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2019 Supreme(Del) 2516
IN THE HIGH COURT OF DELHI AT NEW DELHI
YOGESH KHANNA, J.
Zasha Advertising Pvt Ltd - Appellant
Versus
Abhijit Roy - Respondent
RFA 337 of 2019 & CM APPL No.17611 of 2019
Decided On : 29-11-2019
For the Appellant :Mr.Dhruv Kapur and Mr.Maharshi Kalra, Advocates
For the Respondent:Mr.Vikram Singh, Advocate
The change of name of a company does not affect its rights or obligations, and territorial jurisdiction issues should be decided after evidence.
Headnote:
Territorial Jurisdiction - Order XXXVII CPC - Section 23 Companies Act, 1956 - The suit was dismissed in limine by the Trial Court on the grounds of territorial jurisdiction and mismatch in company names. The appellant's suit was restored by the higher court, emphasizing that the change of name of the company did not affect its rights or obligations, and the territorial jurisdiction issue needed to be decided after evidence.
Fact of the Case:
The appellant filed a suit for recovery of a sum against the respondent, which was dismissed by the Trial Court on the grounds of territorial jurisdiction and mismatch in company names.
Finding of the Court:
The higher court set aside the Trial Court's order, restored the appellant's suit, and directed both parties to appear for further proceedings.
Issues: The issues revolved around territorial jurisdiction and the mismatch in company names, leading to the dismissal of the appellant's suit.
Ratio Decidendi: The change of name of the company did not affect its rights or obligations, and the territorial jurisdiction issue needed to be decided after evidence.
Final Decision: The appeal was disposed of, the Trial Court's order was set aside, and the appellant's suit was restored for further proceedings.
JUDGMENT :
YOGESH KHANNA, J.
1. This appeal is preferred by the appellant/plaintiff against the order dated 07.01.2019 passed by the learned Additional District Judge-4/ South-West District, Dwarka Courts, New Delhi (hereinafter referred as the learned ‘Trial Court’) in CS No.18/2019 whereby the suit of the appellant under Order XXXVII CPC for recovery of Rs.4,71,320/- against the respondent/defendant was dismissed in limine.
2. The brief facts are:
(a) on 26.05.2018 the Respondent placed purchase order upon the Appellant at Delhi for taking the Appellant's service for branding AC bus with effect from 27.05.2018 for a period of one month at the rate of Rs.78,000/- excluding GST per bus per month;
(b) on 02.07.2018 being satisfied by the Appellant's services, the Respondent placed another purchase order dated 02.07.2018 for continuing the above-mentioned services for another period of one month;
(c) on 17.07.2018 in order to discharge the Respondent's liability as per purchase order dated 26.05.2018, the Respondent issued a cheque bearing no.000003 dated 17.07.2018 of Rs.3,68,160/-, drawn on Punjab & Sind Bank, Branch New Alipore, Kolkatta in favour of the Appellant. However, the Respondent requested the Appellant not to present the said cheque for encashment as the Respondent had been running into financial crunch;
(d) after repeated requests and reminders for making the payment of the outstanding amount by the Appellant's officials, the Respondent made part payment of Rs.1,20,000/- to the Appellant against the purchase order dated 26.05.2018;
(e) on 20.08.2018 thereafter, in order to discharge the Respondent's liability as per the purchase order dated 02.07.2018, the Respondent issued a cheque bearing no.000022 dated 20.08.2018 of Rs.3,68,160/-, drawn on Punjab & Sind Bank, Branch New Alipore, Kolkatta in favour of the Appellant. However, the said cheque got dishonored upon its presentation by the Appellant with its banker;
(f) on 11.10.2018 thereafter the Appellant and its officials approached the Respondent repeatedly with request to pay the due amount to the Appellant. After much persuasions, the Respondent paid an amount of Rs.70,000/- against the purchase order dated 26.05.2018. The Respondent also instructed the Appellant to present the cheque bearing No.000022 dated 20.08.2018 for an amount of Rs.3,68,160/-, drawn on Punjab & Sind Bank, Branch NewAlipore, Kolkatta in the last week of October, 2018 with promise and undertaking that the same would be honored upon its presentation. Further the Respondent also undertook and promised to pay the balance amount as soon as possible;
(g) on 02.11.2018 the above stated cheque bearing no.000022 dated 20.08.2018 of Rs.3,68,160/-, drawn on Punjab & Sind Bank, Branch New Alipore, Kolkatta was presented for clearance by the Appellant to its Banker, namely Federal Bank, Marathahalli Branch (FMH), Bangalore within the statutory period, the said cheque was dishonored due to stopping of payment by the Respondent. The said cheque and returning memo dated 02.11.2018, containing the remarks "payment stopped by the drawer" was received by the Appellant thereafter;
(h) on 05.11.2018 The Appellant had also caused a legal notice to be served upon the Respondent, calling upon the Respondent to pay the abovementioned amount;
(i) on 06.12.2018 the Respondent, replied to the said legal notice, wherein making certain false and frivolous allegations, however admitting the abovementioned amount and further made payment of a sum of Rs.75,000/- to the Appellant. Hence the sum of Rs.4,71,320/- is still due and payable by the Respondent to the Appellant;
(j) on 05.01.2019, abovesaid Civil Suit No.18/2019 under order XXXVII of CPC was filed before the District Judge, South West, Dwarka Courts, Delhi and which was marked to the learned Trial Court;
(k) on 07.01.2019 the learned Trial Court dismissed the suit without issuing notice for non-maintainability of the same holding the learned Trial Court lacks territorial juris
