TMI Blog2017 (12) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... hed and set aside hereby with a direction to the learned 5th Additional Senior Civil Judge, Gandhidham to deal with and decide the application at Exhibit11 submitted under Order 7 Rule 11 of the Code of Civil Procedure afresh by extending proper opportunities to the respective parties appearing in the suit and shall pass a reasoned order dealing with rival contentions in the proceedings. - Civil Revision Application No. 469 of 2015 - - - Dated:- 15-12-2017 - MR A.J. SHASTRI For The Applicant : Mr Anand B Gogia, Advocate, Mr Bb Gogia, Advocate And Mr Rb Gogia, Advocate For The Opponent : Mr Paresh M Darji, Advocate And Mr. Nehal N Shah, Advocate ORAL ORDER 1. RULE . Learned advocate Mr. Paresh M. Darji waives service of rule on behalf of the respondent. With the consent of the parties, the matter is taken up for final hearing today. 2. By way of present civil revision application, the applicants have challenged the legality and the validity of the order dated 12.10.2015 passed below Exhibit11 in Special Civil Suit No. 11 of 2015. 3. The premise on which the present civil revision application is filed is that the original plaintiff has filed a suit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outstanding as a result of which, the a suit came to be filed being Special Civil Suit No. 11 of 2015 in the Court of learned Principal Senior Civil Judge, Gandhidham at Kutch. This suit has been filed under Order 37 of Code of Civil Procedure for summary suit. 3.1. It appears from the record that upon receipt of the summons from the Court leave to defend has been filed, under Order 37 Rule 3(5) of the Code of Civil Procedure for seeking unconditional leave to defend on the premises which are stated in their application which was registered as application at Exhibit15. Simultaneously, the present defendants have also submitted an application at Exhibit11 that is prior to leave to defend application for rejecting the plaint under Order 7 Rule 11 (a) (d) of the Code of Civil Procedure. The main thrust of the contention is that there is no cause of action reflecting from the bare reading of the plaint and the suit is barred by law. As a result of which, the application under Order 7 Rule 11 (a) (d) of the Code of Civil Procedure is filed at Exhibit11 prior to submitting leave to defend application. 3.2. This application appears to have been dealt with by the learned trial Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is at Gandhidham such place would not invest jurisdiction in the Court at Gandhidham. It has also been contended specifically that the agreement which have taken place between the parties with regard to the transaction in question is not in dispute is already reflecting subjected to Mumbai jurisdiction and therefore, when the parties have chosen on their own volition the jurisdiction that of Mumbai Court, this Court at Gandhidham has no jurisdiction to entertain. In addition thereto, learned advocate Mr. Gogia has further submitted that even with respect to dishonor of cheques and the endorsement Account Closed , despite the criminal complaint which has been filed are filed at Mumbai and not at Gandhidham, in view of the specific understanding that every transaction is subjected to Mumbai jurisdiction and, therefore, in any case, the Court at Gandhidham would not have been approached for the grievance raised in the plaint. 4.1. Mr. Gogia learned advocate has further submitted that even the relevant company i.e. Sanman Impex Pvt. Ltd. has not been the party and the application is submitted simultaneously along with an application for seeking leave to defend and, therefore, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Asian Region Limited v. Kunvar Ajay Foods Pvt. Ltd., reported in 2009 (1) GLH 590 and thereby has contended that serious error of law is committed by the learned Judge which requires intervention of this Court in revisional jurisdiction. No other submissions have been made. 6. To meet with the stand taken by learned advocate for the applicants, Mr. P.M. Darji learned advocate have vehemently objected and submitted that not only Email exchange, but the other part of the cause of action has arisen at Kandla. It has also been pointed out that the delivery of the goods and its destination was transporter from Kandla and further it has been submitted that why and how the cause of action has arisen to bring the suit. Mr. Darji learned advocate appearing for the respondent has submitted that a systematic cheating has been executed against the plaintiff company by the present applicants and others and the cheques which have been given in lieu of delivery of the goods have been returned with an endorsement Account Closed and therefore, the plaintiff company was required to file a criminal complaint at Mumbai since the registered office is situated at Mumbai. While contending th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to deal with the other issue of cause of action as there appears to be no cogent reason on this issue and therefore, leaving it open. However, the learned Judge was of the opinion that the application under Order 7 Rule 11 of the Code of Civil Procedure cannot be entertained then by just adding line that, the suit disclosed the cause of action, the application cannot be rejected in this manner. This reason, how it is erroneous and perverse is reflecting from para 22 of the aforesaid decision i.e. Satellite Television Asian Region Ltd., (supra) which appears to have been not properly considered by the learned trial Judge. The relevant observations in specific terms are reproduced hereinafter and has taken into assistance by this Court. 22. It is also required to be noted that even the application submitted by the defendants to dismiss the suit under Order 7 Rule 11 of the Code of Civil Procedure were pending, but the learned trial court did not decide the same on the grounds that such an application is not required to be decided before an application for leave to defend. It appears that there also the learned trial court has committed an error. Application under Order 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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