IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 OP(C).No. 3265 of 2011(O) ------------------------- AGAINST THE ORDER DATED 03/09/2011 IN IA 1195/2011 IN OS.31/2011 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): PLAIANTIFF: ---------------------------------------------- M/S.AKAY FLAVOURS & AROMATICS PVT.LTD , AMBUNAD, MALAYIDAMTHIRUTHU PO, ERNAKULAM 683 561, REPRESENTED BY ITS MANAGING DIRECTOR, DR.BALU.P.MALIAKEL. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE, BY ADV. SRI.V.ABRAHAM MARKOS, SRI.MATHEWS K.UTHUPPACHAN, SRI.BINU MATHEW, SRI.TERRY V.JAMES, SRI.B.J.JOHN PRAKASH, SRI.TOM THOMAS (KAKKUZHIYIL). RESPONDENT(S): --------------------------- ICICI BANK LTD, REGISTERED OFFICE AT ICICI BANK TOWERS, BANDRA KURLA COMPLEX, MUMBAI - 400 051, AND BRANCH OFFICE AT RMAG 2ND FLOOR, ADONAI TOWERS, S.A ROAD,KOCHI 682 016. BY ADVS. SRI.SHAJI P.CHALY, SMT.K.JASMIN BABY, SMT.S.K.SREEKALA, SMT.LIJITTA G.MATHEW. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3265/2011 O APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1. TRUE COPY OF LETTER DATED 28.11.2007 ISSUED BY THE RESPONDENTS COCHIN BRANCH TO THE PETITIONER. EXHIBIT P2. TRUE COPY OF ISDA STANDARD AGREEMENT DATED 28.12.2007 EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT. EXHIBIT P3. TRUE COPY OF EARLY TERMINATION NOTICE DATED 12.03.2009 ISSUED FROM THE COCHIN BRANCH OF THE RESPONDENT. EXHIBIT P4. TRUE COPY OF THE PLAINT IN O.S NO.31/2011 DATED 23.11.2010 FILED BY THE PETITIONER BEFORE THE SUB COURT, ERNAKULAM. EXHIBIT P5. TRUE COPY OF APPLICATION DATED 16.2.2011 IN I.A NO. 1195/2011 FILED BY THE RESPONDENT IN O.S NO.31/2011 BEFORE THE HON'BLE SUBORDINATE JUDG'ES COURT, ERNAKULAM. EXHIBIT P6. TRUE COPY OF COUNTER AFFIDAVIT DATED 25.03.2011 FILED BY THE PETITIONER IN I.A NO. 1195/2011 IN O.S NO. 31/2011 BEFORE THE HON'BLE SUBORDINATE JUDG'ES COURT, ERNAKULAM. EXHIBIT P7. TRUE COPY OF WRITTEN STATEMENT DATED 26.05.2011 FILED BY THE RESPONDENT IN O.S NO.31/2011 BEFORE THE HON'BLE SUBORDINATE JUDG'ES COURT, ERNAKULAM. EXHIBIT P8. TRUE COPY OF ORDER DATED 3.9.2011 PASSED BY THE HON'BLE SUBORDINATE JUDG'ES COURT, ERNAKULAM IN I.A NO. 1195/2011 IN O.S 31/2011. EXHIBIT P9. TRUE COPY OF JUDGMENT DATED 03.09.2011 PASSED BY THE HON'BLE SUBORDINATE JUDG'ES COURT, ERNAKULAM IN O.S NO.31/2011. RESPONDENTS' EXHIBITS : N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3265 of 2011 ==================================== Dated this the 14th day of October, 2011 J U D G M E N T Respondent appears through counsel. 2. Petitioner-plaintiff in O.S. No.31 of 2011 of the court of learned Sub Judge, Ernakulam is aggrieved by Exts.P8, and P9 order and judgment (both regarding the same matter) dated 03.09.2011 in O.S. No.31 of 2011. Petitioner sought a declaration that the agreement executed between the parties to the suit is void ab initio, illegal, opposed to public policy and hence unenforceable and sought consequential reliefs. Respondent filed an application under Order VII, Rules 10 and 11 of the Code of Civil Procedure (for short, “the Code”) to reject/return the plaint contending that the court below has no territorial jurisdiction (among other things) to entertain the plaint. Learned Sub Judge heard I.A. No.1195 of 2011 (filed by the respondent) and held that that court has no territorial jurisdiction to entertain the suit. Learned Sub Judge also made certain observations in Ext.P8, as to the maintainability of the suit. Vide Ext.P9, judgment learned Sub Judge directed that the plaint be returned to the petitioner for presentation before the court having jurisdiction in the matter. O.P(C) No.3265 of 2011 -: 2 :- Exhibits P8 and P9 are under challenge in this proceeding. 3. I have heard learned counsel on both sides. 4. Exhibit P8, order though certain observations are made regarding the maintainability of the suit is one under Rule 10 of Order VII of the Code returning the plaint on the finding that court of learned Sub Judge, Ernakulam has no territorial jurisdiction to entertain the suit. This is clear from Ext.P9, judgment as well. The order passed under Rule 10 of Order VII of the Code is subject to an appeal under Rule 1(a) of Order XLIII of the Code. Therefore, the proper remedy of petitioner is to challenge Exts.P8 and/or P9 before the appropriate court under Rule 1(a) of Order XLIII of the Code. 5. Learned counsel for petitioner has pointed out certain observations learned Sub Judge has made as regards maintainability of the suit. But it is seen from Ext.P8, order that notwithstanding whatever observations learned Sub Judge has made the ultimate order is one returning the plaint on the finding that learned Sub Judge has no territorial jurisdiction to entertain the suit. Therefore whatever observations (whether it was necessary or not) are made in Ext.P8, order, it is squarely one falling under Rule 10 of Order VII of the Code which as aforesaid, O.P(C) No.3265 of 2011 -: 3 :- is subject to an appeal. It is submitted by leaned counsel for respondent also that if petitioner is aggrieved by those observations it could be challenged in the appeal that may be preferred against the order returning the plaint. I am also inclined to think so. 6. When this matter came up of hearing on 12.10.2011 this Court directed that the order returning the plaint will stand in abeyance for three weeks from 12.10.2011. Hence the order returning the plaint shall stand in abeyance during the said period of three weeks from 12.10.2011 or till the appellate court passes orders on the application for stay preferred by the petitioner, whichever is earlier. In the light of what I have stated and without prejudice to the right of petitioner to challenge the impugned orders in the appeal that may be preferred under Rule 1(a) of Order XLIII of the Code and challenge the observations made by the learned Sub Judge as to the maintainability of the suit in the said appeal, this Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv