1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.357 OF 2008 IN SUMMARY SUIT NO.2168 OF 2008 PT. CIPTA BUSANA JAYA, a company incorporated under the laws of Indonesia having its registered office at JI Melawai Raya No.25 Kebayoran, Baru, Jakarta, 12160, Indonesia. .... Plaintiff - Versus - 1. UNISOURCE WORLDWIDE PVT. LTD., a company incorporated under the provisions of the Companies Act, 1956 and having its Registered Office at Volkart Building, Plot 194, J.N. Heredia Marg, Ballard Estate, Mumbai- 400 001 and being a part of Unisource Group of Companies. 2. 4004 INCORPORATED, a division of Unisource Group and having office at Volkart Building, Plot No.194, J.N. 2 Heredia Marg, Ballard Estate, Mumbai 400 001 and office also at 12, Harbour Park Drive, Port, Washington, New York 11050, United States of America. .... Defendants Shri Sharan Jagtiani a/w Ms Janhavi Durve i/b M/s. K. Ashar & Co. for the Plaintiff. Ms Smita Sawant i/b M/s. S.K. Legal Associates for the Defendant No.1. Shri Zoheb Amin i/b M/s. Law Charter for the Defendant No.2. CORAM: SHRI A.V. NIRGUDE, J. DATED : FEBRUARY 3, 2009 ORAL JUDGMENT: 1. In this summary suit the present summons for judgment is taken out against the defendants who failed to submit a reply opposing the same. The plaintiff therefore sought decree in the suit. The learned Advocates appearing for the defendant Nos.1 and 2 are present before the Court. The Advocate appearing for the defendant No.2 tried to suggest that he had communicated to his client that he had moved the Court for getting discharge, for he has not been receiving the required instructions from the client. Admittedly, till today, no order has been passed on such discharge application and so the Advocate appearing for the defendant No.2 is still on record as the Advocate appearing for the said defendant. 3 In fact, during the course of the hearing the Advocate made submissions also. 2. The plaintiff' s case, in short, can be stated as under: The plaintiff is a company incorporated in Indonesia. They are in the business of manufacturing and trading of ready- made garments, etc. The defendant No.2 is a division of one Unisource Group and is set-up in Mumbai to act as an affiliate hub for supplying chain solution, etc. While the Unisource Group is a company incorported in the United States of America, the defendant No.1 is also a Unisource group company. 3. The defendant No.2 placed two purchase orders upon the plaintiff for the sale and supply of certain readymade garments in August, 2007. Accordingly, the goods were supplied to the main company in the United States and the bills were raised against the defendant No.2. The defendant No.2 failed to effect payment and so this suit came to be filed for recovery of the price of the goods sold and delivered to the parent company of the defendant No.2. As stated above, when the summons for judgment was taken out in this summary suit, none of the defendants filed the reply and today I am considering whether to decree the suit & as against whom. 4. As against the defendant No.1, there is no direct written contract and so the plaintiff is not entitled to a decree against them. It seems they are made party only because they are one of the group companies of the parent company, namely, Unisource. The 4 plaintiff tried to add one more aspect to their case as against the defendant No.1 saying that, in one of the e-mails sent by the defendant No.1 to the plaintiff-company, the defendant No.1- company agreed to make the payment. But as stated above, since there is no written contract, a suit as against the defendant No.1 in this format is not maintainable and so the defendant No.1 is entitled to unconditional leave to defend the suit. 5. As against the defendant No.2, the case is stronger. The only question that I raised is about the maintainability of the suit in India against the defendant No.2' s parent company which is incorporated in the United States. The question, therefore, is whether the suit is maintainable in this Court as against the defendant No.2. The learned Advocate appearing for the plaintiff placed reliance on Clause 12 of the Letters Patent which is almost in pari materia with Section 20 of the Civil Procedure Code. All that the plaintiff could show to maintain the suit as against the said defendant is that the defendant carries on business within the local limits of this Court. The plaintiff has stated clearly in the plaint that the defendant has its office in Mumbai as a division of the Unisource Group and they act as an affiliated hub, etc., to provide chain solution, retail operation solution, etc. The e-mails sent by the defendant No.2 are also on record and they show that the employees of the defendant No.2 carry on business in Mumbai and placed the suit orders on the plaintiff and received the bills also at Mumbai. This clearly established that the defendant No.2 has presence in Mumbai and has its business activities going on in Mumbai. A similar question arose before this Court in the matter of 5 Pratap Singh v. The Bank of America, reported in The Bombay Law Reporter, Volume 78 Page 549. In the said matter, the Division Bench of this Court considered the law on this point and held that a suit can be filed on the Original Side of the Bombay High Court under Clause 12 of the Letters Patent against a foreign corporation incorporated abroad, if it carries on business within the limits of the ordinary original civil jurisdiction of the High Court, though the cause of action might have arisen wholly outside India. It is thus clear that the law on this subject is settled. 6. The defendant No.2 though did not file any reply to the summons for judgment, they had their reply on record which they filed in some other proceedings in the suit. In that reply, they took up the defence that the parent company in the United States has filed for bankruptcy protection under Chapter 11 of the U.S. Bankruptcy Law. I am afraid, this provision may not apply in India and the Advocate appearing for the defendant No.2 did not show me any decision preventing this Court from passing a decree only because a protective order is passed against a party under such provision in a foreign country. The plaintiff thus has made out a case for passing of the decree as against the defendant No.2. Hence the summons for judgment is made absolute and the decree as against the defendant No.2 is passed in terms of the prayer clause (a) of the plaint. However, the rate of interest payable to the plaintiff from the date of filing of the suit till the amount is realised shall be 6% per annum. 7. At this stage, the learned Advocate for the defendant 6 No.2 made oral request for keeping this order in abeyance. As the execution of the decree is not likely to start immediately after the issuance of the certified copy of this order, the oral request for keeping this order in abeyance is rejected. Sd/- (A.V. Nirgude, J.)