1 ss1556-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO.1556 OF 2009 Tarun Gold .. Plaintiff Vs. Ukchand Jain .. Defendant Mr.Piyush Shah for the plaintiff CORAM : S.C.Dharmadhikari, J. DATE : December 10, 2010 P.C. : 1. This is a summary suit in which the defendant has failed to appear despite service of writ of summons. 2. The plaintiff prays that the suit has been filed as a summary suit on the basis that the defendant purchased gold ornaments worth Rs.7,86,190/- and Rs.9,62,370/- from the plaintiff who is in the business of wholesale of gold ornaments. Defendant also is in identical business. Plaintiff raised invoices for this transaction inasmuch as goods were accepted without any dispute by the defendant. As against purchase of these goods and invoice raised, defendant forwarded cheque of Rs.17,48,560/- dt.29.6.07 in favour of the plaintiff drawn on Bank of Baroda bearing cheque no.49957 which cheque 2 ss1556-09 came to be dishonoured by the banker with the remark insufficient funds . ‘ ’ Thereafter legal notice was issued. That was duly received but there is no compliance by the defendant. Hence, suit is filed on the basis of dishonoured cheque. 3. From the reading of the plaint averments, I am satisfied that the claim of the plaintiff is within limitation and that Order XXXVII of the Civil Procedure Code could have been invoked. On the attention of Mr.Shah, learned counsel appearing for the plaintiff been drawn to the fact that the defendant carries on business and works for gain not in Bombay but on the own showing of the plaintiff, at Ambernath in Thane District, so also, in absence of leave under clause XII of the letters patent, how this court has territorial jurisdiction to entertain and try the suit is not clear. 4. Mr.Shah relies upon para 12 of the plaint and submits that the plaintiff is carrying on business at Mumbai. Defendant approached the plaintiff at Mumbai and purchased the goods from the plaintiffs shop at Mumbai and agreed to make payments at Mumbai. The cheque issued by the defendant was dishonoured in Mumbai and hence, the entire cause of action has arisen in Mumbai. Therefore leave under clause XII was necessary. He relies upon Division Bench decision of this court reported in 2009(5)Bom.C.R. 345 in the case of Quadricon Pvt.Ltd. Vs. Shri Bajrang Alloys Ltd. 5. Having perused the judgment, I am of the opinion that for the present, this 3 ss1556-09 controversy need not be gone into but para 12 of the plaint states that substantial part of the cause of action has arisen at Mumbai. 6. In such circumstances leave under clause XII was necessary or not is a matter which could have been examined in case the defendant had entered appearance and objected to the courts territorial jurisdiction. Finding that the aspect of territorial jurisdiction does not go to the root of this courts authority and power so also jurisdiction to entertain and try this suit and such an objection is capable of being waived, the original documents are taken on record and marked as Exh X Colly. Affidavit proving service is ‘ ’ marked as Exh. X-1 . There will be a decree as prayed. Advocates cost be ‘ ’ computed as per rules. Refund of court fee as per rules. ( S.C.Dharmadhikari, J. )