Dismissed

M/S.Netrine Confecti v. Smt.K.Renuka

Orissa HC8 Sept 2023WP(C)/25015/2012

Case brief

AI extract

What is this about?

High Court of Orissa dismissed a writ petition challenging an order where the trial court refused to decide territorial jurisdiction at the threshold. The court upheld the trial court's view that jurisdiction issues requiring evidence scrutiny should be decided during the trial to avoid piece-meal adjudication.

What did the court decide?

Writ petition dismissed. Interim order vacated. Suit to be disposed of at earliest by trial court.

M/S.Netrine Confecti Vs Smt.K.Renuka — Civil Procedure and Limitation | Orissa HC (2023)

¶1

Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 08-Sep-2023 18:32:54

¶2

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶3

W.P.(C) No. 25015 OF 2012

¶4

(An application under Articles 226 and 227 of the Constitution of India)

¶5

¶6

M/s. Netrine Confectionary Ltd., Andhra Pradesh …… Petitioner -VersusSmt. K. Renuka .…… Opp. Party

¶7

Advocates appeared :

¶8

For Petitioner : Mr. Kalyan Pattnaik, Advocate

¶9

For Opp. Party : Mr. S.S. Rao, Senior Advocate
being assisted by
Mr. Brahmananda Tripathy, Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
------------------------------------------
Delivered on 08.09.2023
-----------------------------------------
JUDGMENT
K.R. Mohapatra, J.

¶10

1. This matter is taken up through hybrid mode.

¶11

2. Order dated 11^th October, 2012 (Annexure-5) passed by learned 1^st Additional Civil Judge (Senior Division), Cuttack in Civil Suit No. 175 of 2008 is under challenge in this writ petition, whereby an application filed by the Defendant No.1-Petitioner to hold that the said Court lacks territorial jurisdiction to try the suit, was dismissed.

¶12

Page 1 of 7

¶13

W.P. (C) NO. 25015 of 2012

¶14

// 2 //

¶15

Signature Not Verified

¶16

Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 08-Sep-2023 18:32:54

¶17

3. Opposite Party as Plaintiff filed the suit for realization of Rs.11,78,000/- from the Defendant-Petitioner along with an interest at the rate of 12% per annum. The Defendant No.1Petitioner filed written statement denying its liability to pay the amount. The Petitioner also filed an application (Annexure-3) to decide the issue of territorial jurisdiction of learned trial Court to try the suit at the threshold on the ground that Clause-26 of the agreement, which was mutually agreed upon by the parties and basing upon which the suit is filed, clearly stipulates that ‘all disputes that may arise with regard to this agreement shall be subject to Chittor (A.P.) Court jurisdiction only.’ Thus, learned trial Court lacks jurisdiction to try the suit. Learned trial Court without deciding the issue at the threshold held that the issue of territorial jurisdiction can be taken up simultaneously along with other issues in the suit for effective adjudication. It, accordingly, rejected the petition filed by the Defendant-Petitioner vide order under Annexure-5. Assailing the said order, this writ petition has been filed.

¶18

4. Mr. Pattnaik, learned counsel for the Petitioner submitted that the suit is filed by the Opposite Party for realization of money, which is allegedly due to her as per the terms and condition of the agreement, as aforesaid. Thus, the present dispute arose from the agreement and hence, only competent civil Court at Chittor (A.P.) has territorial jurisdiction to try the suit. As such, learned Civil Judge (Senior Division), Cuttack has no jurisdiction to try the suit. This material aspect could not be appreciated by learned trial Court. It is his submission that no evidence is required to be

¶19

Page 2 of 7

¶20

W. P. (C) NO. 25015 OF 2012

¶21

// 3 //

¶22

Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 08-Sep-2023 18:32:54

¶23

adduced by the parties for adjudication of the issue of territorial jurisdiction in the instant case. As such, learned trial Court has committed gross error of law in not considering the issue of territorial jurisdiction of the Court to try the suit at the threshold. He, therefore, prayed for setting aside the order under Annexure-5 and remit the matter to learned trial Court to adjudicate the issue of territorial jurisdiction of that Court to try the suit at the threshold. In support of his submission, Mr. Pattnaik, learned counsel relied upon the case of New Moga Transport Company -v- United India Insurance Co. and others , reported in AIR 2004 SC 2154, wherein it is held as under:-

¶24

“14. By a long series of decisions it has been held that where two courts or more have jurisdiction under CPC to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in any one of such courts is not contrary to public policy and in no way contravenes Section 28 of the Indian Contract Act, 1872. Therefore, if on the facts of a given case more than one court has jurisdiction, parties by their consent may limit the jurisdiction to one of the two courts. But by an agreement parties cannot confer jurisdiction on a court which otherwise does not have jurisdiction to deal with a matter. [See Hakam Singh v. Gammon (India) Ltd. [(1971) 1 SCC 286: AIR 1971 SC 740] and Shriram City Union Finance Corpn. Ltd. v. Rama Mishra [(2002) 9 SCC 613: AIR 2002 SC 2402].

¶25

xxx xxx xxx xxx 19. The intention of the parties can be culled out from use of the expressions “only”, “alone”, “exclusive” and the like with reference to a particular court. But the intention to exclude a court's jurisdiction should be reflected in clear, unambiguous, explicit and specific terms. In such case only the accepted notions of contract would bind the parties. ……….”

¶26

Page 3 of 7

¶27

W. P. (C) NO. 25015 OF 2012

¶28

// 4 //

¶29

Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 08-Sep-2023 18:32:54

¶30

5. He also relied upon the case of Swastik Gases Private Limited –v- Indian Oil Corporation Limited reported in (2013) 9 SCC 32, wherein it is held as under;

¶31

“32. ……… The intention of the parties—by having Clause 18 in the agreement—is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.

¶32

xxx xxx xxxx xxxx 37. In my opinion, the very existence of the exclusion of jurisdiction clause in the agreement would be rendered meaningless were it not given its natural and plain meaning. The use of words like “only”, “exclusively”, “alone” and so on are not necessary to convey the intention of the parties in an exclusion of jurisdiction clause of an agreement. Therefore, I agree with the conclusion that jurisdiction in the subject-matter of the proceedings vested, by agreement, only in the courts in Kolkata.

¶33

xxx xxx xxxx xxxx 40. There is really no difficulty in interpreting the exclusion clause in the first set of decisions. The clause in these decisions generally uses the word “alone” and, therefore, it is quite obvious that the parties have, by agreement, excluded the jurisdiction of courts other than those mentioned in the agreement…….”

¶34

Mr. Patnaik, learned counsel, therefore submitted that the impugned order is not sustainable and is liable to be set aside.

¶35

Page 4 of 7

¶36

W. P. (C) NO. 25015 OF 2012

¶37

// 5 //

¶38

Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 08-Sep-2023 18:32:54

¶39

6. Mr. Rao, learned Senior Advocate appearing on behalf of the Opposite Party referred to Section 21 of CPC and submitted that the issue of jurisdiction of the Court should be raised at the earliest possible opportunity. In the instant suit, the Petitioner has already filed its written statement submitting it to the jurisdiction of learned trial Court. Thus, it is no more available to be raised by the Defendant-Petitioner as the petition under Annexure-3 was filed after the settlement of issues. Thus, learned trial Court has committed no error in rejecting the petition. It is his submission that there is no material on record to come to a conclusion that if the issue of territorial jurisdiction of the Court is not decided at the threshold, it will cause failure of justice. Hence, the writ petition is liable to be dismissed and the Plaintiff-Opposite Party may be permitted to adduce evidence in the suit.

¶40

7. Heard learned counsel for the parties and perused the case record as well as the case law placed before this Court.

¶41

8. Admittedly, Clause-26 of the agreement executed between the parties clearly stipulates that all disputes arising out of the said agreement will be subject to the jurisdiction of Court at Chittor (A.P.) only. It appears from the agreement at Annexure-2 to the writ petition that it was executed at Chittor (A.P.) on 1^st April, 2000 appointing one ‘ Rasi Trade Syndicate ’, a partnership firm as the clearing and forwarding agent of the DefendantCompany. Said Rasi Trade Syndicate ordinarily carries on its business at Cuttack. But, the issue is whether in view of Clause-26 of the agreement the Court at Cuttack should decide the issue of territorial jurisdiction to try the suit at the threshold.

¶42

Page 5 of 7

¶43

W. P. (C) NO. 25015 OF 2012

¶44

// 6 //

¶45

Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 08-Sep-2023 18:32:54

¶46

9. Law is no more res integra, if two or more Courts have jurisdiction to adjudicate upon a dispute between the parties and by consent both the parties chose one of such Court to decide a dispute between them, then the jurisdiction of all other Court is ousted. Such an agreement is not hit by Section 23 of the Contract Act. The law on this aspect has already been settled in the abovementioned case law.

¶47

10. In the instant case, the petition under Annexure-3 was filed at a stage when the suit was posted for evidence of the Plaintiff, as a last chance, i.e., on 6^th August, 2010. Written statement filed by the Defendant No.1- Petitioner is not available in the case record. There is also no other material on record to hold that the issue of territorial jurisdiction of the Court was raised at the earliest possible opportunity. The Petitioner also failed to make out a case that non-consideration of the issue of territorial jurisdiction would result in failure of justice as provided under Section 21 CPC. It is, more so, because learned trial Court held that the issue of territorial jurisdiction of the said Court will be considered along with other issues. Adjudication of issue of territorial jurisdiction may require scrutiny of evidence on record, as held by learned trial Court.

¶48

11. When the suit is ripe for trial and it is posted for evidence of the Plaintiff, adjudication of the issue of territorial jurisdiction of the Court will certainly be a piece-meal trial of the suit, as rightly held by learned trial Court.

¶49

Page 6 of 7

¶50

W. P. (C) NO. 25015 OF 2012

¶51

// 7 //

¶52

Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 08-Sep-2023 18:32:54

¶53

12. Hence, this Court is not inclined to interfere with the impugned order under Annexure-5. As the suit is of the year, 2008, learned trial Court should make all endeavor to see that the suit is disposed of at the earliest. No unnecessary/long adjournment shall be granted to any of the parties to the suit. Parties shall co-operate with learned trial Court for early disposal of the suit. Learned trial Court is also at liberty to take coercive measure in accordance with law, if any of the parties does not cooperate with it.

¶54

13. The writ petition is, accordingly, dismissed. But, there shall be no order as to cost.

¶55

14. Interim order dated 14^th February, 2013 passed in Misc. Case No. 21542 of 2012 stands vacated.

¶56

Urgent certified copy of this judgment be granted on

¶57

proper application.

¶58

Orissa High Court, Cuttack, Dated 8^th September, 2023

¶59

¶60