IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMMERCIAL APPEAL (L) NO. 4425 OF 2021 IN LEAVE PETITION (L) NO. 1229 OF 2021 IN COMMERCIAL SUMMARY SUIT (L) NO. 333 OF 2020 Aegis Logistics Limited …Appellant/

Plaintiff Versus Shreeji Liquid Storage Terminal Private …Respondent/

Limited Defendant ----------

Mr. Vishal Kanade, i/b Mr. Ketan V. Joshi & Mr. Vishwajeet Mohite - Advocate for the Appellant.

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CORAM : S. C. GUPTE AND SURENDRA P. TAVADE, JJ.

DATE : 25 FEBRUARY 2021.

P.C. :

1. Heard learned Counsel for the Appellant, who is the original plaintiff in the Commercial Summary Suit, and who challenges an order passed by the learned Single Judge of this Court on 27.01.2021, rejecting leave under Clause XII of the Letters Patent to the plaintiff.

2. The plaintiff in its Leave Petition contends that a part of the cause of action in the present case has arisen within the territorial jurisdiction of this Court; under a particular clause of the contract, namely, Clause-H of the Memorandum of Understanding dated 04.02.2017, the parties have contracted for exclusive jurisdiction of Courts in Mumbai for any action arising out of the subject Memorandum of Understanding.

3. It is the plaintiff’s case, and for the purpose of Clause XII of the Letters of Patent we have to accept that case, that the plaintiff' has its corporate office in Mumbai and it was this office, through which the plaintiff entered into the suit Memorandum of Understanding and issued the suit debit notes. It is the plaintiff’s case that the debit notes were not paid fully in accordance with the Memorandum of understanding. The plaintiff received a part payment in Mumbai, towards part satisfaction of the Debit notes. The plaintiff claims the balance with interest.

4. On these facts, it is claimed that a part of the cause of action in the suit has arisen within the City of Mumbai. Considering that the defendant has its office in Gandhidham, Kutch, which is out of the territorial jurisdiction of this Court, the plaintiff needs leave under Clause XII of the Letters Patent for filing of the present suit in this Court.

5. It appears that despite noting the facts of issuance of the debit notes and receipt of part payment in Mumbai and also noticing Clause-H of the Memorandum of Understanding, which restricted the jurisdiction to Courts in Mumbai, the learned Single Judge has declined to grant leave purportedly on the ground that issuance of the debit notes, receipt of part payment, and, for that matter, the exchange of correspondence from the office of the plaintiff, does not constitute an integral part of the cause of action. The learned Single Judge accordingly held that the this Court did not have jurisdiction to entertain the suit and declined to grant leave under Clause-XII.

6. It is not in dispute that the plaintiff entered into the suit contract at its corporate office at Mumbai and the contract did not provide for payment anywhere else. If that is so, it is to be presumed that payment was to be made in Mumbai at the plaintiff’s corporate office. It is a matter of law that absent anything to the contrary in the contract, the debtor must pursue the creditor for payment. Incidentally, in our case, it is also confirmed by the fact that two part payments were in fact received by the plaintiff at its corporate office in Mumbai. The place, where payment is to be made under the contract, undoubtedly forms part of the cause of action, since it is the defendant’s failure to make payment at that place, which gives rise to the cause of action of the plaintiff.

7. Here was thus a clear case for grant of leave under Clause XII, having regard to this part of the cause of action, which has been arisen in Mumbai, and considering that the defendant carries on business outside Mumbai.

8. Since it is an ex-parte rejection of leave under Clause XII of the Letters Patent, there is no need to issue any notice to the Respondent (original defendant).

9. Accordingly,