-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.265 OF 2010 IN PETITION NO. 318 OF 2010 IN SUMMARY SUIT (L) NO. 1013 OF 2010 M/s. Godrej & Boyce Manufacturing Co. Ltd. ) having its fofice at Pirojshanagar, L.B.S. Marg, ) Vikhroli, Mumbai-400 079 )..Appellant versus IBM India Private Limited ) Subramanya Aracade 12, Bannerghatta Road, ) Bangalore-560 029 )..Respondent Mr. D.D. Madon, Senior Advocate, with Mr. Rohan Cama, instructed by M/s. Bachubhai Munim & Co., for the appellant. Mr. S. Peerzade, for the respondent. CORAM: P.B. MAJMUDAR & ANOOP V. MOHTA, JJ. DATE: OCTOBER 18, 2010. ORAL JUDGMENT: (Per P.B. Majmudar, J.) The appellant is the original plaintiff who instituted Summary Suit (Lodging) No. 1013 of 2010 against the respondent-original defendant. The plaintiff has filed the said suit to recover certain amount on the basis of the transaction entered into between the plaintiff and the defendant for supply of chairs to the defendant. It is not in dispute that the plaintiff manufactured the said chairs at its factory situate at Vikhroli, Mumbai, from where the said chairs -2- were transported to the defendant’s office at Pune. The agreement between the parties was executed on 14th November, 2006. The parties also executed a statement of work dated 15th November, 2006. The plaintiff has given description of the material sent to the defendant i.e. about 976 chairs. The appellant herein thereafter as per the purchase orders, submitted invoices in respect of the supply of products. It is the case of the appellant that in all 41 invoices were submitted and ultimately since the defendant failed to make any payment, the said suit has been filed for recovery of Rs. 35,13,600/- with interest at the rate of 18 per cent. 2. In the said suit, the appellant submitted a petition being Petition No. 318 of 2010 seeking leave under Clause XII of the Letters Patent to institute the suit in this Court. The learned single Judge rejected the said petition by not granting leave to institute the suit on the Original Side of this Court and, therefore, this appeal is filed. 3. Mr. Madon, learned senior counsel appearing for the appellant, submitted that the part of the cause of action and in fact substantial part of the cause of action has arisen within the jurisdiction of this Court. In paragraph 28 of the plaint, the cause of action is worded by the plaintiff as under. “28. The Plaintiff states that the plaintiff has its registered office at Mumbai and the Defendant has its registered office at -3- Bannerghatta Road, Bangalore. The said Base Agreement and the Statement of Work were both signed by the Plaintiff at Mumbai. The invoices were raised and issued by the Plaintiff from Mumbai. The outstanding amount was payable to the Plaintiff at Mumbai. The deliveries of chairs under the aforesaid purchase orders were made from Mumbai office of the Plaintiff to Pune office of the Defendant. Accordingly, the Plaintiff submits that the substantial part of the cause of action has arisen at Mumbai, and this Hon’ble Court has the exclusive jurisdiction to try, entertain and dispose of this suit with leave under Clause XII of the Letters Patent since part of the cause of action relating to deliveries of products were supplied outside Mumbai.” Mr. Madon has also taken us to page 29 of the paper book which clearly shows that the supplier’s address is given as Pirojshahnagar, Vikhroli, Mumbai-400 079. Since the goods have been supplied from Vikhroli and the same have been received by the Defendant at Pune and that the agreement was also executed at Mumbai and the defendant executed the agreement at Bangalore, in our view, substantial part of the cause of action can be said to have arisen in Mumbai. The common law principle i.e. the debtor must find the creditor can also be said to be applicable, though of course from the agreement in question it is clear that the part of the cause of action has arisen within the territorial jurisdiction of this Court. Even otherwise, since the goods were supplied from the plaintiff’s factory at Vikhroli, in our view, the learned single Judge should have granted leave under clause XII of the Letters Patent. In view of what is stated in paragraph 28 of the plaint, leave as prayed for by the plaintiff ought to have been granted. -4- 4. Mr. Madon has relied upon the observations of this Court in the case of Bharumal Udhomal and others vs. Sakhawatmal Veshomal and others1 wherein it has been observed by the Division Bench as under. “If there is no inconsistency between Section 49 and the common law rule, there is no reason to hold that in a case like this where there is a loan advanced by the creditor to the debtor, the contract makes no mention as to where the amount should be repaid and the debtor has made no application to the creditor asking him to fix the place of performance why the common law rule that the debtor should find out his credit should not apply. The common law rule is a reasonable rule and it is in conformity with justice and equity because it recognises the obligation of the debtor to pay his debt and that obligation can only be discharged by the debtor going to his creditor and repaying the amount, and the common law rule imposes this obligation only when there is no express contract to the contrary. But whatever our view of Section 49 may be, if the view taken by the Division Bench is that the common law rule has been displaced by Section 49 we would be bound by it. “ 5. Considering the aforesaid, this appeal is allowed. The order of the learned single Judge refusing leave under clause XII of the Letters Patent is set aside. The plaintiff is granted leave under clause XII of Letters Patent to file the suit on the Original Side of this Court. Appeal is accordingly allowed with no order as to costs. P. B. MAJMUDAR, J. ANOOP V. MOHTA, J. 1 AIR 1956 Bombay 111