IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1103 OF 2007 . CHAMBER SUMMONS NO.1103 OF 2007 . CHAMBER SUMMONS NO.1103 OF 2007 . IN IN IN SUIT NO.418 OF 2006. SUIT NO.418 OF 2006. SUIT NO.418 OF 2006. Videocon Industries Ltd. ..Plaintiffs versus R.Ramkrishnan & Anr. ..Defendants Mr.R.D.Soni i/b. Ram & Co. for the Plaintiffs Mr.Shyam Mehta with N.M.Shah & V. Shankar for the Defendant Nos.1 & 2 in applicant in support of Chamber Summons CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 14th Oct., 2008. DATED : 14th Oct., 2008. DATED : 14th Oct., 2008. P.C. 1. The plaintiffs filed suit against the defendants to recover certain amounts covered by the agreement of guarantee purported to have been executed by the defendants who have their office premises and place of business at Coimbatore. The plaintiffs have made averments in para 22 of the plaint and by that paragraph the plaintiffs have claimed that this Court has jurisdiction to try and entertain the present suit. Plaintiffs in the said paragraph sought leave of this Court under Clause 12 of the Letters Patent and that leave came to be granted on 10.1.2006. The defendants were served. Summons for Judgement was taken out and this -2- Chamber Summons for revocation of the leave granted under Clause 12 of Letter Patent is taken out. Parties have completed the pleadings. I have heard learned advocates on both the sides. Judgment in case of Arun Digambar Varangaonkar vs. Kharpe Gruh Arun Digambar Varangaonkar vs. Kharpe Gruh Arun Digambar Varangaonkar vs. Kharpe Gruh Udyog & Ors. reported in AIR 1997 Bombay 299 Udyog & Ors. reported in AIR 1997 Bombay 299 Udyog & Ors. reported in AIR 1997 Bombay 299 was relied upon by the learned advocate for the defendants to contend the leave granted by the Court can be revoked in a proceeding taken out by the defendant. Perusal of the said judgment would go to show that the Court can revoke the leave if the Court is satisfied about the need to revoke the same. Hence the present application in the nature of Chamber Summons is maintainable. 2. The question as regards grant of leave is to be decided on two points. If the entire cause of action has arisen within the jurisdiction of the Court namely Bobby, there is no question of applying for leave of the Court under Clause 12. If a part of cause of action has arisen in Mumbai and if the defendants are residing outside the jurisdiction of the court then obtaining leave of the Court becomes necessary. Since the plaintiffs themselves have mentioned and sought leave of the -3- Court as set out in paragraph 22 it can be safely observed that the plaintiffs admit that the entire cause of action does not arise within the limits of this Court. 3. The next question is whether a part of cause of action has arisen within the limits of this Court and if the answer is in affirmative whether leave was required as defendants reside and carry on business beyond the territorial limits of this Court. 4. The present suit is filed for recovery of monies on the basis of an agreement purported to have been executed by the plaintiffs on one hand and the defendants on other which is titled as Agreement of Guarantee. The plaintiffs claim that they had executed Lease Deed with a company by name M/s. Shree Sharda Parmeshwari Textiles (hereinafter referred to as the said company) and the said company was required to pay Lease rent and defendants had by the Agreement of Guarantee (hereafter referred to as Suit Agreement) undertaken to pay the lease rent. According to plaintiffs, because the said company failed to -4- comply with their contractual obligation in the matter of payment of lease rent, the plaintiffs decided to enforce the suit agreement and recover the lease rent from the defendants. It is in these circumstances, the plaintiffs have approached this Court for recovery of lease rentals. 5. By now it is well settled that the averment in the plaint would decide jurisdiction of this Court. For the sake of convenience it would be proper to reproduce the relevant portion of paragraph 22 on the basis of which the plaintiffs claim that this Court has jurisdiction to try and entertain the suit subject to grant of leave under clause 12. Relevant paragraph is as under: "The said lease agreements were executed and delivered to the plaintiffs in Mumbai. Under clause 2.1 of the Lease Agreements, the lease rentals were payable to the plaintiffs at their office at Mumbai. The Guarantee was executed by the defendants and delivered to the plaintiffs in Mumbai. The leased machineries were to be redelivered to the plaintiffs in Mumbai. -5- The aforesaid material part of the cause of action has arisen in Mumbai, while the defendants reside and/or carry on business and/or work for gain in Coimbatore outside the jurisdiction of this Hon’ble Court." 6. Perusal of the suit agreement would go to show that for the purpose of execution of suit agreement non judicial stamp paper issued by State of Tamilnadu have been used and the stamps have been purchased from Madras. A further perusal of the suit agreement would go to show that in the agreement the date when the said agreement came to be executed is not mentioned. The place where the suit agreement came to be entered into is also not mentioned. This is being stated on the basis of the xerox copy of the suit agreement which is being annexed to the plaint. Learned Advocate Mr. Soni appearing on behalf of the plaintiffs had across the bar, upon instructions made a statement that the xerox copy of the suit agreement annexed to the plaint is true Xerox of the original agreement. If this be so, the document is silent about the date when the said document was executed. The document is also silent as to the place where the said -6- document was executed. 7. Two points have been pressed in service so as to say that the material part of cause of action arose in Mumbai. According to the plaintiffs, the lease rentals were payable by the said company to the plaintiffs and for that clause No.2(1) of the agreement purported to have been executed between the plaintiffs and said company on 29.3.1995 was relied upon. One may not dispute the said clause and it is clear that the lease rentals were payable at Mumbai. It was sought to be pointed out by the learned Advocate Mr. Soni for the plaintiffs that in paragraph 22 as specific averment is made out to say that the suit agreement was executed by the defendants and delivered to the plaintiffs in Mumbai. According to learned Advocate Mr. Soni appearing on behalf of the plaintiffs two points, namely payment of lease agreement at Mumbai and execution of suit agreement at Mumbai delivered by the same to the plaintiffs at Mumbai will constitute material part of the cause of action. According to him the genesis of the suit was lease agreement and therefore payment of lease rent in Mumbai will play a dominant role -7- in deciding the jurisdiction of the Court for recovery of the lease rental from the guarantors. 8. I have considered the text of the suit agreement as well as paragraph 22 of the suit. As indicated earlier there is nothing to suggest that the suit agreement was executed at Mumbai. In the normal course it is customary to mention in the document as to the place where the agreement is executed , and if the suit agreement was executed at Mumbai and it was the intention of the plaintiffs to have it delivered at Mumbai, nothing prevented the plaintiffs to have mentioned in the suit agreement that it was executed at Mumbai. It is true that the plaintiffs have made a solemn statement in paragraph 22 that the suit agreement was executed at Mumbai. Learned Counsel Mr. Soni wants this Court to accept this bare statement to say that suit agreement was executed and delivered at Mumbai and consequently this Court has jurisdiction as material part of the cause of action has arisen in Mumbai. I am not inclined to accept this submission. It is true, that the averment is to be found in the plaint by which the plaintiffs claim that the suit agreement was -8- executed at Mumbai but such a bare averment by itself cannot be accepted because there is nothing to show that the suit agreement was executed at Mumbai. 9. It was necessary for the plaintiffs to come out with certain clarificatory averments to show as to how the defendants who carry on the business at Combaitore i.e. a place far away from Mumbai, came to Mumbai to execute the suit agreement. This is being stated on the basis that there is no specific mention in the suit agreement to show that it was executed at Mumbai. It is also required to be noted that the suit agreement is on a stamp paper issued at Madras. If the suit agreement was executed at Mumbai, the non-judicial paper issued in Mumbai or any place nearby Mumbai would have been used. In my view merely because the plaintiffs claim that the suit agreement was executed at Mumbai, is not sufficient to say that the suit agreement was executed at Mumbai. The contention of the plaintiffs that the payment of lease rent at Mumbai will have no bearing on the question of jurisdiction of the Court as lease rent was payable by said company. rent was to be paid. -9- This suit is not filed for recovery of lease rent on the basis of the lease agreement. This suit is filed on the basis of suit agreement. Learned advocate for the plaintiffs could not show from the suit agreement that the lease rent was payable by the defendants at Mumbai. The bare word of the plaintiffs that lease rent was payable at Mumbai by defendants. . For the reasons mentioned aforesaid, I am inclined to observe that the stand of the plaintiffs that the material part of cause of action has arisen in Mumbai cannot be accepted and if that be so, taking into consideration the fact that the defendants carry on the business outside the limits of Mumbai and reside outside Mumbai, grant of leave under Clause 12 of letters patent is required to be revoked. Leave under Clause 12 can’t br granted if the material part of the cause of action has not arisen in Mumbai. In view of the above, the the Chamber Summons can be made absolute in terms of prayer clause (a). Leave granted to the plaintiffs on 10.1.2006 under Clause 12 of the letters patent will have to be revoked. Consequently, this Court shall have no jurisdiction -10- to try and entertain the suit and as such the plaint will have to be returned to the plaintiffs for filing it to the proper Court. Accordingly, I pass the following Order: ORDER . Chamber Summons is made absolute in terms of prayer clause (a). Leave granted to plaintiffs vide clause 12 of Letters Patent on 10.1.2006 is revoked. Consequently, this Court has no jurisdiction to try and entertain this suit. Hence, it is hereby ordered that the plaint be returned to plaintiffs for filing it to the proper Court. 01.12.2008 is the date fixed for return of the plaint to the plaintiffs. The Prothonotary & Sr. Master shall return the plaint to the plaintiffs on 1.12.2008 for filing the plaint in the proper court. . In the facts and circumstances of the case, there shall be no order as to costs in the Chamber Summons. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)