
stands vacated forthwith.
27. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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