HAWKINS COOKERS LTD Vs. JAGANNATH TRADERS

JUDGEMENT

(1.) IN this Civil Revision Petition challenge has been made to the 1st. Addl. Civil Judge order dated 10.11.2010 passed by the learned (Senior Division), Cuttack in Money Suit No. 114 of 2008 by which the application of the petitioners under Order 14, Rule 2(2), CPC to decide the question of jurisdiction as the preliminary issue has been rejected.

(2.) PETITIONERS ' case in a nutshell is that Opp. Party as Plaintiff filed Money Suit. No.114 of 2008 before the Civil Judge (Sr. Division) 1 st Court, Cuttack which was subsequently transferred to the court of learned 1st Addl. Civil Judge (Sr. Division), Cuttack praying therein to pass a decree for Rs.1,93,316.00 against defendant-petitioners along with pendente lite and future interest. As per the case of the plaintiff-opp. Party, it was appointed by the present petitioner-defendant no.1 on 01.10.2006 as an authorized wholesale dealer to deal with all the products of Hawkins in the State of Odisha on the basis of terms and conditions of the appointment letter. Further case of the plaintiff is that as per usual practice after receiving the purchase order, the defendants-petitioners shall deliver the goods within seven days to the plaintiff-opp. Party. Since the goods were delivered beyond seven days' period, the plaintiff faced financial loss amounting to Rs.98,680.00. Further case of the plaintiff-opp. Party is that on 7.4.2008 the plaintiff-opp. Party wrote a letter to defendant No.2- Petitioner regarding settlement of account, but the defendant-petitioners without looking into the same issued a cheque of Rs. 7,745.00. It is also the case of the plaintiff that as per agreement and performance credit plan dated 12.10.2006, the plaintiff was to be paid 2.5% after purchase of 880 pieces of Pressure Cookers from October, 2006 to March, 2007. Even though the plaintiff purchased 926 pieces of Pressure Cookers, it was not paid as per the performance credit plan. Due to defendant-petitioners' inability to execute the order, the plaintiff-opp. Party was compelled to purchase Pressure Cookers from various dealers amounting to Rs.29,57,440.62 and accordingly it is entitled to additional performance credit to the tune of Rs.73,936.00. In August, 2007 plaintiff- opposite party issued a letter to the defendant no.2-petitioner regarding non-supply of materials which was allegedly said to have been admitted by the defendant no.1-petitioner. Since several correspondences were made between the parties without yielding any result, the plaintiff-opp. Party issued a legal notice on 01.07.2008 to defendant No.2-petitioner demanding settlement of account and that having not been done, the aforesaid Money Suit was filed. On 30.01.2009 the defendant-petitioners entered appearance and on 06.04.2009 filed their written statement. In their written statement, besides taking all technical objections available under law it is specifically pleaded that the plaintiff-opp. Party having offered and opted for Mumbai's jurisdiction as per Clause-15 of the letter of appointment dated 1.10.2006 and Clause-17 of the sales order, learned trial court at Cuttack ought not to entertain and decide the suit. On 08.07.2010 the petitioners moved an application under Order 14, Rule 2(2), CPC (Annexure-3) to take up the issue of jurisdiction as preliminary issue. Thereafter, the plaintiff-opposite party filed objection to the application under Annexure-3 on the ground that the petitioners did not file the application under Annexure-3 immediately after settlement of issues. Learned trial court after hearing both parties dismissed the said petition holding that issues relating to jurisdiction in the present case should not be decided as preliminary issue and it can be taken up simultaneously with other issues for effective adjudication of the lis. Hence, the present Civil Revision Petition.

(3.) ON 06.07.2010, the plaintiff-opposite party filed the affidavit evidence of A. Bajaj and served a copy of the said affidavit on the learned counsel appearing for the petitioners on which date the petitioners prayed for time for cross-examination, but they were pressed to put a few questions for adjournments and accordingly a couple of formal questions were put in the cross-examination though in strict sense, the cross- examination has not begun as yet and the case was posted to 08.07.2010. Mr. Das submitted that in fact no issues were settled as noted against order No.12 dated 31.7.2009.