Full Judgment Text
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 17 DAY OF FEBRUARY, 2020
BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 3887 OF 2020 (GM CPC)
BETWEEN:
R
TVS MOTOR COMPANY LIMITED
A COMPANY UNDER THE
COMPANIES ACT, 2013
HAVING ITS REGISTERED OFFICE AT:
NO.12, KHADER NAWAZ KHAN ROAD
NUNGAMBAKKAM, CHENNAI-600 006.
REP. BY MR. P. SUDHIR
…
AUTHORIZED SIGNATORY PETITIONER
(BY SRI.S. VIJAYASHANKAR, SR.ADVOCATES
ALONG WITH SRI. ANIRUDH, ADVOCATE)
AND:
KONGOVI PRIVATE LIMITED
A COMPANY UNDER THE COMPANIES ACT,2013
HAVING ITS REGISTERED OFFICE AT:
TH TH
NO.377, 10 CROSS, 4 PHASE
PEENYA INDUSTRIAL AREA
BENGALURU-560 058. ...RESPONDENT
(BY MISS. MANEESHA KONGVI FOR C/R1.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS, SET ASIDE THE ORDER DATED 07.02.2020
ANNEXURE-A PASSED ON I.A.NO.2/2019 IN COM
O.S.NO.2451/2010 ON THE FILE OF THE HON’BLE COURT OF
THE LXXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
2
BENGALURU (COURT HALL NO.84) AND PASS AN ORDER
ALLOWING I.ANO.2/2019 AS PRAYED AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner-Company being the defendant in a money suit
in Com.O.S.No.2451/2010 is knocking at the doors of writ
court for assailing the order dated 07.02.2020, a copy
rd
whereof is at Annexure-A, whereby the learned 83 Addl. City
Civil Judge, Bengaluru (CH-84) has dismissed its application
for treating the additional issue No.1 as to territorial
jurisdiction of the Court as a preliminary issue; the said
application in I.A.No.2 is filed u/s.15(4) & 16(2) of the
Commercial Courts Act, 2015 r/w various Orders and Rules
of CPC 1908, including Sec.151. Petitioner has also a
grievance as to non-consideration of its contention as to
absence of a choate cause of action.
2. The respondent-defendant Company having entered
caveat through its counsel opposes the writ petition making
submission in justification of the impugned order.
3
3. Having heard the learned counsel for the parties
and having perused the petition papers, this Court declines to
interfere in the matter for the following reasons:
(a) the money suit in question has been pending
adjudication since the year 2010; the claim is for a huge sum
of Rs.4,11,53,318.78 with interest at the rate of 15% per
annum; petitioner as the defendant having entered
appearance through its counsel has already filed the Written
Statement; recording of the evidence is also half way through;
new Parliamentary Legislation namely, the Commercial
Courts Act, 2015 providing for speedy disposal of commercial
disputes has come into force; the suit arguably involves a
commercial dispute and therefore it should see a speedy
determination, without the avoidable interdiction by way of
intermediary challenge, lest the very purpose of the new Act
should be defeated;
(b) the contention of the petitioner that in terms of
Condition 25 of the Purchase Conditions, the suit of the kind
could be instituted in the Courts situate only in Chennai and
therefore the Court below lacks territorial jurisdiction and
consequently the said question ought to have been tried as a
preliminary issue, is bit difficult to countenance, regard being
4
had to the provisions incorporated in the Schedule to the Act,
more particularly, Order XV (A) concerning Case Management
Hearing which vests abundant discretion with the trial Judge
to treat the questions of the kind in a separate trial or not, as
mentioned in Rule 6(h) & (i); the submission of the petitioner
that the issue relating to territorial jurisdiction is required to
be treated as a preliminary issue in view of text of Rule 6(h),
is bit difficult to countenance when apparently such an issue
involves mixed questions of law and facts; such issues cannot
be treated as preliminary issue;
(c) the contention of the petitioner that the Division
Bench of this Court in M.F.A.No.1514/2018 (CPC) between
the parties vide judgment dated 30.10.2018 had required an
issue relating to territorial jurisdiction should be framed, is
true; however, further contention advanced as an off shoot
thereof that such an issue is directed to be treated as a
preliminary issue is not substantiated; at paras 9 & 10 of the
said judgment, the Bench observed as under:
“9. Considering the pleadings of both
the parties, the Trial Court has framed the
issues and proceeded with the trial on the
basis of the issues framed. However, it is
discernible that no issue s regards the
territorial jurisdiction of the Court to try the
suit has been framed despite preliminary
5
objection raised by the defendant/respondent
in the written statement. In the
circumstances, the core issue ought to have
been the territorial jurisdiction of the Court to
try the suit. In the absence of such an issue
being framed, any further proceeding by the
Trial Court are likely to be vitiated.
10. It is also apparent from the other
impugned that no specific finding has been
given as regards the question of cause of
action addressed by the parties, which goes
to the root of the matter as to decide the
jurisdiction of the Court to try the suit.”
The text & context of the aforesaid observations do not
support the said contention strenuously advanced by the
petitioner; the Bench only required framing of an issue for
being tried along with the rest.
4. The next contention vociferously advanced is that
when plural courts have jurisdiction, it is open to the parties
by agreement to designate one of the several courts to have
their lis adjudicated by, is not in dispute but a distinction has
to be drawn between the lack of jurisdiction and a mere error
in it’s exercise; the former strikes at the very root of the
matter since it is a case of want of jurisdiction/competence,
in which event, the outcome of the exercise is a nullity that
may be attacked even in collateral proceedings; on the other
6
hand, error of established jurisdiction stands on a different
footing; a mere error in exercise of jurisdiction does not vitiate
the legality or validity of the proceedings; the learned Authors
H.W.R.WADE & FORSYTH in their “ADMINISTRATIVE
LAW” TENTH EDITION (Oxford Publication) at pages 220
& 221 state as under:
“ Many judges have made a contrast between
jurisdictional questions determinable at the
outset and mere error made within
jurisdiction during the course of the inquiry.
Thus Lord Sumner said of a magistrate:
if his jurisdiction to entertain the charge is not
open to impeachment, his subsequent error,
however grave, is a wrong exercise of a
jurisdiction which he has, and not a
usurpation of jurisdiction which he has not.
And Lord Reid also once said:
If a magistrate or any other tribunal has
jurisdiction to enter on the inquiry and to
decide a particular issue, and there is no
irregularity in the procedure, he does not
destroy his jurisdiction by reaching a wrong
decision. If he has jurisdiction to go right he
has jurisdiction to go wrong. Neither an error
in fact nor an error in law will destroy his
jurisdiction… …”
5. An agreement between the parties to have their case
decided by one of several courts having jurisdiction does not
render other courts a destitute of competence since the
jurisdiction is vested by law and never by agreement, and
7
therefore cannot be ousted by such agreements of private
individuals; the courts would ordinarily respect such an
arrangement arrived at between the private individuals, is
true; however that is not on the premise that the jurisdiction
of the other Courts stands ousted by such an arrangement.
A great Judge of yester years, namely, Justice K.A.Swamy
having dealt with this aspect of the matter in M/S.
M.G.BROTHER LORRY SERVICE vs SHAMBALINGAPPA,
ILR 1979(2) Kar 2131 has observed as under:
“Where two Courts or more have, under the Code
of Civil Procedure jurisdiction to try a suit or
proceeding, an agreement between the parties to
the effect that the suit should be tried in one
such court, is not contrary to the public policy. It
is only by reason of an agreement that the suit
in such cases will have to be filed by the party in
the Court in which, as per the agreement, it is
required to be filed. But, such an agreement will
not take away the jurisdiction of the excluded
court to entertain suit. Even in the existence of
such an agreement, it is always open for the
excluded court to consider, having regard to the
facts and circumstances of the case, claim
involved in the suit, convenience of the parties
and the expenses to be incurred for the litigation,
as to whether it will be in the interest of justice
to direct the party to go to the other court named
in the agreement. If the excluded court having
regard to the aforesaid facts and circumstances
of the case, comes to the conclusion that by
directing the party which has approached the
said court to go to the other court named in the
agreement would be appressive and would
amount to denial of justice, it can very well
8
entertain the suit irrespective of there being an
agreement between the parties excluding the
jurisdiction of the said court. No doubt, parties
are bound by the agreement which they have
entered into but the courts are not obliged to
enforce such an agreement in every case if it
amounts to denial of justice to the party, which
the courts cannot afford to do as it would
undermine the very object of doing justice for
which the courts exist”.
6. The submission of the petitioner that the learned
trial Judge has adverted to an old decision of the Apex Court
i.e., S.S. Khanna Vs. F.J. Dillon, AIR 1964 SC 497,
regardless of legislative changes, again does not impress this
court, either; the Apex Court therein observed that the courts
should not try a suit on mixed questions of law and facts, as
preliminary issues; normally, the Apex court observed, all the
issues in a suit should be tried together, especially when the
decision on the issues even of law depends upon the
determination of issues of facts; whatever legislative changes
the new Act has brought about, has not robbed off the
efficacy of the ratio of the said decision; it may be old, but it is
said that “older the precedent, greater its value”.
7. The last contention that the court below ought to
have considered the question relating to the cause of action
as a preliminary issue in view of petitioner’s application
9
coupled with the observation of the Division Bench in the
aforesaid Miscellaneous First Appeal to does not come to the
aid of petitioner; even an issue relating to absence of cause of
action ordinarily arises from the basket containing a mixture
of law & facts which need to be tried, along with rest of the
issues; both the petitioner and the respondent will have full
opportunity to structure their version of the case by leading
evidence in support thereof; as already mentioned above, the
pleadings having been completed, the trial is half a through;
the learned trial Judge should make all endeavors to try and
dispose of the suit as expeditiously as possible of course with
the cooperation of the parties.
8. One more aspect on which both the sides have not
much argued needs to be adverted to; the impugned order is
a product of exercise of discretion by the court below
apparently in accordance with the rules of reason & justice;
what prejudice has been caused by the impugned order is
not forthcoming from the pleadings of the petitioner; a mere
assertion that the respondent ought to have brought the suit
in the court at Chennai is a matter relating to territorial
jurisdiction, which all civilized legal systems treat as not
going to the root of the matter; this apart, the pleadings of the
10
dominant litis namely the plaintiff decide the Forum; the Apex
Court in Abdulla Bin Ali And Ors. vs Galappa And Ors.,
AIR 1985 SC 577 at para 5 observed as under:
“ There is no denying of the fact that the allegations
made in the plaint decide the Forum. The
jurisdiction does not depend upon the defence
taken by the defendants in the Written
Statement…” .
It hardly needs to be stated that it is open to the petitioner-
defendant to prove his contentions by placing evidentiary
material on record so that the Court below will consider the
questions as to lack of jurisdiction and absence of choate
cause of action as well, after the accomplishment of the trial.
In the above circumstances, Writ Petition being devoid
of merits, is liable to be rejected, and accordingly it is.
However, the observation made herein above being
confined to the disposal of writ petition, shall not influence
the trial and decision making in the suit, since all contentions
of the parties are kept open.
No costs.
Sd/-
JUDGE
SSD
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 17 DAY OF FEBRUARY, 2020
BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 3887 OF 2020 (GM CPC)
BETWEEN:
R
TVS MOTOR COMPANY LIMITED
A COMPANY UNDER THE
COMPANIES ACT, 2013
HAVING ITS REGISTERED OFFICE AT:
NO.12, KHADER NAWAZ KHAN ROAD
NUNGAMBAKKAM, CHENNAI-600 006.
REP. BY MR. P. SUDHIR
…
AUTHORIZED SIGNATORY PETITIONER
(BY SRI.S. VIJAYASHANKAR, SR.ADVOCATES
ALONG WITH SRI. ANIRUDH, ADVOCATE)
AND:
KONGOVI PRIVATE LIMITED
A COMPANY UNDER THE COMPANIES ACT,2013
HAVING ITS REGISTERED OFFICE AT:
TH TH
NO.377, 10 CROSS, 4 PHASE
PEENYA INDUSTRIAL AREA
BENGALURU-560 058. ...RESPONDENT
(BY MISS. MANEESHA KONGVI FOR C/R1.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS, SET ASIDE THE ORDER DATED 07.02.2020
ANNEXURE-A PASSED ON I.A.NO.2/2019 IN COM
O.S.NO.2451/2010 ON THE FILE OF THE HON’BLE COURT OF
THE LXXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
2
BENGALURU (COURT HALL NO.84) AND PASS AN ORDER
ALLOWING I.ANO.2/2019 AS PRAYED AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner-Company being the defendant in a money suit
in Com.O.S.No.2451/2010 is knocking at the doors of writ
court for assailing the order dated 07.02.2020, a copy
rd
whereof is at Annexure-A, whereby the learned 83 Addl. City
Civil Judge, Bengaluru (CH-84) has dismissed its application
for treating the additional issue No.1 as to territorial
jurisdiction of the Court as a preliminary issue; the said
application in I.A.No.2 is filed u/s.15(4) & 16(2) of the
Commercial Courts Act, 2015 r/w various Orders and Rules
of CPC 1908, including Sec.151. Petitioner has also a
grievance as to non-consideration of its contention as to
absence of a choate cause of action.
2. The respondent-defendant Company having entered
caveat through its counsel opposes the writ petition making
submission in justification of the impugned order.
3
3. Having heard the learned counsel for the parties
and having perused the petition papers, this Court declines to
interfere in the matter for the following reasons:
(a) the money suit in question has been pending
adjudication since the year 2010; the claim is for a huge sum
of Rs.4,11,53,318.78 with interest at the rate of 15% per
annum; petitioner as the defendant having entered
appearance through its counsel has already filed the Written
Statement; recording of the evidence is also half way through;
new Parliamentary Legislation namely, the Commercial
Courts Act, 2015 providing for speedy disposal of commercial
disputes has come into force; the suit arguably involves a
commercial dispute and therefore it should see a speedy
determination, without the avoidable interdiction by way of
intermediary challenge, lest the very purpose of the new Act
should be defeated;
(b) the contention of the petitioner that in terms of
Condition 25 of the Purchase Conditions, the suit of the kind
could be instituted in the Courts situate only in Chennai and
therefore the Court below lacks territorial jurisdiction and
consequently the said question ought to have been tried as a
preliminary issue, is bit difficult to countenance, regard being
4
had to the provisions incorporated in the Schedule to the Act,
more particularly, Order XV (A) concerning Case Management
Hearing which vests abundant discretion with the trial Judge
to treat the questions of the kind in a separate trial or not, as
mentioned in Rule 6(h) & (i); the submission of the petitioner
that the issue relating to territorial jurisdiction is required to
be treated as a preliminary issue in view of text of Rule 6(h),
is bit difficult to countenance when apparently such an issue
involves mixed questions of law and facts; such issues cannot
be treated as preliminary issue;
(c) the contention of the petitioner that the Division
Bench of this Court in M.F.A.No.1514/2018 (CPC) between
the parties vide judgment dated 30.10.2018 had required an
issue relating to territorial jurisdiction should be framed, is
true; however, further contention advanced as an off shoot
thereof that such an issue is directed to be treated as a
preliminary issue is not substantiated; at paras 9 & 10 of the
said judgment, the Bench observed as under:
“9. Considering the pleadings of both
the parties, the Trial Court has framed the
issues and proceeded with the trial on the
basis of the issues framed. However, it is
discernible that no issue s regards the
territorial jurisdiction of the Court to try the
suit has been framed despite preliminary
5
objection raised by the defendant/respondent
in the written statement. In the
circumstances, the core issue ought to have
been the territorial jurisdiction of the Court to
try the suit. In the absence of such an issue
being framed, any further proceeding by the
Trial Court are likely to be vitiated.
10. It is also apparent from the other
impugned that no specific finding has been
given as regards the question of cause of
action addressed by the parties, which goes
to the root of the matter as to decide the
jurisdiction of the Court to try the suit.”
The text & context of the aforesaid observations do not
support the said contention strenuously advanced by the
petitioner; the Bench only required framing of an issue for
being tried along with the rest.
4. The next contention vociferously advanced is that
when plural courts have jurisdiction, it is open to the parties
by agreement to designate one of the several courts to have
their lis adjudicated by, is not in dispute but a distinction has
to be drawn between the lack of jurisdiction and a mere error
in it’s exercise; the former strikes at the very root of the
matter since it is a case of want of jurisdiction/competence,
in which event, the outcome of the exercise is a nullity that
may be attacked even in collateral proceedings; on the other
6
hand, error of established jurisdiction stands on a different
footing; a mere error in exercise of jurisdiction does not vitiate
the legality or validity of the proceedings; the learned Authors
H.W.R.WADE & FORSYTH in their “ADMINISTRATIVE
LAW” TENTH EDITION (Oxford Publication) at pages 220
& 221 state as under:
“ Many judges have made a contrast between
jurisdictional questions determinable at the
outset and mere error made within
jurisdiction during the course of the inquiry.
Thus Lord Sumner said of a magistrate:
if his jurisdiction to entertain the charge is not
open to impeachment, his subsequent error,
however grave, is a wrong exercise of a
jurisdiction which he has, and not a
usurpation of jurisdiction which he has not.
And Lord Reid also once said:
If a magistrate or any other tribunal has
jurisdiction to enter on the inquiry and to
decide a particular issue, and there is no
irregularity in the procedure, he does not
destroy his jurisdiction by reaching a wrong
decision. If he has jurisdiction to go right he
has jurisdiction to go wrong. Neither an error
in fact nor an error in law will destroy his
jurisdiction… …”
5. An agreement between the parties to have their case
decided by one of several courts having jurisdiction does not
render other courts a destitute of competence since the
jurisdiction is vested by law and never by agreement, and
7
therefore cannot be ousted by such agreements of private
individuals; the courts would ordinarily respect such an
arrangement arrived at between the private individuals, is
true; however that is not on the premise that the jurisdiction
of the other Courts stands ousted by such an arrangement.
A great Judge of yester years, namely, Justice K.A.Swamy
having dealt with this aspect of the matter in M/S.
M.G.BROTHER LORRY SERVICE vs SHAMBALINGAPPA,
ILR 1979(2) Kar 2131 has observed as under:
“Where two Courts or more have, under the Code
of Civil Procedure jurisdiction to try a suit or
proceeding, an agreement between the parties to
the effect that the suit should be tried in one
such court, is not contrary to the public policy. It
is only by reason of an agreement that the suit
in such cases will have to be filed by the party in
the Court in which, as per the agreement, it is
required to be filed. But, such an agreement will
not take away the jurisdiction of the excluded
court to entertain suit. Even in the existence of
such an agreement, it is always open for the
excluded court to consider, having regard to the
facts and circumstances of the case, claim
involved in the suit, convenience of the parties
and the expenses to be incurred for the litigation,
as to whether it will be in the interest of justice
to direct the party to go to the other court named
in the agreement. If the excluded court having
regard to the aforesaid facts and circumstances
of the case, comes to the conclusion that by
directing the party which has approached the
said court to go to the other court named in the
agreement would be appressive and would
amount to denial of justice, it can very well
8
entertain the suit irrespective of there being an
agreement between the parties excluding the
jurisdiction of the said court. No doubt, parties
are bound by the agreement which they have
entered into but the courts are not obliged to
enforce such an agreement in every case if it
amounts to denial of justice to the party, which
the courts cannot afford to do as it would
undermine the very object of doing justice for
which the courts exist”.
6. The submission of the petitioner that the learned
trial Judge has adverted to an old decision of the Apex Court
i.e., S.S. Khanna Vs. F.J. Dillon, AIR 1964 SC 497,
regardless of legislative changes, again does not impress this
court, either; the Apex Court therein observed that the courts
should not try a suit on mixed questions of law and facts, as
preliminary issues; normally, the Apex court observed, all the
issues in a suit should be tried together, especially when the
decision on the issues even of law depends upon the
determination of issues of facts; whatever legislative changes
the new Act has brought about, has not robbed off the
efficacy of the ratio of the said decision; it may be old, but it is
said that “older the precedent, greater its value”.
7. The last contention that the court below ought to
have considered the question relating to the cause of action
as a preliminary issue in view of petitioner’s application
9
coupled with the observation of the Division Bench in the
aforesaid Miscellaneous First Appeal to does not come to the
aid of petitioner; even an issue relating to absence of cause of
action ordinarily arises from the basket containing a mixture
of law & facts which need to be tried, along with rest of the
issues; both the petitioner and the respondent will have full
opportunity to structure their version of the case by leading
evidence in support thereof; as already mentioned above, the
pleadings having been completed, the trial is half a through;
the learned trial Judge should make all endeavors to try and
dispose of the suit as expeditiously as possible of course with
the cooperation of the parties.
8. One more aspect on which both the sides have not
much argued needs to be adverted to; the impugned order is
a product of exercise of discretion by the court below
apparently in accordance with the rules of reason & justice;
what prejudice has been caused by the impugned order is
not forthcoming from the pleadings of the petitioner; a mere
assertion that the respondent ought to have brought the suit
in the court at Chennai is a matter relating to territorial
jurisdiction, which all civilized legal systems treat as not
going to the root of the matter; this apart, the pleadings of the
10
dominant litis namely the plaintiff decide the Forum; the Apex
Court in Abdulla Bin Ali And Ors. vs Galappa And Ors.,
AIR 1985 SC 577 at para 5 observed as under:
“ There is no denying of the fact that the allegations
made in the plaint decide the Forum. The
jurisdiction does not depend upon the defence
taken by the defendants in the Written
Statement…” .
It hardly needs to be stated that it is open to the petitioner-
defendant to prove his contentions by placing evidentiary
material on record so that the Court below will consider the
questions as to lack of jurisdiction and absence of choate
cause of action as well, after the accomplishment of the trial.
In the above circumstances, Writ Petition being devoid
of merits, is liable to be rejected, and accordingly it is.
However, the observation made herein above being
confined to the disposal of writ petition, shall not influence
the trial and decision making in the suit, since all contentions
of the parties are kept open.
No costs.
Sd/-
JUDGE
SSD