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2017 Supreme(Del) 441
IN THE HIGH COURT OF DELHI AT NEW DELHI
R.K. GAUBA, J.
M/S. HADIA ABDUL LATIF JAMEEL CO. LTD. – Plaintiff
Versus
PUNJ LLOYD LTD. & ANR. – Defendants
CS (OS) 2716 of 2014 and IA 1121 of 2015
Decided On : 07-02-2017
For the Plaintiff :Mr. A.S. Chandhiok, Sr. Advocate with Mr. Aditya Ganju, Advocates
For the Defendant :Mr. Rajiv Nayar, Sr. Advocate with Ms. Niyati Kohli, Mr. Karan Luthra and Mr. Saurabh Seth, Advocates
Important Point – Plea of forum non convenience cannot be raised in conjunction with argument of lack of jurisdiction in a civil suit governed by CPC.
Headnote:
Civil Procedure Code, 1908 - Order 7 Rule 10 - Section 20(b) - Return of plaint - Jurisdiction of court - Parties never intended to the contract to cover exclusive jurisdiction of the courts in Saudi Arabia - Court must "hold parties to their bargain" and resultantly reject the objection of the first defendant to the institution of the suit in this court for relief on the basis of the corporate guarantee - Second defendant is a company incorporated in India under the Indian Companies Act and has its principal place of business within the territorial jurisdiction of this court - Prayer for return of the plaint is made are wholly devoid of substance - Corporate guarantee was executed in New Delhi - Application for return of plaint is dismissed.
1. The civil suit in which application (IA 1121/2015) seeking return of the plaint under Order VII Rule 10 of the Code of Civil Procedure, 1908 (“CPC”) has been presented by the first defendant (“Punj Lloyd Ltd.”) was instituted in September 2014 by M/s. Hadia Abdul Latif Jameel Co. Ltd. (“plaintiff”), a company incorporated and having its registered office in Jeddah, Saudi Arabia Besides the applicant (“first defendant”), concededly a company incorporated under the Companies Act, 1956 having its registered office and operational branch at Delhi within the jurisdiction of this court, Dayim Punj Lloyd Construction Contracting Company Ltd. (“second defendant”) has also been impleaded as a party to the suit, it being a joint venture company incorporated in Saudi Arabia and having its principal office in Riyadh, Oliyah, the first defendant being a partner of the said joint venture company on one hand with HRH Prince Khalid Bin Bandar Bin Sultan Bin Abdul Aziz of the Kingdom of Saudi Arabia being the other.
2. For purposes of adjudication upon the application at hand seeking return of the plaint, only certain very basic facts, as culled out from the pleadings of the plaintiff or documents filed therewith, need to be noted.
3. It appears that after the joint venture company (“second defendant”) had been formed, it required a premises to be taken on lease. Thus, pursuant to the negotiations undertaken, the premises described as a luxury penthouse on top of a building known as Jameel Square owned by the plaintiff was taken on lease in terms of a formal contract described as “office lease agreement” dated 05.10.2008 (“OLA”, for short). Needless to add, the OLA indicated the term of the lease (five years) in addition to the rental and other charges payable thereunder by the lessee besides obligations for the premises to be suitably modified/designed or equipped. The sixth clause of the OLA obliged the second defendant to obtain and furnish the corporate guarantee by the first defendant (“applicant”). Pursuant to the said contractual terms, the first defendant statedly provided the corporate guarantee dated 12.11.2008.
4. According to the case of the plaintiff, suitable modifications or designing of the demised premises were carried out and the premises made available but the second defendant (“lessee”) having paid rent for some period indulged in defaults on that account. This led to exchange of certain communications or notices between the parties, the reply dated 17.05.2013 sent by the first defendant indicating that the OLA had been effectively determined in September 2011 and no rent was due or payable. The plaintiff disputes this position pleading that no notice of such termination of the OLA had been received.
5. Be that as it may, against the above backdrop, the plaintiff decided to invoke the corporate guarantee dated 12.11.2008 given by the first defendant. Since the demand for payment under the corporate guarantee, or the lease agreement, were not complied with, the suit was instituted with the averment that both the defendants are jointly and severally liable to pay the arrears of rent and charges alongwith interest.
6. The plaint itself noted that the fifth clause of the corporate guarantee dated 12.11.2008, which had been executed at New Delhi pursuant to the OLA, provided as under (the clause having been extracted from the English translation of the document, as filed at pages 46 to 50 of plaintiff’s documents in part III) :-
“5. This guarantee agreement and the lease agreement shall both be governed by and construed in accordance with Saudi Law. For any dispute arising from the interpretation and/or performance of both agreements the parties submit to the jurisdiction of the courts of Saudi Arabia. Notwithstanding the foregoing, the landlord may also take legal action against client before any court inside of Saudi Arabia or abroad.”
7. The plaint was accompanied by an application (IA 17244/2014) whereby the plaintiff sou
