Cause of Action; Fameco Engineering Contractors Pvt. Ltd. Vs. Hajee A. P. Bava & Co. Constructions Pvt. Ltd., Bangalore [Kerala High Court, 25-07-2016]

Code of Civil Procedure, 1908 – S. 20 (c) – Territorial Jurisdiction – Cause of Action – Suit for realisation of money due under a contract –  work orders/letter of indent – contract becomes complete only when the acceptance of offer by the plaintiff is duly intimated to the defendant by external manifestation – the external manifestation of confirming the acceptance in the instant case is the signing of the duplicate of the work orders/letter of indent – the duplicates were required to be returned to the defendant after confirming the acceptance by the mode of subscribing the signature of the plaintiff – a part of the cause of action has arisen at Kozhikode wherein the duplicate of the work orders/letter of indent were signed – whether there has been a concluded contract between the parties or the terms thereof are of course matters to be decided in the suit after the evidence is let in – the finding on issue regards the territorial jurisdiction of the court to entertain the suit is set aside.

# Cause of Action


IN THE HIGH COURT OF KERALAAT ERNAKULAM

V.CHITAMBARESH & K.HARILAL JJ.

F.A.O.129 of 2016

Dated this the 25th day of July, 2016

AGAINST THE ORDER/FINDING ON ISSUE NO. 2 IN OS 37/2014 of III ADDL.SUB COURT, KOZHIKODE DATED 15-02-2016

APPELLANT/PLAINTIFF

FAMECO ENGINEERING CONTRACTORS PVT. LTD., HAVING REGISTERED OFFICE AT 3/415 ALMAS, P.O CHALIAM, KADALUNDI AMSAM & DESAM, KOZHIKODE, REPRESENTED BY ITS’ MANAGING DIRECTOR, ALTHAF MANSOOR, S/O MOHIYUDEEN, RESIDING AT CHALIYAM 673 301

BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH

RESPONDENT/DEFENDANT

HAJEE A.P. BAVA & CO. CONSTRUCTIONS PVT. LTD., 76/D, KALYAN HOUSING SOCIETY, 8TH MAIN ROAD, R.P.C. LAYOUT, VIJAYANAGAR, BANGALORE, KARNATAKA PIN 560 040

BY ADV. SRI. S.V. BALAKRISHNA IYER (SENIOR) BY ADV. SRI.P.B.KRISHNAN BY ADV. SRI.P.M.NEELAKANDAN BY ADV. SRI.P.B.SUBRAMANYAN BY ADV. SRI.SABU GEORGE BY ADV. SRI.S.NITHIN (ANCHAL)

J U D G M E N T

Chitambaresh, J.

Kudos to Mr.V.V.Surendran, Advocate for being emboldened to argue the appeal last week amidst the boycott of courts by his lawyer brethren.

2. We posted the case this week as ‘to be spoken to’ for Mr.S.V.Balakrishna Iyer, Senior Advocate to address on behalf of the respondent.

3. The suit is one for realisation of money due under a contract in respect of works executed at various places in the States of Andhra Pradesh and Maharashtra. The plaint proceeds on the basis that the work orders were accepted at Kozhikode wherein the registered office of the plaintiff and the administrative office of the defendant are situate. The contract becomes complete only when the offer in work orders/letter of indent of different dates is accepted in respect of the works contract. The specific averment in the plaint is that a part of the cause of action has arisen within the jurisdiction of the court of the Subordinate Judge of Kozhikode.

4. The suit could be instituted where the defendant resides or part of the cause of action, wholly or in part, arises under

# Section 20(c) of the Code of Civil Procedure, 1908.

It is trite law that the averments in the plaint alone need be looked into in order to decide whether the court has jurisdiction to entertain the suit or not. It cannot therefore be said that the court of the Subordinate Judge of Kozhikode wherein the suit was laid lacks territorial jurisdiction to entertain the suit. The court of the Subordinate Judge of Kozhikode grossly erred in directing the plaint to be returned for presentation to the proper court in the circumstances.

5. The following excerpt from the recent decision in

# Indian Performing Rights Society Ltd. v. Sanjay Dalia, (2015) 10 SCC 161

as regards accrual of the cause of action is apposite:

“Accrual of cause of action is a sine qua non for a suit to be filed. Cause of action is a bundle of facts which is required to be proved to grant relief to the plaintiff. Cause of action not only refers to the infringement but also the material facts on which right is founded. Section 20 CPC recognises the territorial jurisdiction of the courts interalia where the cause of action wholly or in part arises. It has to be decided in each case whether cause of action wholly or in part arises at a particular place, as held by this Court in

# Rajasthan High Court Advocates’ Association v. Union of India, AIR 2001 SC 416

Thus a plaintiff can also file a suit where the cause of action wholly or in part arises.”

(emphasis supplied)

6. It was inter alia contended that the contract becomes complete only when the acceptance of offer by the plaintiff is duly intimated to the defendant by external manifestation. Reliance was placed by the defendant on the decision in

# Bhagwandas Goverdhandas Kedia v. Girdharlal Parshottamdas & co. and others, AIR 1966 SC 543

The external manifestation of confirming the acceptance in the instant case is the signing of the duplicate of the work orders/letter of indent. The duplicates were required to be returned to the defendant after confirming the acceptance by the mode of subscribing the signature of the plaintiff. The work orders/letter of indent contain such a clause which makes the decision in Bhagwandas Goverdhandas Kedia‘s case (supra) distinguishable here. It can therefore be safely held that a part of the cause of action has arisen at Kozhikode wherein the duplicate of the work orders/letter of indent were signed. Whether there has been a concluded contract between the parties or the terms thereof are of course matters to be decided in the suit after the evidence is let in.

7. The finding on issue No.2 as regards the territorial jurisdiction of the court to entertain the suit is set aside. The Court of the Subordinate Judge of Kozhikode is directed to resurrect the suit and dispose of the same in accordance with law. The Appeal is allowed. No costs.

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