2002 Supreme(Bom) 574

IN THE HIGH COURT OF BOMBAY
D.G. Karnik, J.
Crown Frozen Foods .... Plaintiff.
Versus
Silver Frozen Foods another.... Defendants.
Chamber Summons No. 2 of 2002 in Suit No. 2631 of 2001, decided on 24-6-2002.
Advocates appeared :
N.M. Shah i/b. A.B. Kerkar, for plaintiff.
M.M. Bagadia, for defendent.

Headnote:Civil Procedure Code, 1908 - Section 9 - Letters Patent (Bombay), Clause 12 - More than one forum available to file suit - Parties are free to choose one - Selection cannot be made in favour of a forum that is lacking requisite jurisdiction - Selection can be made from among the proper forums only. - It is not competent to the parties by agreement to invest a Court with a jurisdiction which it does not otherwise possess. If there are more than one forums where a suit can be filed, it is open to the parties to select a proper, particular forum and exclude all other forums where the suit can be filed. The parties cannot choose a forum which lacks jurisdiction altogether.

       Law of Precedent - Section 20 - Leave to sue - Jurisdiction of Court - Leave to sue granted inter alia at Mumbai on ground that contract terms stipulated that only Mumbai Court will have jurisdiction - Leave to sue in respect of supply of fish to be caught at various places in Gujarat and payments to be made at Verawal by cheques - Held - In absence of cause of action at Mumbai, parties cannot by agreement invest jurisdiction in a Court - Which do not possess - Parties cannot opt a forum which has no jurisdiction altogether - Leave granted under clause 12 of Letters Patent revoked. - It is not competent to the parties by agreement to invest a court with a jurisdiction which it does not otherwise possess. If there are more than one forums (places) where a suit can be filed, it is open to the parties to select a particular forum and exclude all other forums where the suit can be filed. What is however, necessary is that there must be more than one forums, where the suit can be filed and then parties can chose one of such forums. The parties cannot chose a forum which lacks jurisdiction altogether. Suppose a contract is made at Mumbai and the goods are delivered at Satara but are alleged to be defective, then in such cases, normally, Courts at Mumbai and Satara would have a jurisdiction to try such suit. It is open to the parties in such a case to agree that out of the two, only Courts at either Mumbai or Satara would have a jurisdiction to exclusion of other. It is however, not open to the parties to agree that Nagpur, where no part of cause of action has arisen would alone have jurisdiction to entertain and try the suit.

        In the present case, advance was made at Verawal. The goods (fish) were to be delivered at Verawal or at Ports in Gujarat. No parts of cause of action had arisen at Mumbai and therefore, Courts at Mumbai had no jurisdiction and clause No. 9 of the agreement therefore, does not and cannot confer any jurisdiction on this Court. In this view of the matter, leave granted by the Court under clause XII of the Letters Patent has to be revoked. Accordingly, Chanber Summons is made absolute in terms of prayer clause (a).

       Law of Precedent - Clause 12 - Civil Procedure Code, 1908, Section 20 - Leave to sue - In respect of contract for supply of fish to be caught at various places in Gujarat and payment for to be made at Verawal - Contract entered at Verawal and not at Mumbai - Contention that sanction for payments to be made at Verawal given from Mumbai - Part of cause of action arose at Mumbai - Leave property granted - Held - Contract not showing that any delivery of goods to be made at Mumbai - No cause of action arisen at Mumbai. - The learned Advocate for the respondent however submitted that though it is not denied that loans were paid from the ban accounts at Verawal, the respondent has categorically stated that advances were sanctioned from Mumbai. According to him, since the loans were sanctioned from part of cause of action has arisen at Mumbai. Sanctioning of an advance is a unilateral act of the respondent with which applicants are not concerned. This unilateral act of internal sanctions cannot be a part of the cause of action. Normally, the place where the loan/advance is disbursed would be a place where the cause of action would arise. It is not necessary to consider in this case as to whether the place where the loan/advance was applied and/or the place where the sanction of advance/loan was communicated would also be a place where part of cause of action arises because it is nobody s case that application/request for advance or the communication of sanction/advance was made at Mumbai.

       Law of Precedent - Clause 12 - Arising of part of cause of action - Books of accounts being maintained at Mumbai - Mere maintenance of books of accounts at Bombay cannot be a proper ground to claim leave under clause 12. - Merely because the plaintiff maintains accounts at Mumbai would not mean that part of cause of action arose at Mumbai. The company may maintain accounts only at the Head office and entries of all transactions all over India may be made in its books maintained at Mumbai. That would not mean that part of cause of action on a contract or a transaction which is made outside Mumbai arises at Mumbai merely because books of accounts are maintained by the company at Mumbai.

       Civil Procedure Code, 1908 - Section 9 - Letters Patent (Bombay), Clause 12 - More than one forum available to file suit - Parties are free to choose one - Selection cannot be made in favour of a forum that is lacking requisite jurisdiction - Selection can be made from among the proper forums only. - It is not competent to the parties by agreement to invest a Court with a jurisdiction which it does not otherwise possess. If there are more than one forums where a suit can be filed, it is open to the parties to select a proper, particular forum and exclude all other forums where the suit can be filed. The parties cannot choose a forum which lacks jurisdiction altogether.