The court clarified that a plaintiff can amend a plaint and add parties after withdrawing a suit, provided the subject matter remains unchanged, even under exclusive jurisdiction clauses.

JUDGMENT :

TARA VITASTA GANJU, J.

1. The present Appeal arises out of an order/judgment dated 17.07.2019 passed by the learned Additional District Judge, Tis Hazari Court, Delhi in Civil Suit No. 437/2018 [hereinafter referred to as “Impugned Order”]. By the Impugned Order the Learned Trial Court has rejected the plaint filed by the Appellant/Plaintiff under Order VII Rule 11 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”].

2. Briefly the facts are that the Appellant entered into an Agreement with the Respondents on 11.02.2009 for transfer of the right toprocess the Appellant’s PVC window sections into structural elements [hereinafter referred to as “the Agreement”]. The Agreement was executed by the Respondent No. 4/Vandana on behalf of Respondent No.3/Mantralaya Impex a proprietorship firm. Although, the Agreement set out that it is between the Appellant and a party named as Mantralaya Impex Pvt. Ltd., it is the case of the Appellant that Mantralaya Impex was only incorporated as a private limited company on 23.01.2015, six years after the Agreement was signed.

2.1 The Agreement was for a duration of three years extendibleautomatically unless terminated by a six months’ notice at the end of the respective year. The Agreement also sets out in Clause 10 that Indian Law shall apply and the local Courts at Delhi shall have exclusive jurisdiction to try disputes, irrespective of the amount in dispute.

3. The Appellant terminated the Agreement by a written communication dated 21.04.2015 setting out that Clause 3 of the Agreement was breached by the Respondent No.1 and that the Respondent No.1 was purchasing uPVC profiles from other suppliers during the tenure of the Agreement. This was followed by a legal notice addressed on behalf of the Appellant to the Respondents seeking encashment and release of a letter of credit dated 09.04.2015 [hereinafter referred to as “LOC”] opened at HDFC Bank, Chennai for an amount of Rs. 13,27,968/-.

4. It was further contended that the Appellant had duly supplied thegoods in terms of the purchase order dated 07.04.2015 which was received by the Respondents on 15.04.2015 at its offices in Chennai, however, the Respondents had refused to honour the LOC.

5. The Appellant filed a suit on 21.08.2015 under the provisions of Order XXXVII of the CPC claiming a sum of Rs. 13,27,968/- from the Respondent No.1 in terms of the LOC by the Appellant. The suit was filed before the Jt. Civil Judge Senior Division Khed- Rajgurunagar, Pune [hereinafter referred to as “Pune Court”] against Respondent No.1 titledRehau Polymers Pvt. Ltd. v. Mantralaya Impex Pvt. Ltd. [hereinafter referred to as “Pune Suit”]. An application for leave to defend was filed by the Respondent No.1. Conditional Leave to defend was granted by the Pune Court by its order dated 15.11.2016, subject to the payment of Rs. 6,00,000/- to be deposited by Respondent No.1 within three months.

6. Subsequently, the Appellant filed a pursis for withdrawal of the suit seeking liberty to file a fresh suit before the appropriate Court having jurisdiction to try the said suit. The Respondent No.1 filed an application seeking withdrawal of the amount of Rs. 6,00,000/- deposited with the Pune Court and a no objection was given by Respondent No.1 for withdrawal of the suit. In addition, the Appellant gave its no objection for the withdrawal of Rs. 6,00,000/- deposited by the Respondent No.1.

6.1 By its order dated 07.03.2018, the Pune Court permitted the Appellant to withdraw the suit with liberty to file a fresh suit andpassed directions for refund of the Court fee to the plaintiff/Appellant and the amount deposited to be returned to the Respondent No.1.

7. On 12.04.2018, the Appellant filed a suit before Additional District Judge (West), Tis Hazari Courts, Delhi which was numbered as CS No. 437/2018 [hereinafter referred to as “Delhi Suit”] for the recovery of a sum of Rs.22,45,071/- (Rupees Twenty-Two Lakhs Forty Five Thousand and Seventy One)