1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APEAL NO.322 OF 2011 IN CHAMBER SUMMONS NO.1778 OF 2007 IN SUIT NO.2966 OF 2006 M/s.Cutch Automobiles Engineering Works .. Appellant V/s Surendra Singh Babla & Ors. .. Respondents Mr.V.Y.Sanglikar with Ms.Devika Nigade i/by M/s.Divya Shah Associates for the Appellant. Mr.Hemang Engineer i/by Gordhandas & Fozdar for the Respondents. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATE: 4th August, 2011. P.C.: 1. Admit. Heard finally by consent of the parties. 2. Appellant is the plaintiff. Plaintiff has filed suit seeking a money decree against the Defendants in the amount of Rs.30 lakhs. In Paragraph No.6 of the plaint, the plaintiff has stated thus:- “5. The Plaintiffs say that at the instance of Defendant No.4, the Plaintiffs, on 20th December, 2003, they requested their bankers, The Memon Co-operative Bank Limited to issue three demand drafts aggregating to Rs.59,00,000/- (Rupees Fifty Nine Lacs only) in favour of Defendant Nos.1, 2 and 3. Pursuant to the request made by the Plaintiffs, their bankers, 2 the Memon Co-operative Bank Limited issued Draft No. 161085 for Rs.29,00,000/- (Rupees Twenty Nine Lacs only) in favour of Defendant No.1, Draft No.161086 for Rs.20,00,000/- (Rupees Twenty Lacs only) in favour of Defendant No.2 and Draft Nos.161087 and 161077 for Rs.5,00,000/- (Rupees Five Lacs only) each in favour of Defendant No.3.” 3. In Paragraph No.17 of the plaint, the plaintiff has stated thus:- “17. The Plaintiffs submit that the aforesaid Demand Drafts aggregating to Rs.59,00,000/- (Rupees Fifty Nine Lacs Only) were at the instance and request made by the Defendant No.4 in Mumbai handed over by the Plaintiffs’ partner, one Mr.Vinod M.Tandon to Defendant Nos.1, 2 and 3 in Mumbai and Defendant Nos.1, 2 and 3 agreed to sell the said plot of land situated on the Pubjab National Highway at Phillor to the Plaintiffs in Mumbai. The Plaintiffs submit that as the aforesaid transaction did not materialize, the Defendants have become jointly and severally liable to repay the aforesaid amount of Rs.30,00,000/- (Rupees Thirty Lacs Only) alongwith interest to the Plaintiffs in Mumbai. The Plaintiffs further submit that it is well settled rule that debtor is required to find the creditor and as the Plaintiffs are residents of Mumbai, the aforesaid amounts claimed in the suit are due and payable by the Defendants to the Plaintiffs in Mumbai. The Plaintiffs submit that the material part of cause of action has arisen in Mumbai. However, the Defendants were required to sell the said plot of land to the Plaintifs in Punjab, which is outside Mumbai and the Defendants are also residing outside Mumbai. That part of the cause of action has arisen outside the jurisdiction of this Hon’ble Court. Hence, this Hon’ble Court with leave granted under clause 12 of the Letters Patent, has jurisdiction to entertain, try and dispose of the present suit.” 4. On the basis of these averments, it was the case of the plaintiff that part of the cause of action for institution of the suit has accrued to the plaintiff in Mumbai, within the original jurisdiction 3 of this Court. Therefore, the plaintiff filed petition for leave under Clause 12 of the Letters Patent. That leave was granted to the plaintiff. It appears that the Defendants applied for revocation of that leave by taking out Chamber Summons No.1778 of 2007. The learned Single Judge of this Court by order dated 11.04.2011 has revoked that leave. Plaintiff therefore is in appeal against that order. 5. We have heard learned counsel for both sides. We have already quoted portion from Paragraph No.6 of the plaint and Paragraph No.17 of the plaint. While deciding the petition filed under clause 12 of the Letters Patent, the Court has to go by the averments in the plaint taking them at their face value so as to decide whether the plaintiff is entitled to leave under Clause 12 of the Letters Patent. The Court while granting leave does not decide the question of jurisdiction of the Court, and after the Defendants appear and file written statement and in case the Defendants dispute the averments in the plaint in relation to the accrual of part of the cause of action in Mumbai, the Court can frame issue and decide that issue on the basis of averments of both sides. At this stage the Court is free to come to the conclusion that no part 4 of the cause of action has arisen in Mumbai and the Court may thereafter dismiss the suit or return the plaint for production to the appropriate Court, but all that has to take place at the trial of the suit. The only purpose of grant of leave under Clause 12 of the Letters Patent is to enable the Court to entertain the suit, and by grant of leave under Clause 12 of the Letters Patent no question is finally decided. 6. In this view of the matter, in our opinion, the learned Single Judge should not have revoked the leave granted. Appeal therefore succeeds. Appeal is allowed. The order impugned is set aside. Chamber Summons Nos.1778 of 2007 is dismissed. 7. It is clarified that in case the Defendants raise the plea in their written statement that this Court does not have jurisdiction to try the suit, the trial Court shall frame the issue and decide the same on the basis of material that may come before the Court. Appeal is disposed of. (R.G.KETKAR, J.) (D.K.DESHMUKH, J.)