- (1.) The appellant-plaintiff entered into a contract with the defendant No.1 for sale of software and/or portal at a price of Rupees One Crore Ninety Three Lakhs Twelve Thousand and Thirty Two. They initially paid Fifty Lakhs and declined to pay the balance raising a dispute as to the functioning of the portal. Further transactions were had between the parties as would appear from the plaint. The plaintiff would claim, being induced by the defendant, they issued work order for development of the portal and its maintenance as well as Online Database and Solution Support Centre services for an agreed amount of Rupees Five Crores Seventy Four Lakhs Ninety Two Thousand Two Hundred Sixty Five and Paise Eight. The appellant-plaintiff would contend, despite receipt of the past consideration that would amount to Rupees Sixty Five Lakhs Five Thousand Five hundred Seventy Seven, the defendant failed to extend the services. Portals were also not in operation. As a result, they suffered huge loss that they assessed at Rupees One Hundred Fourteen Crores Sixteen Lakhs Eighty Thousand Nine Hundred Thirty Three and Paise Forty Eight. The relevant prayers of the plaint are quoted below: "(a) A decree for a sum of Rs.114,16,80,933.48/- against the defendants jointly and/or severally as pleaded in paragraph 23 hereof; (b) Alternatively, an order for enquiry into the damages suffered by the plaintiff and a decree for such sum as may be found payable upon such enquiry;"
(2.) They also obtained leave under Clause 12 of the Letters Patent on the basis of the averment that a part of the cause of action arose within and a part thereof outside, of this Court. Upon receipt of notice, the defendant No. 1 filed an application for dismissal of the suit and/or return of plaint as no part of the cause of action arose within the jurisdiction. The defendant No. 2 filed an application for dismissal of the suit as against them, on the ground, the plaint did not disclose any cause of action against them. Learned Judge held, the plaint did disclose cause of action as against the defendant No. 2 and as such dismissed the application of the defendant No. 2, however, allowed the application of the defendant No. 1 holding, this Court had no territorial jurisdiction to entertain the suit as no part of the cause of action arose within the jurisdiction of this Court and directed the suit to be heard by Delhi Courts. Being aggrieved, the plaintiff filed this appeal. The defendant No. 2, however, accepted the decision and did not make any grievance. CONTENTION
(3.) Mr. S.N. Mookherjee, learned Senior Counsel would submit, the learned Judge erred in appreciating the case of the plaintiffs. According to him, the plaintiff sued the defendant no. 1 enforcing their contractual right for the breach that the said defendant had committed in not adhering to the terms of the contract. He also sued the defendant no. 1 along with the defendant No. 2 for the damage that they had suffered. Hence, the cause should be treated as a cause on tort. He would also have cause of action as against the defendant No. 2 enforcing the guarantee that the said defendant extended to the plaintiffs in case of failure on the part of the defendant No. 1. He would submit, to find out whether the plaint would disclose any part of the cause of action within jurisdiction, the averments made in the plaint should be taken as sacrosanct. Paragraph 8 would relate to mutual discussions that the parties had at Calcutta whereas paragraph 15 would refer to the payments made at Calcutta that would extend the territorial jurisdiction. In the alternative, he would submit, even if it was not so, the very fact that the action on tort would lie against defendant Nos. 1 and 2 jointly and severally, would extend the jurisdiction. Once the learned Judge held, the plaint did disclose cause of action as against the defendant no. 2, the suit would be maintainable in this Court. He would rely upon Order 1 Rule 3 of the Code of Civil Procedure to submit, since the cause of action as against the defendant Nos. 1 and 2 are inseparable the suit could not be transferred. He would rely upon the decision of this Court in the case of The Bengal and North-Western Railway Company Limited Vs. Sadaram Bhairodan and another, 1922 27 CalWN 82. He would rely upon a passage appearing at page 84 where the division Bench of this Court observed: "The fact that the Court has jurisdiction against the Steamer Company does not give jurisdiction against the Railway Company. The fallacy of the argument, it appears to me, lies in the use of the words "the Court has jurisdiction over the suit," such jurisdiction the Court has over the suit as regards the Steamer Company. This does not give jurisdiction over the Railway Company, and in my opinion Or. 1, r. 3 has no bearing on the case. That rule of the Order is a provision which relates to a joinder of parties: and, it assumes the existence of a suit in a proper forum, the Court having jurisdiction to try the suit. If the Court has such jurisdiction, then Or. 1, r. 3 may come into play.";