Isha Distribution House Pvt Ltd vs Aditya Birla Nuvo Ltd And Anr.

CIVIL APPEAL Nos.2554­2555 OF 2019 (Arising out of S.L.P.(C) Nos.19777­19778 of 2017)

Isha Distribution House Pvt. Ltd. ….Appellant(s)

VERSUS

Aditya Birla Nuvo Ltd. & Anr. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the final

judgment and order dated 13.02.2017 in APOT

No.274 of 2016 and dated 02.05.2017 in RVWO Signature Not Verified

No.16 of 2017 passed by the High Court at Calcutta Digitally signed by ASHOK RAJ SINGH Date: 2019.03.07 17:29:14 IST Reason: 1 whereby the High Court dismissed the appeal and

review petition filed by the appellant herein.

3. These appeals involve a short point as would

be clear from the facts stated infra.

4. The appellant is the plaintiff whereas the

respondents are the defendants in a civil suit out of

which these appeals arise.

5. The appellant filed a civil suit (Civil Suit

No.88/2016) against the respondents for a

declaration, damages and for grant of injunction

etc. in the High Court at Calcutta on its original

side.

6. The suit was filed inter alia for a declaration

that the termination of two agreements dated

11.07.2007 and 21.05.2008 made by respondent

No.1 was wrongful and, therefore, both the

agreements be declared as being bad in law. The

2 other reliefs claimed in the suit were consequential

in nature to the main relief.

7. The appellant (plaintiff) also filed an

application and sought leave to file the civil suit as

required under Clause 12 of the Letters Patent Act,

1865. The Single Judge by order dated 18.03.2016

granted leave to the appellant as prayed for.

8. The respondents, on entering their appearance

in the suit, filed an application and prayed therein

for revocation of the leave granted to the appellant

(plaintiff) for filing a civil suit by order dated

18.03.2016.

9. The respondents­defendants, in substance,

sought revocation of leave on the ground that since

no part of cause of action arose within the territorial

jurisdiction of the Calcutta High Court but it arose

at Bangalore and hence the civil suit could not have

been filed in Calcutta High Court for want of

3 territorial jurisdiction. It was, therefore, prayed that

the leave granted to the appellant to file and

prosecute the civil suit in the Calcutta High

Court(original side) is liable to be revoked.

10. The appellant (plaintiff) also filed their reply

and contested the said application. By order dated

28.07.2016, the Single Judge allowed the

application of the respondents(defendants) and

revoked the leave. The appellant felt aggrieved and

filed an appeal before the Division Bench of the

High Court. By impugned order, the Division Bench

dismissed the appeal and affirmed the order of the

Single Judge, which has given rise to filing of this

appeal by way of special leave by the

appellant(plaintiff) in this Court.

11. So, the short question, which arises for

consideration in this appeal, is whether the High

Court (Single Judge and Division Bench) was

4 justified in allowing the respondents’ (defendants’)

application and thereby was justified in revoking the

leave granted to the appellant (plaintiff) by order

dated 18.03.2016.

12. Heard Mr. K.V. Vishwanathan, learned senior

counsel for the appellant and Mr. Dhruv Mehta,

learned senior counsel and Mr. Rajesh Singh

Chauhan, learned counsel for the respondents.

13. Having heard the learned counsel for the

parties and on perusal of the record of the case

including the written submissions filed by the

parties, we are inclined to allow these appeals and

while setting aside the impugned order and the

order of the Single Judge dated 28.07.2016, remand

the case to the Single Judge for deciding the issue

in question afresh in accordance with law as

directed hereinbelow.

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14. The question arose as far back as in the year

1932 before the Calcutta High Court in the case of

Secretary of State vs. Golabrai Paliram (AIR 1932

Calcutta 146) as to how the Court should approach

the application for revocation of leave when it filed

in a civil suit.

15. Justice Rankin, learned the then Chief

Justice, laid down the following principle of law in

the case while answering this question in the

following words at page 147:

“I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under clause 12 of the Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course.”

16. This question came up for consideration before

this Court in Indian Mineral & Chemicals Co. &

Ors. vs. Deutsche Bank [(2004) 12 SCC 376]. The

6 learned Judge Ruma Paul J. speaking for the Bench

in Para 15 approved the law laid down in Secretary

of State (supra) as laying down the correct principle

of law and observed as under:

“15. The observations of Rankin, C.J. in Secy. of State v. Golabrai Paliram correctly represents the law as to how the Court should approach an application for revocation of leave: (AIR p. 147)

“I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under clause 12 of the Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest cases that should be the course.”

17. In other words, the law laid down in Secretary

of State (supra) by the Calcutta High Court is now

the law laid down by this Court in view of its

7 affirmation by this Court in Indian Mineral &

Chemicals Co. (supra).

18. Coming now to the facts of this case, since in

this case the respondents did not file any written

statement and instead raised the plea of territorial

jurisdiction by filing the application for revocation of

leave, in our view, the High Court should not have

entertained the said application and instead should

have granted liberty to the respondents(defendants)

to file the written statement in the suit and to raise

therein a plea of territorial jurisdiction of the Court.

19. An issue of such nature, in our view, cannot

be tried by filing an application for revocation of

leave. Indeed, this is what Rankin, the then CJ.,

held for the Bench in Secretary of State (supra)

and which received approval of this Court in Indian

Mineral & Chemicals Co.(supra).

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20. In our opinion, a plea of territorial jurisdiction

is essentially a mixed question of law and fact. It is

for this reason, the respondents(defendants) should

be allowed to raise such plea in the written

statement to enable the Court to try it on its merits

in accordance with law in the light of the

requirements of Order 14 of the Code of Civil

Procedure, 1908 and other relevant provisions

governing the issue on merits.

21. Learned counsel for the respondents cited

several decisions in support of his submissions.

Having gone through them, we are of the opinion

that these decisions are distinguishable in the light

of the law laid down by this Court in Indian

Mineral & Chemicals Co. (supra).

22. In the light of the foregoing discussion, we

allow the appeals, set aside the impugned orders as

also the order of the Single Judge dated 28.07.2016

9 and while dismissing the application filed by the

respondents (defendants) for revocation of grant of

leave, grant liberty to them to file their written

statement in answer to the plaint and raise therein

the plea in question along with all other pleas

relating to the facts and law as the case may be.

23. On such written statement being filed, the

Single Judge will frame appropriate issues arising in

the suit and proceed to answer them in accordance

with law keeping in view the procedure laid down in Order 14 of the Code of Civil Procedure.

24. We, however, make it clear that we have not

expressed any opinion on the merits of the

controversy having formed an opinion to remand

the case to the Single Judge for deciding the issue

afresh as directed above.

25. The Single Judge of the High Court will

accordingly decide the issue strictly in accordance

10 with law on its merits without being influenced by

any observations made by him, the Division Bench

in the impugned order and this Court.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHEHSWARI]

New Delhi;

March 07, 2019

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