KOTAK MAHINDRA PRIME LIMITED Vs. SANJEEV

JUDGEMENT

(1.) BY this Appeal against Order filed under provisions of Order 43, Rule 1 (u) of the Civil Procedure Code, the appellant - original defendant No. 3 in Regular Civil Appeal No. 584 of 2007, challenges the judgment dated 09. 04. 2008 delivered by the District Judge-5, Nagpur, allowing that appeal and remanding the matter to trial Court to decide the issues on merits. Respondent No. 1 before this Court is the original plaintiff who availed vehicle loan from the present respondents No. 2 and 3. These respondents are defendants No. 1 and 2 in that Civil Suit. The Civil Suit came to be filed with prayers for grant of declaration and permanent injunction. The declaration sought is that the act of present appellant in seizing the financed motor vehicle viz. , Truck having No. MH-31/ AP-2240 was illegal and there was no privity of contract between him and present appellant. The further prayer was to direct present appellant to release his truck. In that suit the appellant moved an application at Exh. 17 under provisions of Section 9a read with Order 7, Rule 11 of Civil Procedure Code, for dismissal of suit pointing out that there was arbitration agreement between the parties and also Court at Nagpur has no territorial jurisdiction. The said objection was accepted by the trial Court vide its order dated 31. 10. 1997. Vide said judgment on preliminary issues, 8th Joint Civil Judge, Junior Division, Nagpur, rejected the plaint observing that suit was not maintainable before the Civil Court and plaintiff before it should initiate arbitration proceedings at Mumbai. It continued interim order of status quo granted by it, for a period of one month. The plaintiff then approached the appellate Court in Regular Civil Appeal No. 584 of 2007 and on 09. 04. 2008, by the impugned judgment, his appeal came to be allowed.

(2.) IN this background, I have heard Shri Khapre, learned counsel for the petitioner, Shri Kshirsagar, learned counsel for respondent No. 1 and Shri Ashirgade, learned counsel for the respondents No. 2 and 3.

(3.) DURING arguments, Shri Kshirsagar, learned counsel in addition to raising a preliminary objection, stated that plaintiff has not disputed agreement with defendants No. 1 and 2 and also existence of arbitration clause therein. He stated that dispute was only in relation to alleged transfer of that clause by Respondents No. 2 and 3 to present appellant and its legality. He further stated that as no cause of action accrued at Mumbai, the Court at Mumbai will not have any jurisdiction. In view of this, I was required to hear parties only in relation to these two questions.