1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1534/2010 ( Mrs. Varsha A Maheshwari -: VERSUS :- M/s. Bhushan Steel Limited & another ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 22, 2010. Heard Shri Ajay Maheshwari power of attorney holder for petitioner in person and Adv. Shri Dewani for respondent no.2. By impugned order dated 10/3/2010 the 3rd Joint Civil Judge (Senior Division), Nagpur has granted unconditional leave to defendant to respondent no.1 in S.C.S. No.78/2009. Shri Maheshwari argues that the Trial Court has not looked into necessary ingredients and without recording necessary findings the leave has been granted. He points out that after the goods were supplied and consumed there was no complaint for about 9 months and after 9 months grievance about supply of inferior quality of goods has been made and on that account fraud has been alleged. He also points out that as per bill conditions, the payment was due within 7 days. According to him the defence of inferior quality of material supplied or fraud therein are by way of after thought. He states that these contentions are not evaluated by impugned order. According to him as the 2 defendant no.1 has agreed to make payment of outstanding amount and has backed out only when the payment was demanded, the Trial Court ought to have asked him to pay entire amount if leave was at all to be granted. On the other hand, Adv. Shri Dewani states that in purchase order there was a condition which restricts jurisdiction only to Court at Katak and also there is mis-joinder in as much as employee of respondent no.3 is joined as defendant no.2 in summary suit. He contends that the Court at Nagpur therefore, does not possess jurisdiction. He invites attention to various judgments pressed into service before the Trial Court for said purpose. Because of those judgments and other facts, the Trial court has fond prima facie case in favour of the present respondent no.1. Shri Maheshwari in reply states that the stipulation of exclusive jurisdiction in purchase order is not legal and the Court at Nagpur possesses the jurisdiction as nothing occurred at Cuttak. He further states that the Trial Court has not evaluated the situation in this respect. According to him the question of jurisdiction or mis-joinder of parties ought to have been considered properly and leave to defend could not have been granted so as to enable the respondent no.1 to contest the claim on merit. Even at this stage before this Court he is questioning that order and praying for directing the respondent no.1 to deposit the amount in dispute as the petitioner is entitled to a judgment. Perusal of impugned order reveals that Trial Court has avoided to record any specific findings and mixed the issues like jurisdiction of Court and alleged mis-joinder of parties with other issues specially of inferior quality of goods and 3 practicing fraud on defendants. The alleged supply of inferior quality of goods or alleged fraud may entitle the respondent to a leave. However, the issue of jurisdiction or mis-joinder by itself unless a prima facie findings on them are recorded would not entitle them to such a leave. The Trial Court has not recorded any findings on these issues and only because of question of jurisdiction raised it has proceeded to grant the leave to defend unconditionally. The impugned order is therefore, unsustainable. Though Shri Maheshwari has opposed the remand and has insisted for grant of an order of payment, I find that the facts not looked into by the Trial Court cannot be evaluated by this Court for the first time. The Trial Court shall reconsider the application at Exh.16 in accordance with law and thereafter shall proceed to pass orders, decide the issue whether there is any substance in case of alleged supply of inferior quality goods or alleged theory of fraud in the matter. The Trial Court shall first consider the aspect of jurisdiction and mis-joinder of parties after hearing both the parties. If the Trial Court finds that there is no substance in the said challenge the Trial Court shall proceed further to evaluate the other issues. The parties to appear before 4th Joint Civil Judge (Senior Division), Nagpur (Trial Court) on 31st of July 2010 and the Court shall decide Exh.16 finally after hearing the parties in accordance with law by 30th of September 2010. Rule accordingly. No order as to costs. JUDGE Tambaskar.