TMI Blog2013 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay High Court; merely because bank guarantee was executed at Delhi and transmitted for performance to Bombay, it does not constitute a cause of action to give rise to the respondent to lay the suit on the original side of the Delhi High Court…………” In the present case too, the MOA was executed at Kolkata and the performance of the contract was to be carried out in West Bengal. Merely because invoices were raised from New Delhi or payments were made by the plaintiff on account of service tax/education cess at New Delhi, are not sufficient to clothe this court with jurisdiction - Parties was to confine the jurisdiction to Kolkata only. - CS (OS) 276/2012 - - - Dated:- 29-7-2013 - Vipin Sanghi,JJ. For the Plaintiff : Mr. Amit Dayal, Advocate For the Respondent : Ms. Manisha Parmar, Advocate JUDGMENT Vipin Sanghi, J. IA No.6224/2013 1. This application has been filed by the Defendant under Order VII, Rule 11 of the Civil Procedure Code, 1908 (CPC for short) for rejection of the plaintiff‟s suit for recovery of amount of Rs 88,80,107, on the grounds that this Court is not vested with the territorial jurisdiction to try this Suit. 2. The Plaintiff is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax, New Delhi, confirming that service tax was leviable on the entire contract. Thereafter, the defendant confirmed to the plaintiff vide acknowledgement dated 31.12.2008, its liability to reimburse the plaintiff for service tax payments. 5. Having received no payment from the defendant despite service of a legal notice, the plaintiff filed the present suit for recovery of the amount paid by the plaintiff on account of service tax/education cess, and the earnest money deposited by the plaintiff - which was liable to be refunded on expiry of the contract dated 22.08.2001. 6. The submission of the applicant-defendant is that the Jurisdiction Clause in the MOA dated 22.08.2001 between the plaintiff and the defendant reads as this agreement will be subject to jurisdiction of Calcutta Courts . The defendant submits that by virtue of the aforesaid clause, this court has no jurisdiction to try the present suit, as the parties have vested jurisdiction in Kolkata and, therefore, the plaint is liable to be rejected. The defendant-applicant submits that even otherwise, without prejudice to the above argument, as per Section 20 (c) of the CPC, part of cause of action must arise in N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only, 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius' -expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. (emphasis supplied) 10. The aforesaid decision makes it clear that even in the absence of the words only , exclusively etc, the intention of the parties to vest, or oust the jurisdiction of a particular court must be examined as it could be a case of expression of one is the exclusion of another. In Hani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices raised by the plaintiff (from where ever they may have been raised) which gives rise to cause of action. 12. The plaintiff‟s averment that the invoices were payable at Delhi is not supported from the material on record. No doubt, in A.B.C. Laminart (supra), the court observed that part of cause of action arises where money is expressly or impliedly payable, however, a perusal of the MOA shows that there is not a whisper of which place the money is payable at. The payment would be released by the Defendant from its office in Kolkata. It has not been pleaded by the Plaintiff that the Defendant was obliged to, or has, in fact, released or made payment from its office in Delhi. 13. As far as an implied inference regarding where the money is payable is concerned, all correspondence between the plaintiff and the defendant was issued from the plaintiff‟s head office in Gurgaon. The communication of the acceptance of the contract was also made vide a letter sent by the defendant from Kolkata to the plaintiff‟s head office in Gurgaon. It is settled law, that as regards acceptance of a contract via letters, the place of formation of a contract is the place where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned." 17. The place where the plaintiff made payments on account of service tax and education cess is not the subject matter of the suit, and only happens to be incidental to the claim of the plaintiff. It is not shown that these payments could have been deposited only at Delhi. What is of relevance is that factum of deposit, not the place of deposit. Therefore these are not facts sufficient to clothe this court with jurisdiction. In Rattan Singh Associates (P) Ltd. v. Gill Power Generation Company (P) Ltd., 2009(93) DRJ431, a single bench of this court examined various decisions of the Supreme Court and observed that It also requires to be borne in mind that a trivial or insignificant part of the cause of action arising at a particular pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. The cause of action means, therefore, every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. In view of the admitted position that contract was executed in Bombay, i.e., within the jurisdiction of the High Court of Bombay, performance of the contract was also to be done within the jurisdiction of the Bombay High Court; merely because bank guarantee was executed at Delhi and transmitted for performance to Bombay, it does not constitute a cause of action to give rise to the respondent to lay the suit on the original side of the Delhi High Court. The contention that the Division Bench was right in its finding and that since the bank guarantee was executed and liability was enforced from the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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