- (1.) THE first mentioned application G. A. No. 429 of 2009 filed by the plaintiff above-named for the interlocutory relief in the form of injunction and appointment of Receiver. THE second application being G.A. No.747 of 2009 has been filed by the second defendant, Moonstar Securities Trading and Finance Company Pvt. Ltd. praying for revocation of leave granted under Clause 12 of the Letters Patent; for dismissal of the above suit; for rejecting the plaint filed in the aforesaid suit or in the alternative the plaint be returned for presentation before the appropriate Court; stay of all further proceedings in connection with suit C.S. No. 31 of 2009 and all applications made therein pending disposal of the present suit; interim order passed, be vacated and pending disposal of the present application, interim order dated 18th February, 2009 be stayed. Third application being G. A. No. 827 of 2009 has been taken out by the first defendant namely Pisces Portfolios Pvt. Ltd. For identical reliefs as prayed for by the second defendant.
(2.) IN the aforesaid interlocutory applications this Court on prima facie being satisfied passed several interlocutory orders at the ad interim stage. All the three applications were heard however while hearing same it was made clear to the parties that the decision of the aforesaid two demurrer applications will entirely decide the fate of the suit and the interlocutory application pending thereunder though filed earlier. Accordingly, contention raised in both the applications are taken up for consideration first. In both the petitions filed in the aforesaid two applications, the basic challenge in the suit is that this Court has no jurisdiction as there is no cause of action disclosed in the plaint which could be said to have arisen within the territorial limit of this Hon'ble Court. According to them entire transaction between the plaintiff and the first defendant took place outside the territorial limit of this Court. The second defendant has been made party unnecessarily as no cause of action has been disclosed against it. The plaintiff has filed the instant suit having deliberately suppressed the Forum Selection Clause as by an agreement plaintiff and the defendant No.1 has voluntarily chosen that appropriate Court at Delhi which would have exclusive jurisdiction. In view of the said valid and binding Forum Selection Clause this suit cannot be entertained by any Court other than Court(s) in Delhi. Besides both the defendants are admittedly carrying on business outside the territorial jurisdiction of this Court hence, going by the balance of convenience the instant suit be tried and disposed of by the appropriate Court at Delhi. It is also mentioned in the plaint that already suit has been filed by one of the defendants in the appropriate Court at Delhi against the plaintiff and the same is still pending. Obviously this application is opposed by filing affidavit. In the affidavit the factual allegations have been denied, and it is stated that this application has been filed at a belated stage and after the written statement being filed. Therefore, both the applications should be dismissed.
(3.) LEARNED Counsel for the first defendant submits pointing out the aforesaid allegations made in his client's application that in view of the Forum Selection Clause which is binding between plaintiff and the first defendant the present suit cannot be entertained by this Court. While submitting he has relied on the following decisions of the Supreme Court:- 1. 1971 (1) SCC 286, 2. 1989 (2) SCC 163, 3. 2004 (4) SCC 671, 4. 2005 (4) ALT 806, 5. 2009 (2) ALT 196, 6. 1993 (2) SCC 740, 7. 2002 (9) SCC 480, 8. 2009 (11) SCALE. It is further submitted that both the defendants are having place of business at New Delhi outside the jurisdiction of this Hon'ble Court. All evidences documentary and oral in connection with the present transactions are situated in New Delhi obviously outside the jurisdiction aforesaid. His client has no connection with the city of Kolkata nor does have any office or agent or representative in Calcutta and the petitioner would be greatly inconvenienced if the suit is heard in this Hon'ble Court. For those reasons the petitioner had insisted upon the incorporation of Forum Selection Clause and the plaintiff had agreed to the same.;