CHOLAMANDLAM INVESTMENTS AND FINANCE CO PRIVATE LIMITED RADHIKA SYNTHETICS Vs. RADHIKA SYNTHETICS:CHOLAMANDLAM INVESTMENTS AND FINANCE CO PRIVATE LIMITED

JUDGEMENT

(1.) -M/s. Cholamandalam Investments and Finance (P) Ltd. with its registered office at Madras filed a suit being C.S. No.1161/91, in the High Court of Madras against M/s. Radhika Synthetics Ltd., seeking a decree for a sum of Rs.65,82,850/- with interest amounting to Rs.62,75,778/- on the allegation that the amount was due under a hire purchase agreement dated 26th April, 1989 and a Supplemental Agreement dated 1st June, 1989. The plaintiff further contends that it had earlier filed C.S. No.716/90 in the High Court of Madras in which an Advocate Commissioner was appointed to seize the machinery that were the subject matter of the agreement and that thereafter on negotiation between the parties, two further supplemental agreements, both dated 19th October, 1990, were executed and in view of the supplemental agreements. C.S. No.716 of 1990 was withdrawn. The present suit before the Madras High Court was filed as the defendant M/s. Radhika Synthetics Ltd., failed to pay the instalments from November, 1990 onwards. As per the schedule annexed to the agreement dated 26th April, 1989, the machinery were to be supplied by M/s. Primatex Machinery Private Limited, Dombivli, Thane. M/s. Radhika Synthetics Limited had certain complaints about the machinery supplied to them. About that M/s. Cholamandlam Investments and Finance (P) Ltd. contend in the suit that they were only the financiers and were not concerned with any defect in the machinery supplied by M/s. Primatex Machinery Private Limited. In para 12 of the suit in the Madras High Court, it is stated that the cause of action for the suit arose partly at Madras where the monies are due and payable under the original agreement as well as the supplemental agreements.

(2.) M/s. Cholamandalam Investments and Finance Co. Pvt. Ltd. filed some interim applications presumably under Order 38 Rule 5 of the Code of Civil Procedure for attachment before judgment. It appears from the record that M/s. Radhika Synthetics Limited filed a counter affidavit in response to the application under Order 38 Rule 5 of the Code of Civil Procedure. Copy of the counter affidavit is on record. The objections to the application under Order 38 Rule 5 all relate to the plaintiff's responsibility for supplying defective machinery. No objection about the jurisdiction was taken therein.

(3.) Radhika Synthetics Limited filed suit No.692 of 1992 in the High Court of Bombay against M/s. Cholamandalam Investments and Finance Co. Pvt. Ltd. for recovery of Rs.2,56,00,000/- with interest holding them responsible for failure to commence the production unit for which the hire purchase agreement between M/s. Radhika Synthetics Limited and M/s. Cholamandalam Investments and Finance Co. Pvt. Ltd. were executed. Coming to jurisdiction M/s. Radhika Synthetics Limited in their suit allege that M/s. Cholamandalam Investments and Finance Co. Pvt. Ltd. had agreed to install the machinery at the premises of M/s. Radhika Synthetics Limited at Bombay, that the defective machinery was supplied by the defendants at Bombay, that the agreement was executed at Bombay, that the plaintiffs suffered loss and damages at Bombay, and that all material part of cause of action has arisen at Bombay. M/s. Radhika Synthetics further contend in their suit that they have obtained leave under Clause 12 of the Letters Patent from the High Court of Bombay.