FOSS ANALYTICAL Vs. RAJASTHAN ELECTRONICS & INSTRUMENTS LTD

JUDGEMENT

(1.) THE present revision petition filed under Section 115 of Code of Civil Procedure, 1908 is directed against the order dated 07/09/2013 passed by the Additional District Judge No.17, Jaipur Metropolitan, Jaipur(hereinafter referred to as 'the Trial Court') in Civil Suit No. 96 of 2013, whereby the Trial Court has dismissed the application of the petitioners -defendants No. 1 to 4 filed under Order VII Rule 11 CPC seeking rejection of the plaint.

(2.) THE facts in nutshell giving rise to the present petition are that the respondent No.1 -plaintiff has filed the suit against the petitioners and the respondent No.2 seeking various reliefs inter -alia for grant of perpetual injunction on the basis of the distributorship contract dated 28/09/2007 entered into between the respondent No.1 -plaintiff, and the petitioner Nos.1 and 2 -defendant Nos.1 and 2. According to the respondent No.1 -plaintiff, the said contract was terminated with effect from 31/12/2012 illegally, for which a separate suit was filed against the petitioner Nos.1 and 2 challenging the said termination, however, subsequently, the plaintiff -company came to know that the defendant Nos.3 to 5 were providing the confidential information of the plaintiff company to its competitors, and were inducing the customers of the plaintiff illegally and misguiding them. Hence, the subsequent suit was filed seeking reliefs against all the petitioners and the respondent No.2 -defendants. In the said suit, the present petitioners filed an application under Order VII Rule 11 CPC alleging inter -alia that the Court did not have the jurisdiction to entertain the suit, and that the Maritime and Commercial Court of Copenhagen only had the jurisdiction to decide the disputes arising out of the said contract, in view of Clause 34 of the said Contract. The said application has been dismissed by the Trial Court vide the impugned order, against which the present revision petition has been filed.

(3.) HOWEVER , the learned Senior Counsel Mr. Sudhanshu Kasliwal, for the respondent No.1 -plaintiff submitted that the cause of action against all the defendants including the petitioners had arisen within the jurisdiction of the Trial Court, as stated in the plaint, and that the issue of jurisdiction being mixed question of law and fact, the Trial Court had rightly rejected the application of the petitioners filed under Order VII Rule 11 (d) of CPC. Taking the Court to the Clause 34 of the agreement in question, Mr. Kasliwal submitted that the Court at Copenhagen, referred to in the said clause, had the jurisdiction to settle the disputes between the parties and not to adjudicate the disputes. Relying upon the decision of Apex Court in case of Laxman Prasad vs. Prodigy Electronics Ltd. and Anr., (2008) 1 SCC 618, he submitted that the words "cause of action" and "the applicability of law" are two different things, and that the application under Order VII Rule 11 CPC could not be entertained on the ground that as per the agreement, the laws of Foreign Country were made applicable. Relying on the decision of Apex Court in case of D. Ramachandran vs. R.V. Janakiraman and Ors., (1999) 3 SCC 267, he submitted that the plaint cannot be rejected partially by dissecting the pleadings in several parts. Mr. Kasliwal has also relied upon the decision of Apex Court in case of Harshad Chiman Lal Modi vs. DLF Universal Ltd. and Anr., (2005) 7 SCC 791 to submit that neither the consent nor waiver nor acquiescence can confer the jurisdiction upon the Court, which otherwise was incompetent to try the suit, and that in the instant case, no cause of action having arisen within the jurisdiction of the Court at Copenhagen, suit of the plaintiff could not be said to be barred under the agreement muchless under any law.