1 IN THE HIGH COURT OF BOMBAY AT GOA. APPEAL FROM ORDER NO. 37 OF 2010. Shri Sudhesh Heramb Dalvi, Proprietor of Shravani Real Estates, having office at Sanchayani House, Near Mahalaxmi Temple, Dada Vaiya Road, Panaji Goa. …....... Appellant. Versus CCI Limited a Company incorporated under the provisions of the Indian Companies Act, 1956 (Act 1 of 1956), having its registered office at Tile Factory Road, Manipal, 576 104, represented herein through Shri Pandurang Rauji Nadkarni, its Principal Officer, r/o Mapusa, Bardez Goa. …....... Respondent. Mr. Nitin Sardessai Advocate for the appellant. Mr. A. F. Diniz, with Mr. D. Pangam, Advocates for the respondent. CORAM :- A. P. LAVANDE, J. Reserved on:- 15th February, 2011 Pronounced on:- 18th February, 2011 2 JUDGMENT : Heard Mr. Nitin Sardessai, learned Counsel for the appellant and Mr. A. F. Diniz, learned Counsel for the respondent. 2. Rule. By consent of learned Counsel for the parties, heard forthwith. 3. By this appeal, the appellant takes exception to Order dated 7.5.2010 passed by the Civil Judge, Senior Division, Mapusa in Special Civil Suit no.103/2007/A by which trial Court has directed to attach the suit property of the defendant under Order XXXVIII Rule 5 and 6 of the Civil Procedure Code and the defendant has been restrained by way of temporary injunction from disposing of the suit property. The appellant is the defendant and the respondent is the plaintiff in the above suit. 4. The plaintiff filed above suit against defendant for recovery of an amount of Rs.1,14,18,290/- ( Rupees one crore fourteen lakhs eighteen thousand two hundred and ninety only) alleging that plaintiff had advanced Rs.40,25,000/- ( Rupees forty 3 lakhs twenty five thousand only) to the defendant for purchasing a property in Mapusa and that the defendant was liable to pay interest at the rate of 36% per annum on the said amount. Alongwith the suit the plaintiff filed an application seeking interim relief under Order XXXVIII Rule 5 and 6 and Order XXXIX Rule 1(b) of C.P.C. 5. The defendant filed written statement contesting the suit and also filed reply to the application for interim relief. In the written statement a specific plea was taken that the Court has no territorial jurisdiction to entertain the suit since no part of cause of action has arisen within the jurisdiction of Mapusa Court. 6. The trial Court by impugned Order dated 07.5.2010 granted relief in terms of Order XXXVIII Rule 5 and 6 and also granted temporary injunction sought for by the plaintiff restraining the defendant from disposing of the suit property. 7. Mr. Sardessai learned Counsel appearing for the appellant submitted that on plain reading of the plaint it is evident 4 that no part of cause of action has arisen within the jurisdiction of Civil Judge, Senior Division, Mapusa in as much as the registered office of the plaintiff is situated at Manipal and in the plaint, nowhere it has been stated that money was advanced at Mapusa so as to give cause of action within the jurisdiction of Mapusa Court. Learned Counsel further submitted that there was absolutely no justification for the trial Court to grant the interim relief granted by the Trial Court. Mr. Sardessai, further submitted that the only averment in para 21 of the plaint is that cause of action has arisen within the territorial limit of the Court since the suit property is situated within the territorial limit of the Court and therefore the Court has no jurisdiction to entertain the suit. Mr. Sardessai further submitted that impugned Order has been passed by the Court lacking jurisdiction to entertain the suit. 8. Per contra Mr. Diniz, learned Counsel appearing for the respondent submitted that payment of amount was made at Mapusa and plaintiff has already filed an application dated 2.11.2010 for amendment of plaint which is pending for consideration before the Trial Court and therefore till application is 5 decided matter be adjourned. The prayer has been rightly opposed by Mr. Sardessai, learned Counsel for the appellant on the ground that although the defendant has specifically raised the issue of jurisdiction in the written statement the plaintiff did not choose to file application for amendment till the appeal was taken up by this Court. I am not inclined to accede to the request of Mr. Diniz to keep this matter pending till the application for amendment is disposed of by the trial Court. 9. Mr. Diniz, further submitted that the amount was advanced at Mapusa as is evident from the application for amendment filed by the plaintiff and therefore the Civil Court at Mapusa has jurisdiction to entertain the suit and consequently jurisdiction to pass the impugned order granting interim relief to the respondent/plaintiff. Mr. Diniz, placed reliance upon the following Judgments (I) Gaganmal Ramchand Vs. The Hongkong & Shanghai Banking Corporation, AIR 1950 Bom 345; (ii) Rajendran and others vs. Shankar Sundaram and others, 2008 DGLS(Soft) 119; (iii) Rajashri alias Rajani U. Bhakta and ors. vs. Maria Elsa de Noronha, 2010(3) Bom C. R. 6 65. 10. I have considered the rival contentions, perused the record and the judgments relied upon. 11. Perusal of the plaint discloses that an amount of Rs.40,25,000/- ( Rupees forty lakhs twenty five thousand only) was advanced to the defendant for purchasing the property situated at Village Nerul Reis-Magos of Bardez taluka. The plaint further discloses that inspite of assurances given defendant did not pay advance taken from the plaintiff and therefore plaintiff was constrained to file the above suit. On a plain reading of the plaint it is clear that the suit is simpliciter for recovery of money advanced by the plaintiff to the defendant. This being the position, I find considerable merit in the submission of learned Counsel Mr. Sardessai, that trial Court could not have entertained the suit as no part of the cause of action has arisen within the jurisdiction of Mapusa Court. Merely because in the plaint it has been averred that defendant has purchased property which is situated within the jurisdiction of Mapusa Court, from the amount advanced to the 7 defendant it cannot be said that a suit simpliciter for recovery of money could have been filed by the plaintiff in Mapusa Court without making out that any part of the cause of action had arisen within the jurisdiction of Mapusa Court. As rightly submitted by Mr. Sardessai the only averment made in para 21 of the plaint is that cause of action has arisen within the territorial jurisdiction of the Mapusa Court since the suit property was situated within the limit of the Mapusa Court and therefore the Court had jurisdiction to entertain the suit. In my considered opinion merely because the property alleged to have been purchased by the defendant is situated within the jurisdiction of Mapusa Court, by itself would not give jurisdiction to Mapusa Court to entertain the suit simpliciter for recovery of money. Therefore Civil Court at Mapusa in the absence of any averment in the plaint pointing out as to how any part of cause of action had arisen within the jurisdiction of Civil Court at Mapusa, Civil Court at Mapusa had no jurisdiction for entertaining the suit. Therefore, the Civil Court could not have entertained the suit and consequently could not have granted any interim relief in such a suit. 8 12. In so far as the authorities relied upon by Mr. Diniz are concerned the same are absolutely not relevant having regard to the factual matrix in the present case. In the case of Gaganmal Ramchandra ( Supra), the Division Bench of this Court was dealing with application for amendment. In the said case, it has been held that the Court has jurisdiction to allow an amendment of the plaint which on the face of it did not disclose a cause of action. Admittedly, the application for amendment has not been allowed by the Trial Court therefore this judgment would not advance the case of the appellant. In the case of Rajendran (supra), the Apex Court was dealing with the matter under Order XXXVIII Rule 5 of C.P.C. I have already held that the Civil Court at Mapusa had no jurisdiction to entertain the suit, and therefore, had no jurisdiction to grant any interim relief. Therefore this judgment also is of no help to the respondent. In the case of Rajashri alias Rajani ( supra) the Division Bench of this Court held that in an appeal from Order rejecting the plaint the appellant could also challenge Order dismissing the application for amendment passed by the trial 9 Court. The ratio of said judgment also does not advance the case of the appellant. 13. For the reasons aforesaid, I am of the considered opinion that impugned order passed by the Trial Court is patiently without jurisdiction and is liable to set aside. The trial Court absolutely had no jurisdiction to entertain the suit and consequently to grant any interim relief sought for by the plaintiff. The plaintiff has chosen to proceed with the suit, although specific objection regarding territorial jurisdiction of the Court was taken by the defendant in the written statement. Therefore, I deem it appropriate to award costs of Rs.5,000/- ( Rupees Five thousand only) in favour of the appellant/defendant. 14. In the result, therefore, appeal is allowed. Impugned Order dated 7.5.2010 passed by the Civil Judge Senior Division, Mapusa in Special Civil Suit No.103/2007/A granting interim reliefs in favour of the respondent/plaintiff is quashed and set aside and the respondent is ordered to pay cost of Rs.5,000/- ( Rupees five thousand only) to the appellant/defendant. Costs shall be 10 deposited in the trial Court within a period of four weeks. Liberty to appellant/defendant to withdraw the costs after they are deposited. 15. Rule is made absolute in the aforesaid terms. A. P. LAVANDE, J. 16. At this stage, Mr. Pangam, learned Counsel for the respondent seeks stay of the order. I have held already that the averments in the plaint do not make out that any cause of action has arisen within the territorial jurisdiction of Mapusa Court. As such no case is made out for grant of stay of the order. Hence, the prayer is rejected. A. P. LAVANDE, J. vn*