-1- IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITON NO. 18357 OF 2024 (GM-CPC) BETWEEN 1 . NARENDRA SWAIN AND CO FRUITS AND VEGETABLE COMMISSION AGENT CHHATRA BAZAR, CUTTACK 781014 REP BY ITS AUTHORIZED PERSON MR. NARENDRA SWAIN MICRO SMALL & MEDIUM ENTERPRISES 2 . MR. NARENDRA SWAIN AGED ABOUT 63 YEARS S/O LATE MAHENDRA SWAIN PARTNER NARENDRA SWAIN AND CO., OFFICE AT CHHATRA BAZAAR, CUTTACK 781014 3 . MR. JAHENDRA SWAIN AGED ABOUT 60 YEARS S/O LATE MAHENDRA SWAIN PARTNER NARENDRA SWAIN AND CO., OFFICE AT CHHATRA BAZAAR, CUTTACK 781014 4 . MR. RABINDRA KUMAR SWAIN AGED ABOUT 43 YEARS S/O SURENDRA SWAIN PARTNER NARENDRA SWAIN AND CO., OFFICE AT CHHATRA BAZAAR, CUTTACK 781014 ...PETITIONERS (BY SRI. BISWAJIT DAS., ADVOCATE A/W SRI. SHIVAKUMAR., ADVOCATE) -2- AND M/S SKL GRAPES A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 270, 36 A CROSS 7TH BLOCK, JAYANAGAR BENGALURU 560 082 REP BY ITS PARTNER MS. KOMALA K …….RESPONDENT (BY SRI. A. SAMPATH., ADVOCATE ) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN COM. OS 1458/2023, PENDING ON THE FILE OF HONBLE COURT OF LXXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL COURT) (CCH-85) AND TO SET ASIDE THE ORDER DATED 10/06/2024 MADE IN IA NO. 1 IN COM. OS NO. 1458/2023, VIDE ANNEXURE-A. PASSED BY LXXXIV ADDL CITY CIVIL AND SESSION JUDGE (COMMERCIAL COURT) AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 03.09.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE R DEVDAS CAV ORDER (PER: HON'BLE MR JUSTICE R DEVDAS) This writ petition is filed by the petitioners who were defendants before the Commercial Court, Bengaluru, being aggrieved of the rejection of their interlocutory application -3- filed under Order VII Rule 11(a) of the Code of Civil Procedure, 1908. For the sake of convenience, the parties shall be referred to in terms of their ranking before the Commercial Court. 2. The plaintiff filed the suit in Com.O.S.No.1458/2023 seeking judgment and decree against the defendants for a sum of Rs.69,36,913/-, which payment fell due from the defendants in respect of supply of fruits made by the plaintiff to the defendants. When the evidence of the plaintiff witnesses was being recorded, the said interlocutory application under Order VII Rule 11(a) of CPC, was filed by the defendants for rejection of the plaint on the ground that there is no cause of action and for want of territorial jurisdiction. It was contended by the defendants that there was no written contract between the parties and at no point of time, did the defendants have any transaction with the plaintiffs at Bengaluru. It was contended that the defendants were carrying on business through the commission agents of various persons and entities, including the plaintiffs, at Cuttack in Odisha. It was further contended that even as per -4- the invoices tendered as evidence at the hands of the plaintiff, issued by the defendants, it was clear that the transaction would be subject to Cuttack jurisdiction. However, the Commercial Court passed the impugned order, rejecting the application and therefore, the defendants are before this Court, invoking Article 226 of the Constitution of India. It should be noticed that from the facts narrated hereinabove, it is clear that the petitioners herein should have invoked Article 227 and not Article 226. 3. Learned Counsel for the defendants vehemently contended that the Trial Court has erred in accepting the contentions of the plaintiff that in terms of Section 20(c) of the Code of Civil Procedure, the suit could be instituted in Bengaluru, since part of the cause of action arose in Bengaluru. It is submitted that no part of the cause of action arose in Bengaluru, since admittedly, the defendants never came to Bengaluru seeking supply of fruits. It is contended that the plaintiff is in the business of supplying fruits to various parts of the country and the defendants, who are carrying on business at Cuttack, approached the commission -5- agents of the plaintiff who are in Cuttack and at no point of time, the defendants had any direct transaction with the plaintiff at Bengaluru. Emphasis was also laid on the definition of the word ‘commercial dispute’, as defined in Section 2(1)(c) of the Commercial Courts Act, 2015, and definition of the word ‘document’, as found in clause (f) of the same Section. It was contended that there was no written agreement between the parties and the suit was based on the invoices raised by the defendants, at Cuttack. 4. Learned Counsel for the defendants sought to place reliance on the following judgments: i) A.B.C Laminart Pvt. Ltd. And Another Vs. A.P. Agencies, Salem (1989) 2 SCC 163; ii) A.V.M Sales Corporation Vs. Anuradha Chemicals Pvt. Ltd. (2012) 2 SCC 315; iii) Maharashtra Chess Association Vs. Union of India and Others (2020) 13 SCC 285; iv) Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others (1994) Supp. 1 SCR 252 and -6- v) National Textile Corporation Ltd., and Others Vs. Haribox Swalram and Others (2004) 9 SCC 786. 5. Per contra, learned Counsel for the plaintiff contended that the Commercial Court has rightly held, having regard to the decision of the Madras High Court in M/s. Patel Bros. Vs. M/s. Vadilal Kashidas Ltd., (1958) SCC OnLine Mad. 199, that merely because the invoice raised by the defendants has the printed words ‘subject to Cuttack jurisdiction’, it would not amount to a contract that both the parties agreed to have Cuttack as the venue for settlement of disputes. 6. Having heard the learned Counsels for the parties herein and on perusing the petition papers, the question that arises for consideration, is whether the Trial Court has committed any error in rejecting the application filed by the defendants invoking Order VII Rule 11(a) of CPC ? However, it should be noticed that the plea regarding want of territorial jurisdiction and therefore, the prayer to reject the plaint invoking Rule 11 of Order VII is not appropriate. In fact, Rule 10(A) of Order VII enables a defendant to raise such a -7- plea and in terms of sub-rule (3), of Rule 10(A), the Court is required to return the plaint on the ground that it has no jurisdiction to try the suit, subject to the other requirements of the said provision. Nevertheless, the Trial Court and the parties have proceeded on the premise that Rule 11 would enable the Court to pass such an order returning the plaint. Therefore, without standing on technicalities, this Court proceeds to consider the case accordingly. 7. The decisions relied upon by the learned Counsel for the defendants arise out of the Arbitration and Conciliation Act. All the decisions have a common thread running between them. It has been held in those decisions that a clause in the agreement between the parties clearly indicate as to the vesting of the jurisdiction in a particular Court. 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. In A.B.C Laminart (supra), it has been held, as regards construction of the ouster clause when words like ‘alone’ ‘only’, exclusive’ and the like have -8- 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 the another – may be applied. 8. This Court had an occasion to consider such contention in a Civil Miscellaneous Petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, in Natural Remedies Pvt. Ltd., Vs. ECGC Ltd., (2023) SCC OnLine Kar. 284. This Court noticed that the Hon’ble Apex Court, in the case of Ravi Ranjan Developers Pvt. Ltd. Vs. Aditya Kumar Chaterjee (2022) SCC OnLine SC 568 held in paragraph Nos.23 and 24 as hereunder: 23. Subject to the pecuniary or other limitations prescribed by any law, suits for recovery of immovable property or determination of any other right to or interest in an immovable property or compensation for wrong to immovable property, is to be instituted in the Court, within the local limits of whose jurisdiction, the property is situated. Certain specific suits relating to immovable property can be instituted either in the Court within the limits of whose jurisdiction the property is situated, or in the Court within the local limits of whose jurisdiction the -9- Defendant actually or voluntarily resides or carries on business. 24. All other suits are to be instituted in a Court, within the local limits of whose jurisdiction the Defendant voluntarily resides or carries on business. Where there is more than one Defendant, a suit may be instituted in the Court within whose jurisdiction any of the Defendants voluntarily resides or carries on business. A suit may also be instituted in a Court within whose jurisdiction the cause of action arises either wholly or in part. 9. It is therefore clear, in terms of Sections 16 and 17 of CPC and in terms of the law laid down by the Hon’ble Apex Court, insofar as suits arising out of immovable properties are concerned, they shall be filed only in the Court within the local limits of whose jurisdiction the immovable property is situated. It is also clear from Section 20(c) of CPC, that a suit not arising from an immovable property, can be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. 10. Applying the law as declared by the Hon'ble Supreme Court, this Court finds in the present case, that admittedly there is no written agreement between the parties. Therefore, it would be futile on the part of the -10- defendants to contend that there is an agreement between the parties restricting the jurisdiction of the Courts to decide the disputes between the parties, in terms of the invoices raised by the defendants. Reliance placed by the Trial Court on M/s. Patel Bros. (supra), where it was held that the jurisdiction of a Court cannot be taken away merely because in the letter head of the defendant he had printed the words ‘subject to Berhampur jurisdiction’, cannot be faulted. This Court concurs with the opinion of the Madras High Court, where it was held that such words were not sufficient to constitute a contracting out of the jurisdiction of a particular Court or vesting it in a particular Court. It is not disputed by the defendants that in the said invoices the address of the plaintiff is printed as ‘Bangalore’ and the communication between the parties also refer to the address of the plaintiff at Bangalore. Therefore, the invocation of the jurisdiction of the Commercial Court at Bengaluru, in terms of clause (c) of Section 20 of the Code of Civil Procedure is permissible. It is permissible for the plaintiff to contend that a part of the cause of action arose in Bengaluru. -11- 11. For the reasons stated above, this Court is of the considered opinion that there is no merit in the writ petition. 12. The writ petition is accordingly dismissed. Sd/- (R DEVDAS) JUDGE JT/- CT: JL