Appeal No. 243 of 2012 in Chamber Summons No. 2125 of 2011 in Summary Suit No. 1450 of 2011 with Notice of Motion No. 1851 of 2012. Case: Gouri Prasad Goenka Vs Rabo India Finance Limited. High Court of Bombay (India)
| Case Number | Appeal No. 243 of 2012 in Chamber Summons No. 2125 of 2011 in Summary Suit No. 1450 of 2011 with Notice of Motion No. 1851 of 2012 |
| Counsel | For Appellant: Mr. D. D. Madon, Sr. Advocate with Mr. Mikhail Behl, Mr. Khushnood Akhtar, Mr. Rigved Sawant and Mr. Levi Ruters i/by Vigil Juris, Advs. And For Respondents: Mr. Simil Purohit with Mr. Bhavik Manek and Mr. Yashesh Kamdar i/by Wadia Ghandy & Co. |
| Judges | Dr. D. Y. Chandrachud and A. A. Sayed, JJ. |
| Issue | Code of Civil Procedure (CPC), 1908 - Section XXXVII |
| Citation | 2013 (2) MahLJ 195 |
| Judgement Date | January 07, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
1. In a Summary Suit instituted under Order XXXVII of the Code of Civil Procedure, 1908, leave was granted under Clause-XII of the Letters Patent. The Defendant, who is in appeal in these proceedings, has been sued on the basis of guarantees executed by him in favour of the Plaintiff in consideration of two facilities granted by the Plaintiff to a company, of which the Defendant was at the material time a principal director. A Chamber Summons was taken out by the Defendant seeking revocation of the leave granted under Clause-XII of the Letters Patent. The Chamber Summons for revocation has been dismissed by the learned Single Judge on 12 March 2012, against which judgment the Defendant is in appeal. The basis on which the Defendant sought revocation of the leave which had been granted under Clause-XII of the Letters Patent was stated as follows in the affidavit-in-support filed by the Defendant in the Chamber Summons:
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The Deed of Guarantees are entered into at Kolkata;
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The Deed of Guarantees does not have any jurisdictional clause;
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All the terms and conditions of the Credit Facility Letters are not binding on me;
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Deed of Guarantees are separate agreements and the terms and conditions contained in the Credit Facility Letters cannot be read into the Deed of Guarantees.
2. The plaint contains averments on the basis of which the jurisdiction of this Court to entertain and try the suit is set up. Paragraph 37 is as follows:
37. The Plaintiff says that the documents for which the credit facilities were granted by the Plaintiff were subject to the jurisdiction of the courts in Mumbai as agreed in the documents. The amounts disbursed under the aforesaid credit facilities were disbursed in Mumbai and the Company who is the principal borrower has made part payments of the outstanding amount under the credit facilities in Mumbai. The Defendant and the Company who are jointly and severally liable to make payments of the outstanding dues of the Plaintiff as aforesaid, have agreed to pay the outstanding amounts under the credit facilities to the Plaintiff in Mumbai. The Plaintiff therefore says that material part of cause of action has arisen in Mumbai. The Defendant however resides and has his office in Kolkata. The Plaintiff therefore states that upon this Hon'ble Court granting leave under Clause XII of Letters Patent to the Plaintiff, this Hon'ble Court will have jurisdiction to try, entertain and dispose off the above suit.
3. The facilities which were granted by the Plaintiff to the principal borrower required the execution of a personal guarantee by the Appellant-Defendant. Clause-22 stipulates that the facilities would be subject to the exclusive jurisdiction of the Courts at Mumbai. Now, it is undoubtedly well settled that a clause conferring exclusive jurisdiction upon a Court is of consequence only in a situation where that Court would otherwise have jurisdiction to entertain and try the suit. If a Court does not possess jurisdiction in the first place, a clause conferring exclusive jurisdiction upon that Court would be of no avail. In the present case, Annexure-I which contains general terms and conditions, inter alia, contains following provision:
2. Method of calculation and payment:..............................
In case any interest/principal payment/repayment date falls on a day on which Banks in Mumbai are not open for business, then such payment/repayment shall be made on the Banks' business day immediately preceding such date.
The personal...
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