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KERALA HIGH COURT
Thomas P. Joseph, J.
Soman —Appellant
versus
E.C. E. Industries Ltd. —Respondent
R.S.A. No. 898 of 2012
Decided on 29.09.2012
For the Appellants:N. Dhamadan, D.P. Renu and M.R. Venugopal, Advocates.
IMPORTANT POINT
No objection to the place of suing should be allowed by an appellate or Revisional Court, unless there was a consequent failure of justice.
Headnote:Civil Procedure Code,1908—Sections 19 and 20—Territorial Jurisdiction—Second appeal on plea of lack of—The appellant raised objection regarding territorial jurisdiction in his written statement but he participated in the trial and adduced evidence on all issues—He addressed arguments in the Trial Court on all issues and invited findings on all those issues- Nothing to show that institution of suit in the Sub Court. Thiruvananthapuram had resulted in any failure of justice so far as appellant was concerned—Appellant had not shown any failure of justice consequent to sub court Thiruvananthapuram entertaining the suit- Hence the contention regarding lack of territorial jurisdiction could not be raised —Contention of appellant that finding regarding the place of suing and territorial jurisdiction involved substantial question of law held liable to be rejected—Second appeal dismissed. (Paras 19 to 22)
Result: Appeal dismissed.
Thomas P. Joseph, J.—The only question raised by Shri N. Dharmadan, the learned Senior Advocate appearing for the appellant in this Second Appeal arising from a concurrent verdict for payment of balance purchase price to the respondents is lack of territorial jurisdiction for the Trial Court to entertain the suit.
2. The 1st respondent is a Company represented by its Branch Manager, the 2nd respondent. According to the respondents, the appellant purchased a lift from the 1st respondent as per Ext. A-1, agreement dated 14.7.1999 for Rs. 5.5 lakhs. The lift was meant to be installed in the hotel of the appellant at Kottarakkara. The agreement stipulated that 75% of the purchase price was to be paid in advance alongwith the purchase order while 15% was to be paid at the time of delivery of the lift. The remaining 10% was to be paid after installation of the lift. According to the respondents, earthwork and connected works for installation of the lift were to be done by the appellant. On 14.7.1997, at the time of execution of Ext. A-1, agreement the appellant paid Rs. 4.12.500/- being 75% of the price. Appellant did not make the site suitable for installation of the lift within time. Though beyond the time, the lift was installed in the hotel of the appellant at Kottarakkara to his satisfaction. The balance sum of Rs.1,37.500/- is due to the respondents. In spite of demands, appellant did not pay the amount. Hence the respondents filed O.S. No. 338 of 2001 in the Court of learned First Additional Sub-Judge. Thiruvananthapuram claiming that the cause of action arose within the territorial jurisdiction of that Court where the transaction took place.
3. Appellant resisted the suit on various grounds including that learned First Additional Sub-Judge, Thiruvananthapuram has no territorial jurisdiction to entertain the suit. Another contention raised is that the lift was defective, it was not functioning properly and on account of that, the appellant suffered loss.
4. Learned Sub-Judge framed additional issue No.3 relating to territorial jurisdiction. Neither did the learned Sub-Judge decide that issue as a preliminary issue nor was any request made by any of the parties to do so. The parties went to trial and adduced their evidence. After the trial was over, learned Sub-Judge heard the parties and decided all the issues including additional issue No. 3 relating to territorial jurisdiction. The issues were found in favour of the respondents and a decree was granted in their favour.
5. Appellant challenged that verdict in A.S No. 40 of 1990. Learned Second Additional District Judge, Thiruvananthapuram confirmed the findings entered by the learned Sub-Judge regarding territorial jurisdiction and on other issues. The appeal was dismissed. That dismissal is under challenge in this second appeal.
6. According to the learned Senior Advocate, under sections 19 and 20 of the Code of Civil Procedure (for short, “the Code”), jurisdiction to entertain the suit was only with the Sub-Court. Kottarakkara where the appellant resides and works for gain and where according to the appellant the transaction took place. It is argued that no part of the cause of action has arisen within the territorial jurisdiction of the Sub-Court. Thiruvananthapuram. According to the learned Senior Advocate, finding entered by the Courts below that Ext. A-1, agreement was executed at Thiruvananthapuram is perverse, being not supported by any evidence and against the evidence let in by the appellant. It is argued that judgment and decree of the Courts below work out injustice to the appellant in that the lift is not functioning on account of its manufacturing defect and he has suffered loss on account of that. Reliance is placed on the decisions in Sreepathi Hosiery Mills v. Chitra Knitting Co., AIR 1977 Mad. 258, Bloom Dekor Limited v. Subash Himatlal Desai, (1994) 6 SCC 322 and Ayyappan Pillai v. State of Kerala, 2009 (2) KLT 985.
7. Exhibit A-1 is the agreement
