J U D G M E N T

NEENA BANSAL KRISHNA, J.

I.A. 2677 / 2021 (under Order VII Rule 10) in CS (COMM) 735 /2018 &

I.A. 2668 / 2021 (under Order VII Rule 10) in CS (COMM) 736 /2018

1. The aforesaid two Suits for recovery of Rs. 2,17,31,781/- and Rs. 3,38,73866/- along with interest, have been filed by SSIPL Private Ltd. and SSIPL Retail ltd. respectively, against VAMA Apparels India Pvt. Ltd., based on Agreements and Addendum dated 22.04.2016, entered into between the parties for supply of various products/apparels/garments, under the brand names “Nike”, “Addidas” and “Sports Station”, for sale from the Vama Department Store, at Kanchenjunga, 72, Peddar Road, Mumbai-400026.

2. However, subsequently, issues arose between the parties with respect to payment of outstanding dues and thus, VAMA issued Notice dated 21.08.2017, seeking refunds of the outstanding amounts. This was followed by letter of Termination dated 20.10.2017, issued by SSIPL, which was followed by several communications/correspondences, including a Notice under Section 138 of the Negotiable Instruments Act for dishonour of a cheque for a sum of Rs. 5 lakhs, issued in acknowledgement of the part outstanding dues. Thus, the present two suits were filed on 17.02.2018 seeking recovery towards outstanding invoices, refund of security deposits and losses and damages caused.

3. By way of the present applications, the defendants seek return of the Suit for want of territorial jurisdiction, as the parties had entered into an Agreement and Addendum dated 22.04.2016, wherein Clause 32 provided for the Jurisdiction of Mumbai Courts exclusively.

4. It is submitted by the defendant that the plaintiff has claimed that the novation/rescission of previous Contract was triggered on account of abysmal low sales-turn out by the defendants, which was contrary to their initial representation, causing losses to the plaintiff. However, as per their own admissions, an Understanding was arrived only with respect to "3 Clauses" and the Agreement dated 22.04.2016 was never rescinded.

5. It is claimed by the defendants that the plaintiff has cleverly sought to plead that because of the novation/rescission, the Original Agreement dated 22.04.2016, which included the exclusive jurisdiction clause, have taken a back seat and the terms of the Invoices issued subsequently, vested jurisdiction in the Delhi Courts.

6. It is submitted that the plaintiff has pleaded that this Court is vested with the territorial jurisdiction to try the present matter on the following grounds: -

(i) The terms and conditions stipulated in the Invoices raised by the plaintiff upon the defendants, mentioned the Courts in Delhi to have the jurisdiction;

(ii) The plaintiff has its registered Office in Delhi;

(iii) The discussions and correspondences with the defendants have been exchanged by the plaintiff from Delhi;

(iv) The products have been supplied by the plaintiff from Delhi;

(v) The payments and funds have been received by the plaintiff in Delhi in the bank of the plaintiff maintained and operated in Delhi, from the defendants; and (vi) The management discussions had taken place in Delhi.

7. However, in view of the express terms of the Contract dated 22.04.2016, this Court has no territorial jurisdiction to entertain the present Suit, as the Agreement was never rescinded and is still binding upon both the parties. The plaintiff having its registered office in Delhi, would not confer jurisdiction to the Delhi courts in as much as the principal place of business of the Plaintiff is in Mumbai as is also mentioned in the Invoices relied by the Plaintiff.

8. It is further asserted that only the Mumbai Courts have the exclusive jurisdiction to adjudicate the present case as the Agreements dated 22.4.2016 were executed in Mumbai, goods were supplied by the Plaintiff from its Branch office in Mumbai; goods were delivered to the Defendant in Mumbai and thus, all the acts from formation of contract to its execution, have taken place in Mumbai. T