IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL REVISION APPLICATION NO. 2 OF 2009 (M/S. HMT LTD. & ANR. Vs. VISHNUPRASAD BANSILAL VYAS) _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri L.H.Kothari, Advocate for Applicants. Shri S.V.Purohit, Advocate for Respondent. CORAM : R.C.CHAVAN, J. DATED : APRIL 17, 2009. 1. This revision is directed against the order passed by learned Civil Judge Senior Division, Amravati rejecting applicant/ defendant's application under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint. 2. The applicant M/s. HMT Limited is manufacturer of tractors and farm equipments. Respondent Vishnuprasad ran a proprietary business by name Balaji Motors at Amravati for sale of those tractors under Memorandum of Understanding entered into between the parties from time to time. It is, however, not in dispute that after 31st March, 1999 there is no Memorandum of Understanding which is signed by the plaintiff. Clause (3) of the Memorandum of Understanding provides that the Memorandum of Understanding would expire on the date mentioned in the memorandum, unless sixty days prior to the date of expiry the dealer requests HMT for continuation. It is not the applicant's case that any such request for extension has come from the dealer sixty days prior to expiry of the term of Memorandum of Understanding. The memorandum also expressly provides that if upon termination of the Memorandum of Understanding howsoever occasioned HMT makes supplies to the dealer, the supplies shall not imply a continuation or renewal of the Memorandum of Understanding. Therefore, supplies by HMT do not create an extension to the Memorandum of Understanding. 3. According to the plaintiff after expiry of Memorandum of Understanding on 31st March, 1999 it was mutually agreed between the parties that the plaintiff would sell tractors and spares as defendant's agent in Amravati and Solapur districts on certain terms and conditions mentioned in the plaint. The plaintiff claims that the defendant sought some blank signed documents / cheques etc. by way of security, which the plaintiff claims to have furnished, since according to the defendant, the security deposit of Rs.One Lac was small as compared to the volume of the transaction. 4. It was plaintiff's grievance that some nominal accounts were furnished to the plaintiff on the pretext of some internal policies between the company and its offices. It was stated that the company was giving some threats to the plaintiffs and therefore, the plaintiff was constrained to file suit for declaration, accounts, injunction etc. 5. By the application, on which impugned order came to be passed, the present applicant/original defendant stated that in the event of any dispute or difference arising out of or in respect of the Memorandum of Understanding the same shall be referred to the sole arbitrator in terms of Clause 28 of the Memorandum of Understanding. 6. It was further stated that all disputes arising out of the Memorandum of Understanding are subject to the exclusive jurisdiction of Panchkula (Haryana) in terms of Clause 29 of the Memorandum of Understanding. Therefore, the defendant wanted the plaint to be rejected. After considering the reply filed by the plaintiff, the learned trial Judge rejected the application. This is how, the applicant is before this Court. 7. The plaint has to be examined with reference to the averments made therein i.e. the manner in which the plaintiff has framed his pleas and indicated instances of cause of action. Tenability of the plaint cannot be decided with reference to the defence that the defendants takes up. In the absence of Memorandum of Understanding governing the relations of the parties, it would not be open for the defendants to seek to unsuit the plaintiff on the basis of arbitration clause in an expired memorandum, or on the basis of jurisdiction clause in such Memorandum of Understanding. In any case, rejection of application under Order VII, Rule 11 C.P.C does not preclude the defendant from raising defence as may be appropriate by filing written statement if it is permissible to do so now. 8. The learned counsel for the applicant submitted that the plaintiff had raised a claim of Rs. One Lac towards refund of security deposit which, in fact, was made in terms of Memorandum of Understanding dated 4th September, 1997. He submits that since copy of Memorandum of Understanding was not available to him, this fact could not be pointed out before the trial Court. He submits that since the security deposit, refund whereof was sought, was made under the Memorandum of Understanding, suit would be barred and for seeking refund the plaintiff would have to go for arbitration. Now, since this plea was not raised before the trial Court and is sought to be raised for the first time in the revision application this cannot be entertained. 9. In view of this, since the order passed by the learned Judge is not shown to suffer from any error requiring correction in exercise of revisional jurisdiction by this Court, the revision application is rejected. JUDGE RR.