Dismissed

Siddharth Organics Industries through Proprietor Sunil B Das v. Atul Ltd.

Gujarat HC2 Aug 2018SA/181/2018

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by an original defendant against a decree for monetary recovery. Addressing jurisdiction questions raised as substantial questions of law, the court held that jurisdiction is not a substantial question unless there is inherent lack thereof. Relying on concurrent findings by lower courts that jurisdiction existed based on commercial correspondence in

What did the court decide?

Second appeal dismissed; Civil Application disposed_of without independent disposal.

Siddharth Organics Industries through… — Contract and Commercial Disputes | Gujarat HC (2018)

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C/SA/181/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SECOND APPEAL NO. 181 of 2018

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With

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CIVIL APPLICATION NO. 1 of 2018

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SIDDHARTH ORGANICS INDUSTRIES THROUGH PROPRIETOR SUNIL B DAS

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Versus ATUL LTD

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Appearance:

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MR MANISH S SHAH(5859) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 02/08/2018

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ORAL ORDER

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This Second Appeal under Section 100 of the CPC is at the instance of the original defendant and is directed against the judgment and order dated 23.12.2017 passed by the Principal District Judge, Valsad, in the Regular Civil Appeal No.56/2007 arising from the judgment and decree dated 11.07.2007 passed by the 4^th Additional Senior Civil Judge and JMFC, Valsad, in the Special Civil Suit No. 139/2001 filed by the respondent herein for recovery of Rs. 3,85,285/- from the appellant herein.

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It appears from the materials on record that the appellant herein is in the business of trading of chemicals. The

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C/SA/181/2018 ORDER

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respondent herein – original plaintiff is a company registered under the Companies Act and is engaged in the business of manufacturing of chemicals. It is not in dispute that the appellant purchased goods from the respondent- company. It is also not in dispute that the goods were delivered to the appellant herein. However, according to the appellant, he is not liable to pay anything to the respondent as the goods which were sent and received by the appellant herein were of substandard quality.

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Having regard to the pleadings of the parties, the trial court framed the following issues:

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“1. Whether the plaintiff proves that plaintiff is entitled to recover Rs.3,85,285/- from the defendants ?

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2. Whether the plaintiff proves that the plaintiff is entitled to get interest ? If yes, at what rate ?

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3. What Order and Decree ?”

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The issues framed by the trial court referred to above came to be answered as under:

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“1. Partly in the affirmative.

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2. Partly in the affirmative.

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3. As per final order.”

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C/SA/181/2018 ORDER

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The trial Court, ultimately, partly allowed the suit filed by the plaintiff. The trial Court passed a decree of Rs.2,70,025/(Rupees Two Lakh Seventy Thousand Twenty-five Only) with 9% interest from 26.02.1999 till the realisation of the entire decreetal amount.

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Being dissatisfied by the judgment and decree passed by the trial Court, the appellant herein original defendant preferred the Regular Civil Suit No.56/2007 in the District Court at Valsad. The lower appellate court framed the following points for determination :

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“(1) Whether the defendant proves that the goods purchased from the plaintiff were of substandard quality ?

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(2) Whether the plaintiff is entitled to interest @ 20% on the principal amount of purchase of the goods ?

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(3) Whether the trial Court had the jurisdiction to try the suit ?

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(4) Whether the trial Court committed any error in appreciation of the evidence or omit to consider any important piece of evidence rendering the judgment and decree passed by the trial Court, illegally ?”

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The lower appellate Court, upon reappreciation of the

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C/SA/181/2018 ORDER

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entire evidence on record, ultimately dismissed the appeal, thereby affirming the judgment and decree passed by the trial Court in favour of the plaintiff.

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Being dissatisfied with the judgment and decree passed by the lower appellate court, the appellant - original defendant is here before this Court with the present Second Appeal under Section 100 of the CPC.

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The following questions have been formulated in the memorandum of the Second Appeal as the substantial questions of law.

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“1. Whether the court below has not grossly erred in considering the facts that the proceedings initiated by the respondent herein was at Valsad whereas the appellant company is located in Bhiwandi, Mumbai and order was placed from Mumbai to Head office of respondent at Ahmedabad and goods were supplied from Aeromatic Division, GIDC, Ankleshwar, factory of respondent and therefore, the Civil Court, Valsad has no jurisdiction to entertain the suit.

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2. Whether the both the Courts below have not erred in considering the bar of jurisdiction to entertain the suit by the Civil Court at Valsad in the facts and circumstances of the case ?

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C/SA/181/2018 ORDER

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3. Whether the lower appellate court has not erred in deciding the issue of jurisdiction for the first time at appellate stage and not remanding the matter to the trial court for the said purpose ?

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4. Whether the lower appellate court can frame a new issue which was not framed by the trial court and decide it ?”

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Mr. Manish S. Shah, the learned counsel appearing for the appellant - original defendant vehemently submitted that the Courts below erred in taking the view that the suit filed by the plaintiff for recovery of money was maintainable in the Civil Court at Valsad. According to Mr. Shah, no cause of action could be said to have arose in any manner within the territorial limits of the Civil Court at Valsad. Mr. Shah submitted that although a specific issue with regard to the jurisdiction has not been framed by the trial Court, yet the trial Court did touch this issue and ultimately recorded a finding that it had the jurisdiction to try the suit. Mr. Shah submitted that he is confining his case in this Second Appeal only to the issue of jurisdiction.

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Having heard the learned counsel appearing for the appellant - original defendants and having gone through the materials on record, the only question that falls for my

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C/SA/181/2018 ORDER

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consideration is, whether this Second Appeal involves any substantial question of law.

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At the outset, I may say that the issue of jurisdiction can never be a substantial question of law unless the case is one of inherent lack of jurisdiction. At best, it can be termed as a mixed question of law and fact. The issue of jurisdiction would assume importance even at the stage of Second Appeal, provided the appellant is able to point out that while considering the same, the Courts below have overlooked or ignored or misappreciated the evidence on record. In such circumstances, let me go straight to the findings recorded by the trial Court as regards jurisdiction.

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“(8) In this case, looking to the evidence of the parties, the Plaintiff himself (witness of Plaintiff) has admitted in his cross-examination that, it is stated on seeing the lorry receipt of Mark 48/1 of Vijay Transport that the goods was sent from Atul Ltd., Ankleshwar to Respondent Company at Bhivandi, which clearly transpires from Exhibit – 'A'. In this case, in Exhibit – 'B' of gate pass cum delivery challan, no signature of the receiver of the goods was obtained for receipt of the same. Respondent had produced purchase order vide Exhibit – 'C', original of which was admitted by the Advocate of the Plaintiff, along with specification accompanying it, which

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C/SA/181/2018 ORDER

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specification has been admitted vide Exhibit – 'D' in the cross-examination of the witness of the Plaintiff. The witness of the Plaintiff has also admitted Form No. 45(A) in his cross-examination. On seeing it, the goods was sent from Ankleshwar to Bharuch, which was sent to the godown of Respondent Company Ganesh Corporation at Bhivandi. It clearly transpires that the said Form No. 45(A) is regarding declaration of the Plaintiff regarding Sales Tax. It is Exhibit – 'E' and the witness of the Plaintiff has admitted it in his cross-examination. Looking to the gate pass cum delivery challan vide Exhibit – 'B', 'Subject to Valsad jurisdiction' is shown in the lower portion of it. If we see in this way, it transpires that the correspondence between the parties was made by the Respondent to the Plaintiff Company most of the time at Valsad Office. I believe that this Court has jurisdiction to try this suit on the above facts and I do not discuss the Judgments produced by the Ld. Advocate for the Respondent, Shri J.G. Desai, reported in AIR-1992Kerala-333 and 1971 Supreme Court 740. It is pertinent to note in this case that the letters written by the Respondent to the Plaintiff have not been produced by the Respondent. (Office copy of the letters). Moreover, no representative of Ganesh Corporation on behalf of the Respondent has been examined. Therefore, the facts against the Respondent are not proved that there was leakage in drums and as it was dangerous, the Respondent destroyed it. Comparatively looking to the evidence of the above parties and according to the discussion

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C/SA/181/2018 ORDER

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made considering that evidence, the Plaintiff has proved that the Plaintiff is entitled to recover the part of the principle amount Rs. 2,70,025 from 26/2/1999 with interest, but the Plaintiff has demanded the principle amount with the interest of 20%, which is exaggerative. Moreover, I hold that the Plaintiff is entitled to recover 9% interest from the Respondent in absence of contract. I hereby give my reply of Issue No. 1 and 2 partly in affirmative.”

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The findings recorded by the trial Court, referred to above, came to be affirmed by the lower appellate court, holding as under:

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“(11) If record of the Lower Court is seen in this regard, a letter vide Exhibit-82 of Respondent Company addressed to the office of Plaintiff at Valsad has been produced. Looking to this letter, the Respondent had placed a purchase order of the goods in question before the Plaintiff in this letter. He has stated in that letter that the said goods may be dispatched to the place of the Respondent at Bhivandi through Vijay Transport. Thus, if we look at the facts of the said letter, the Respondent firm has placed an order of goods before the Company/office of the Plaintiff named M/s Atul Limited and in this way, a contract has been made to purchase goods at the above said office of the Plaintiff at Valsad. Thus, it is clarified from the record that out of the grounds for breach of contract, one part has also been raised at

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C/SA/181/2018 ORDER

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Valsad and, therefore, the argument of Learned Advocate for the Respondent that the Court at Valsad did not have jurisdiction to try original suit is not admissible. Therefore, it is clearly proved that the Court at Valsad was having jurisdiction to try the suit. Hence, it cannot be stated that the suit of the Plaintiff does not have bar of jurisdiction, therefore, accordingly, the answer of Issue No. 3 is given in negative.”

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Having regard to the concurrent findings recorded by the

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two courts below on the issue of jurisdiction, I am of the view that no case is made out for interference in this Second Appeal. The findings recorded by the two courts below are not perverse in any manner. I do not find any jurisdictional infirmity in the two orders of the Courts below. In such circumstances, this Second Appeal fails and is hereby dismissed. As the Second Appeal has been dismissed, the Civil Application would also not survive and the same is disposed of.

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(J.B.PARDIWALA, J)

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MAYA

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Siddharth Organics Industries through Proprietor Sunil B Das v. Atul Ltd.

Case brief

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Siddharth Organics Industries through Proprietor Sunil B Das v. Atul Ltd.

Case brief

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