M/S EXL CAREERS AND ANOTHER versus FRANKFINN AVIATION SERVICES PRIVATE LIMITED
[2020] 6 S.C.R. 289, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Facts
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M/S EXL CAREERS AND ANOTHER
v.
FRANKFINN AVIATION SERVICES PRIVATE LIMITED
(Civil Appeal No. 2904 of 2020)
AUGUST 05, 2020
[R. F. NARIMAN, NAVIN SINHA AND
INDIRA BANERJEE, JJ.]
Code of Civil Procedure, 1908:
Order VII Rules 10 and 10A – Return of the Plaint – To be
presented in the Court having appropriate jurisdiction – Whether
the suit to proceed de novo or to continue from the stage where it
was pending at the time of return of the plaint – Held: Where the
suit is returned to be presented in the Court of appropriate
jurisdiction, the suit shall proceed de novo.
Constitution of India:
Arts. 136 and 142 – Suit for recovery – Territorial jurisdiction
questioned – Objection rejected – Later territorial jurisdiction
objected to on the basis of exclusionary jurisdiction clause in the
agreement between the parties – Objection rejected – In Revision
High Court directed return of the file, on the ground of the
exclusionary jurisdiction clause, to the Court of appropriate
jurisdiction – Civil Judge transferred the file to the Court having
jurisdiction – In Revision High Court rejected the contention of de
novo trial raised by the defendant – Appeal to Supreme Court –
Held: Though High Court was not correct in refusing de novo trial,
in the facts of the case, in order to do complete justice between the
parties, in exercise of power of Arts. 136 and 142 impugned order
is not set aside – Code of Civil Procedure, 1908 – Order VII rr. 10
and 10 A.
Disposing of the
appeal, the Court
HELD: 1.1 It is no more res-integra that in a dispute between
parties where two or more courts may have jurisdiction, it is
always open for them by agreement to confer exclusive jurisdiction
by consent on one of the two courts. Clause 16B of the agreement
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between the parties leaves no doubt that the parties clearly
indicated that it was only the court at Delhi which shall have
exclusive jurisdiction with regard to any dispute concerning the
franchise agreement and no other court would have jurisdiction
over the same. In that view of the matter, the presentation of the
plaint at Gurgaon was certainly not before a court having
jurisdiction in the matter. [Para 13][297-C-E]
1.2 The mere use of the words ‘return the file’ by the High
Court in Revision in the order dated 05.09.2017 cannot enlarge
the scope of jurisdiction under Order VII Rule 10 CPC to mean
that the High Court has directed so with the intention for
continuance of the suit. Firstly, that objection was expressly
rejected. Secondly the order itself states that the file be returned
under Order VII Rule 10 and 10A CPC. Clearly what the High
Court intended was the return of the plaint. [Para 11][296-F-G]
1.3 There is no contradiction in the law as laid down in
*Modern Construction case pronounced after consideration of the
law and precedents requiring reconsideration in view of any
conflict with **Joginder Tuli case. *Modern Construction case lays
down the correct law. [Para 17][299-D]
1.4 Order VII Rule 10-A was inserted by the Code of Civil
Procedure (Amendment) Act, 1976 (with effect from 01.02.1977)
in order to obviate the necessity of serving summonses on the
defendants where the return of plaint is made
after the appearance
of the defendant in the suit. Also, under sub-rule (3) all that the
Court returning the plaint can do, notwithstanding that it has no
jurisdiction to try the suit is to fix a date of appearance in the
Court where plaint is to be filed after its return. The language of
Order VII Rule 10-A is in marked contrast to the language of
Section 24(2) and Section 25(3) of the Code of Civil Procedure.
In cases dealing with transfer of proceedings from a Court having
jurisdiction to another Court, the discretion vested in the Court
by Sections 24(2) and 25(3) either to retry the proceedings or
proceed from the point at which such proceeding was transferred
or withdrawn, is in marked contrast to the scheme under Order
VII Rule 10 read with Rule 10-A where no such discretion is
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given and the proceeding has to commence de novo. [Paras 19,
20 and 21][299-F-H; 300-A, C-D, G-H]
Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013)
9 SCC 32 : [2013] 7 SCR 581; State of West Bengal v.
Associated Contractors (2015) 1 SCC 32 : [2014] 10
SCR 426; Amar Chand Inani v. The Union of India
(1973) 1 SCC 115 : [1973] 2 SCR 684; *Oil and natural
Gas Corporation Ltd. v. Modern Construction & Co.
(2014) 1 SCC 648 : [2013] 10 SCR 466; Ramdutt
Ramkissen Dass v. E.D. Sassoon & Co. AIR 1929 PC
103 : Hanamanthappa v. Chandrashekharappa, (1997)
9 SCC 688 : [1997] 1 SCR 846; Harshad Chimanlal
Modi (II) v. DLF Universal Ltd. (2006) 1 SCC 364 :
[2005] 5 Suppl. SCR 740 – relied on.
**Joginder Tuli v. S.L. Bhatia (1997) 1 SCC 502 :
[1996] 7 Suppl. SCR 221 – held per-in-curium and
distinguished.
Oriental Insurance Company Ltd. v. Tejparas Associates
and Exports Pvt. Ltd. [2019] 9 SCC 435 – overruled.
R.K. Roja v. U.S. Rayudu (2016) 14 SCC 275 : [2016]
3 SCR 221 – held inapplicable.
2. In the peculiar facts and circumstances of the present
case, because the appellant did not raise the objection under
clause 16B of the agreement at the very first opportunity, the
first order of rejection attained finality, the objection under clause
16B was raised more as an after-thought, the second application
under Order VII Rule 10 CPC had to be preferred by the
respondent, that pleadings of the parties have been completed,
evidence led, and that the matter was fixed for
final argument,
despite having concluded that the impugned order is not
sustainable in view of the law laid down in the *Modern
Construction case, in exercise of discretionary jurisdiction under
Article 136 of the Constitution and in order to do complete and
substantial justice between the parties under Article 142 of the
Constitution, in the peculiar facts and circumstances of the case,
nonetheless the impugned order of the High Court is not set
aside. [Para 27][300-C-E]
M/S EXL CAREERS AND ANOTHER v. FRANKFINN
AVIATION SERVICES PRIVATE LIMITED
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Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer AIR
1965 SC 95 : [1964] 7 SCR 49; Balraj Taneja v. Sunil
Madan (1999) 8 SCC 396 : [1999] 2 Suppl. SCR 258;
ONGC Ltd. v. Sendhabhai Vastram Patel (2005) 6 SCC
454 : [2005] 2 Suppl. SCR 448; Shin-Etsu Chemical
Co. Ltd. (2) v. Vindhya Telelinks Ltd., (2009) 14 SCC
16; Karam Kapahi v. Lal Chand Public Charitable Trust
(2010) 4 SCC 753 : [2010] 4 SCR 422 – relied on.
Case Law Reference
[2013] 7 SCR 581
relied on
Para 13
[2014] 10 SCR 426
relied on
Para 14
[1973] 2 SCR 684
relied on
Para 15
[2013] 10 SCR 466
relied on
Para 16
[1997] 1 SCR 846
relied on
Para 16
[2005] 5 Suppl. SCR 740
relied on
Para 16
[1996] 7 Suppl. SCR 221
held per-in-curiam
Para 15
and distinguished
(2019) 9 SCC 435
overruled
Para 18
[2016] 3 SCR 221
held inapplicable
Para 22
[1964] 7 SCR 49
relied on
Para 23
[1999] 2 Suppl. SCR 258
relied on
Para 24
[2005] 2 Suppl. SCR 448
relied on
Para 25
(2009) 14 SCC 16
relied on
Para 26
[2010] 4 SCR 422
relied on
Para 26
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2904
of 2020.
From the Judgment and Order dated 13.03.2018 of the High Court
of Punjab and Haryana at Chandigarh in CR No. 1602 of 2018.
Manoj Swarup, P. S. Patwalia, Sr. Advs., Ankit Swarup, Naveen
Kumar, Jawad Tariq, Neelmani Pant, Ms. Vidisha Swarup, Kulvinder
Singh Kohli, Ms. Meenakshi Midha, Kapil Midha, Ms. Abhivandana
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Chowdhury, Ms. Pritika Juneja, Amandeep Singh Bhullar, Chander
Shekhar Ashri, Advs. for the appearing parties.
The Judgment of the Court was delivered by
NAVIN SINHA, J.
1. Leave granted.
2. The present appeal has been placed before us on a reference
by a two Judge Bench opining a perceived conflict between two Division
Bench decisions in Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502
and Oil and Natural Gas Corporation Ltd. v. Modern Construction
& Co., (2014) 1 SCC 648. The question of law we are required to answer
is that if a plaint is returned under Order VII Rule 10 and 10A of the
Code of Civil Procedure 1908, (hereinafter called as “the Code”) for
presentation in the court in which it should have been instituted, whether
the suit shall proceed de novo or will it continue from the stage where it
was pending before the court at the time of returning of the plaint. The
order of reference also leaves it open for consideration if the conduct of
the appellant disentitles it to any relief notwithstanding the decision on
the issue of law.
3. The respondent filed a suit for recovery against the appellant
arising out of a franchise agreement dated 24.03.2004, before the Civil
Judge (Sr. Division) at Gurgaon. In view of the exclusion clause in the
agreement, the plaint was returned holding that the court at Gurgaon
lacked territorial jurisdiction and that the court at Delhi alone had
jurisdiction in the matter. The High Court by the impugned order dated
13.03.2018 has held that the suit at Delhi shall proceed from the stage at
which it was pending at Gurgaon before return of the plaint and not de
novo. Aggrieved, the appellant preferred the present appeal. Further
proceedings were stayed on 13.07.2018 culminating in the order of
reference.
4. Shri Manoj Swarup, learned senior counsel appearing on behalf
of the appellant, submitted that there is no conflict between the decisions
in Joginder Tuli (supra) and Modern Construction (supra) requiring
consideration by a larger Bench. The latter lays down the correct law
that the suit will have to proceed de novo at Delhi and cannot be continued
from the earlier stage at Gurgaon. Joginder Tuli (supra) cannot have
any precedential value not being based on consideration of the law, but
having been passed more in the facts of that case.
M/S EXL CAREERS AND ANOTHER v. FRANKFINN
AVIATION SERVICES PRIVATE LIMITED
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5. Shri Swarup submitted that the High Court erred in not
appreciating that it was not exercising transfer jurisdiction under Section
24 of the Code. The plaint could be returned at any stage of the suit
under Order VII Rule 10 and 10A. The fact that the pleadings and
evidence may have concluded before the Gurgaon court was
inconsequential. The suit was filed on 06.01.2011. The appellant had
preferred the objection under Order VII Rule 10 promptly on 26.08.2011.
Order XVIII Rule 15 also could not be invoked in view of the nature of
jurisdiction conferred under Rule 10 for return of the plaint. Rule 10A is
only a sequitur with regard to the procedure to be followed for the
same. It cannot be interpreted as providing for continuation of the suit.
The High Court in the first revisional order dated 05.09.2017 had rejected
the objection with regard to the advanced stage at which the suit was at
Gurgaon. The mere use of the words ‘return the file’ are irrelevant and
cannot be construed as enlarging the scope of jurisdiction under Order
VII Rule 10. The order attained finality as no appeal was preferred
against the same. Significantly under Order VII Rule 10A fresh summons
had to issue upon presentation of the plaint before the court of competent
jurisdiction. Shri Swarup in this context referred to Order IV Rule 1 with
regard to the institution of the suit by presentation of a plaint and issuance
of summons under Order V
Rule 1 to contend that under Rule 10A
when summons are issued by the new court where the plaint is presented
the proceedings go back to the inception of the suit by institution.
6. In support of his submission that the suit has necessarily to
proceed de novo on return of the plaint, he relied upon Ramdutt
Ramkissen Dass vs. E.D. Sassoon & Co., AIR 1929 PC 103; Amar
Chand Inani vs. The Union of India, (1973) 1 SCC 115; Harshad
Chimanlal Modi (II) vs. DLF Universal Ltd., (2006) 1 SCC 364 and
Hasham Abbas Sayyad vs. Usman Abbas Sayyad, (2007) 2 SCC 355,
to submit that the institution of the suit at Gurgaon being coram non
judice the suit had necessarily to commence de novo at Delhi.
7. Shri P.S. Patwalia, learned senior counsel appearing for the
respondent, submitted that the special leave petition suffers from
suppression of material facts. Had the materials placed in the counter
affidavit been brought to the attention of the court perhaps the special
leave petition may not have been entertained. The appellant in his first
objection did not raise the ground under the exclusion clause 16B of the
agreement but limited it to the grounds that no business was carried on
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at Gurgaon and that defendant no.2 did not reside there also. The first
order of rejection dated 12.03.2015 has not been annexed to the appeal.
Thereafter jurisdiction was framed as a preliminary issue which was
again decided in favour of the respondent on 06.09.2016. The revision
by the appellant having been allowed by the High Court on 05.09.2017,
it did not take any steps for having the plaint retuned to the respondent.
It was left for the respondent to file a fresh application under Order VII
Rule 10 praying for transfer of the entire judicial file from Gurgaon to
Delhi considering the advanced stage of the suit which was allowed by
the Civil Judge and affirmed in the impugned order by the High Court.
8. Shri Patwalia next submitted that the High Court on 05.09.2017
had consciously directed for return of the file. Nothing precluded the
High Court from directing the return of the plaint. The Trial Court has
justifiably reasoned that the order of the High Court for return of the file
was based on the premise of the advanced stage of the suit for
continuation of the same at Delhi, as otherwise it would be a travesty of
justice if the suit was to proceed de novo at Delhi. The High Court
correctly affirmed the same by the impugned order. The present was
not a case where the Gurgaon court lacked complete jurisdiction. The
respondent has been non suited at Gurgaon only in view of the
exclusionary clause at 16B of the franchise agreement. It shall be a
question on the facts of each case, if the trial should proceed afresh or
continue from the earlier stage and the matter could not be put in a
straight jacket. The present being a case of overlapping jurisdictions it
would be a travesty of justice and will cause great injustice and prejudice
to the respondent if the suit is directed to proceed de novo at Delhi. Shri
Patwalia relied upon R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275
and Oriental Insurance Company Ltd. vs. Tejparas Associates and
Exports Pvt. Ltd., (2019) 9 SCC 435, to submit that the latter also follows
Joginder Tuli (supra).
9. We have considered the submission on behalf of the parties
and considered the materials on record. The franchise agreement was
executed between the parties at New Delhi on 24.03.2004 for running
courses in Aviation, Hospitality and travel Management at Meerut in
accordance with the prescriptions and standards of the respondent.
Clause 16B of the agreement stipulated as follows:
“B. JURISDICTION
M/S EXL CAREERS AND ANOTHER v. FRANKFINN
AVIATION SERVICES PRIVATE LIMITED [NAVIN SINHA, J.]
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Only Courts in Delhi shall have exclusive jurisdiction to settle all
disputes and differences arising out of the AGREEMENT, whether
during its term or after expiry/earlier termination thereof.”
10. The respondent on 06.01.2011 instituted a suit before the Civil
Judge (Sr. Division) at Gurgaon against the appellant for recovery of
Rs.23,11,190/-. The appellant filed an application under Order VII Rule
10 CPC on 26.08.2011 contending that the Gurgaon court had no territorial
jurisdiction as it did not carry on any business within its jurisdiction and
neither was it a resident, requiring the plaint to be returned to the
respondent. No objection was raised under clause 16B of the agreement.
The Civil Judge, Gurgaon on 12.03.2015 rejected the objection opining
that it could not be decided summarily and was required to be framed as
a preliminary issue. The appellant then filed its written statement and
the respondent its replication. Issues in the suit were framed on 01.10.2015
inadvertently ignoring the earlier order leading to framing of the
preliminary issue on 01.10.2015 with regard to jurisdiction. The appellant
offers no explanation why the objection under clause 16B of the
agreement was not raised in its application dated 26.08.2011 under Order
VII Rule 10 CPC.
11. The Civil Judge Gurgaon by his order dated 06.09.2016 rejected
the argument with regard to exclusive jurisdiction at Delhi under clause
16B of the
Agreement. The High Court in revision on 05.09.2017 set
aside the order of the Civil Judge dated 6.9.2016 holding that in view of
clause 16B of the franchise agreement, the Gurgaon court lacked
territorial jurisdiction directing return of the file. The submission of the
respondent with regard to the advanced stage of the suit at Gurgaon
was rejected. Prior thereto, the suit had made substantive progress as in
the meantime evidence of the parties had been closed and the matter
has been fixed for final argument on 01.06.2017. We are of the considered
opinion that the mere use of the words ‘return the file’ in the order dated
05.09.2017 cannot enlarge the scope of jurisdiction under Order VII
Rule 10 to mean that the High Court has directed so with the intention
for continuance of the suit. Firstly, that objection was expressly rejected.
Secondly the order itself states that the file be returned under Order VII
Rule 10 and 10A of the Code. Clearly what the High Court intended
was the return of the plaint.
12. Thereafter it was left for the respondent who moved an
application on 11.10.2017 before the Civil Judge at Gurgaon that in the
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peculiar facts of the case, the advanced stage at which the proceedings
were at Gurgaon, it would be in the interest of justice that the entire
judicial file be transferred to the court having jurisdiction at Delhi, which
was allowed by the Civil Judge Gurgaon on 14.02.2018 noticing that the
High Court in revision had directed for transfer of the file. In the fresh
revision preferred by the respondent against the order, the High Court
by the impugned order dated 13.03.2018 declined to interfere and rejected
the contention of the appellant for a de novo trial at Delhi. We have
referred to the facts of the case with brevity to notice the conduct of the
parties and all other relevant aspects to be kept in mind while passing
final orders.
13. It is no more res-integra that in a dispute between parties
where two or more courts may have jurisdiction, it is always open for
them by agreement to confer exclusive jurisdiction by consent on one of
the two courts. Clause 16B of the agreement extracted above leaves us
in no doubt that the parties clearly indicated that it was only the court at
Delhi which shall have exclusive jurisdiction with regard to any dispute
concerning the franchise agreement and no other court would have
jurisdiction over the same. In that view of the matter, the presentation of
the plaint at Gurgaon was certainly not before a court having jurisdiction
in the matter. This Court considering a similar clause restricting
jurisdiction by consent
in Swastik Gases (P) Ltd. vs. Indian Oil Corpn.
Ltd., (2013) 9 SCC 32, observed as follows:
“32. ….It is a fact that whilst providing for jurisdiction clause in
the agreement the words like “alone”, “only”, “exclusive” or
“exclusive jurisdiction” have not been used but this, in our view, is
not decisive and does not make any material difference. The
intention of the parties—by having Clause 18 in the agreement—
is clear and unambiguous that the courts at Kolkata shall have
jurisdiction which means that the courts at Kolkata alone shall
have jurisdiction. It is so because for construction of jurisdiction
clause, like Clause 18 in the agreement, the maxim expressio
unius est exclusio alterius comes into play as there is nothing to
indicate to the contrary. This legal maxim means that expression
of one is the exclusion of another. By making a provision that the
agreement is subject to the jurisdiction of the courts at Kolkata,
the parties have impliedly excluded the jurisdiction of other courts.
Where the contract specifies the jurisdiction of the courts at a
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particular place and such courts have jurisdiction to deal with the
matter, we think that an inference may be drawn that parties
intended to exclude all other courts. A clause like this is not hit by
Section 23 of the Contract Act at all. Such clause is neither
forbidden by law nor it is against the public policy. It does not
offend Section 28 of the Contract Act in any manner.”
14. This was reiterated in State of West Bengal vs. Associated
Contractors, (2015) 1 SCC 32, holding that presentation of the plaint in
a court contrary to the exclusion clause could not be said to be proper
presentation before the court having jurisdiction in the matter.
15. That brings us to the order of the reference to be answered
by us. In Joginder Tuli (supra) the original court lost jurisdiction by
reason of the amendment of the plaint. The Trial Court directed it to be
returned for presentation before the District Court. This Court observed
as follows:
“5. … Normally, when the plaint is directed to be returned for
presentation to the proper court perhaps it has to start from the
beginning but in this case, since the evidence was already adduced
by the parties, the matter was tried accordingly. The High Court
had directed to proceed from that stage at which the suit stood
transferred. We find no illegality in the order passed by the High
Court warranting interference.”
To our mind, the observations are very clear that the suit has to
proceed afresh before the proper court. The directions came to be made
more in the peculiar facts of the case in exercise of the discretionary
jurisdiction under Article 136 of the Constitution. We may also notice
that it does not take into consideration any earlier judgments including
Amar Chand Inani vs. The Union of India (supra) by a Bench of
three Honourable Judges. There is no discussion of the law either and
therefore it has no precedential value as laying down any law.
16. Modern Construction (supra), referred to the consistent
position in law by reference to Ramdutt Ramkissen Dass vs. E.D.
Sassoon & Co., Amar Chand Inani vs. The Union of India,
Hanamanthappa vs. Chandrashekharappa, (1997) 9 SCC 688,
Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder
Tuli (supra), arrived at the conclusion as follows:
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“17. Thus, in view of the above, the law on the issue can be
summarised to the effect that if the court where the suit is
instituted, is of the view that it has no jurisdiction, the plaint is to
be returned in view of the provisions of Order 7 Rule 10 CPC and
the plaintiff can present it before the court having competent
jurisdiction. In such a factual matrix, the plaintiff is entitled to
exclude the period during which he prosecuted the case before
the court having no jurisdiction in view of the provisions of Section
14 of the Limitation Act, and may also seek adjustment of court
fee paid in that court. However, after presentation before the
court of competent jurisdiction, the plaint is to be considered as a
fresh plaint and the trial is to be conducted de novo even if it stood
concluded before the court having no competence to try the same.”
Joginder Tuli (supra) was also noticed in Harshad Chimanlal
Modi (II) (supra) but distinguished on its own facts.
17. We find no contradiction in the law as laid down in Modern
Construction (supra) pronounced after consideration of the law and
precedents requiring reconsideration in view of any conflict with Joginder
Tuli (supra). Modern Construction (supra) lays down the correct law.
We answer the reference accordingly.
18. We regret our inability to concur with Oriental Insurance
Company Ltd. (supra), relied upon by Mr. Patwalia, that in pursuance
of the amendment dated 01-02-1977 by reason of insertion of Rule
10A
to Order VII, it cannot be said that under all circumstances the return of
a plaint for presentation before the appropriate court shall be considered
as a fresh filing, distinguishing it from Amar Chand Inani (supra). The
attention of the Court does not appear to have been invited to Modern
Construction (supra) and the plethora of precedents post the amendment.
19. Order VII Rule 10-A, as the notes on clauses, indicates was
inserted by the Code of Civil Procedure (Amendment) Act, 1976 (with
effect from 01.02.1977) for the reason:
“New Rule 10-A is being inserted to obviate the necessity of
serving summonses on the defendants where the return of plaint
is made after the appearance of the defendant in the suit.”
Also, under sub-rule (3) all that the Court returning the plaint can
do, notwithstanding that it has no jurisdiction to try the suit is:
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“10A. Power of Court to fix a date of appearance in the
Court where plaint is to be filed after its return.
xxx xxx xxx
(3) Where an application is made by the plaintiff under sub-rule
(2), the Court shall, before returning the plaint and notwithstanding
that the order for return of plaint was made by it on the ground
that it has no jurisdiction to try the suit,—
(a) fix a date for the appearance of the parties in the Court in
which the plaint is proposed to be presented, and
(b) give to the plaintiff and to the defendant notice of such date
for appearance.”
20. The language of Order VII Rule 10-A is in marked contrast to
the language of Section 24(2) and Section 25(3) of the Code of Civil
Procedure which read as under:
“24. General power of transfer and withdrawal.
xxx xxx xxx
(2) Where any suit or proceeding has been transferred or
withdrawn under sub-section (1), the Court which is thereafter to
try or dispose of such suit or proceeding may, subject to any special
directions in the case of an order of transfer, either retry it or
proceed from the point at which it was transferred or withdrawn.
25. Power of Supreme Court to transfer suits, etc.
xxx xxx xxx
(3) The Court to which such suit, appeal or other proceeding is
transferred shall, subject to any special directions in the order of
transfer, either retry it or proceed from the stage at which it was
transferred to it.”
21. The statutory scheme now becomes clear.
In cases dealing
with transfer of proceedings from a Court having jurisdiction to another
Court, the discretion vested in the Court by Sections 24(2) and 25(3)
either to retry the proceedings or proceed from the point at which such
proceeding was transferred or withdrawn, is in marked contrast to the
scheme under Order VII Rule 10 read with Rule 10-A where no such
discretion is given and the proceeding has to commence de novo.
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22. For all these reasons, we hold that Oriental Insurance Co.
(supra) does not lay down the correct law and over-rule the same. R.K.
Roja (supra) has no direct relevance to the controversy at hand.
23. That brings us to a question with regard to the nature of the
order to be passed in the facts and circumstances of the present case.
In Penu Balakrishna Iyer vs. Ariya M. Ramaswami Iyer, AIR 1965
SC 195, this court observed as follows:
“7. …The question as to whether the jurisdiction of this Court
under Article 136 should be exercised or not, and if yes, on what
terms and conditions, is a matter which this Court has to decide
on the facts of each case.”
24. In Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 it was
observed as follows :-
“47….It is true that the jurisdiction under Article 136 of the
Constitution is a discretionary jurisdiction and notwithstanding that
a judgment may not be wholly correct or in accordance with law,
this Court is not bound to interfere in exercise of its discretionary
jurisdiction….”
25. In ONGC Ltd. vs. Sendhabhai Vastram Patel, (2005) 6 SCC
454, it was observed:
“23. It is now well settled that the High Courts and the Supreme
Court while exercising their equity jurisdiction under Articles 226
and 32 of the Constitution as also Article 136 thereof may not
exercise the same in appropriate cases. While exercising such
jurisdiction, the superior courts in India may not strike down even
a wrong order only because it would be
lawful to do so. A
discretionary relief may be refused to be extended to the appellant
in a given case although the Court may find the same to be justified
in law.”
26. The nature of jurisdiction under Article 136 of the Constitution
was again considered in Shin-Etsu Chemical Co. Ltd. (2) vs. Vindhya
Telelinks Ltd., (2009) 14 SCC 16. In Karam Kapahi vs. Lal Chand
Public Charitable Trust, (2010) 4 SCC 753, it was observed as follows:
“65. The jurisdiction of this Court under Article 136 of the
Constitution is basically one of conscience. The jurisdiction is
M/S EXL CAREERS AND ANOTHER v. FRANKFINN
AVIATION SERVICES PRIVATE LIMITED [NAVIN SINHA, J.]
A
B
C
D
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SUPREME COURT REPORTS
[2020] 6 S.C.R.
plenary and residuary in nature. It is unfettered and not confined
within definite bounds. Discretion to be exercised here is subject
to only one limitation and that is the wisdom and sense of justice
of the Judges (see Kunhayammed vs. State of Kerala, (2000) 6
SCC 359). This jurisdiction has to be exercised only in suitable
cases and very sparingly as opined by the Constitution Bench of
this Court in Pritam Singh vs. State, AIR 1950 SC 169…”
27. In the peculiar facts and circumstances of the case, because
the appellant did not raise the objection under clause 16B of the agreement
at the very first opportunity, the first order of rejection attained finality,
the objection under clause 16B was raised more as an after-thought, the
second application under Order VII Rule 10 had to be preferred by the
respondent, that pleadings of the parties have been completed, evidence
led, and that the matter was fixed for final argument on 03.07.2017, we
are of the considered opinion that despite having concluded that the
impugned order is not sustainable in view of the law laid down in the
Modern Construction (supra), in exercise of our discretionary jurisdiction
under Article 136 of the Constitution and in order to do complete and
substantial justice between the parties under Article 142 of the
Constitution in the peculiar facts and circumstances of the case
nonetheless we decline to set aside the impugned order of the High
Court
dated 13.03.2018.
28. The appeal stands disposed of.
Kalpana K. Tripathy
Appeal disposed of.