9911796707
TMI Blog2013 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant with the option of extending the duration of the contract by thirty six months, and the same was extended till April 2006. Subsequently the defendant awarded the plaintiff another contract for operation of a second water treatment plant (Module 2 plant hereinafter) at Palta, West Bengal by issuing work orders. Except for the fee component, the terms stipulated in the contract dated 22.08.2001 were applicable to Module 2 plant as well. 3. Subsequent to the execution of the contract dated 22.08.2001, the Union of India imposed service tax on the services covered by the aforesaid contract with effect from 01.07.2003 vide Notification No. 7/2003 dated 20.06.2003. The plaintiff claims that since service tax is an indirect tax, and that, though the collection of the service tax is made from the service provider, the ultimate liability to pay the service tax is of the person availing the services. Hence, the defendant is liable to reimburse the plaintiff for all payments made by the plaintiff on account of service tax. The Union of India also imposed education cess on the services covered by the aforesaid contracts and the plaintiff claims that the defendant became liable to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oust the jurisdiction of this court, because the clause does not contain the phrases such as "alone", "only" or "exclusively" and therefore no inference can be drawn that the jurisdiction of courts, other than the courts at Kolkata has been ousted, or that the courts at Kolkata are vested with the exclusive jurisdiction. In support of this submission, reliance has been placed on R.S.D.V. Finance Co. Pvt. Ltd. v. Vallabh Glass Works Ltd., 1993 2 SCC 130. The plaintiff-non applicant submits that a clause ousting jurisdiction must be construed strictly. It is further submitted that the cause of action partly arose at New Delhi on account of the fact that Union of India imposed service tax and education cess from New Delhi, and that the plaintiff deposited the amounts of service tax and education cess in New Delhi. 8. The plaintiff further submits that the registered office of the plaintiff is at New Delhi; that the invoices addressed to the defendant were raised by the plaintiff from New Delhi, and; that the same were also payable at New Delhi. These facts, according to the plaintiff, constitute part of cause of action. It is also submitted that the defendant is deemed to have submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept Courts in Mumbai is excluded. Having regard to the fact that the order was placed by the defendant at Bombay, the said order was accepted by the branch office of the plaintiff at Bombay, the advance payment was made by the defendant at Bombay, and as per the plaintiffs' case the final payment was to be made at Bombay, there was a clear intention to confine the jurisdiction of the Courts in Bombay to the exclusion of all other Courts. The Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit." (emphasis supplied) 11. In the present case, the defendant is situated in Kolkata and was constituted by the West Bengal Act, LIX 1980. The functions of the defendant corporation are confined within State of West Bengal. It is not the plaintiff‟s case that the defendant operates from, or has various branches or subordinate offices all over the country through which it is operating. It has no operations in Delhi. Though the Plaintiff may have deposited the cheques in Delhi - which were received by it in Kolkata, that would not vest jurisdiction in the Courts at Delhi. If this submission were to be accepted, a party may deposit the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaintiff. In the aforesaid case, though the court observed that the clause did not contain the words "only", "exclusively" etc, the same was not the primary grounds for rejecting the claim of exclusive jurisdiction. The court disregarded the clause "Subject to Anand jurisdiction" because the same was in the form of an endorsement made unilaterally by the defendant while issuing the deposit receipt. The present is not a case where the jurisdiction clause was unilaterally imposed by one party. The execution of the MOA implies that both parties were aware of its contents, including the jurisdiction clause. Since the Defendant is located in Kolkata, the MOA was executed at Kolkata, and the Contract had to be performed in Kolkata, the parties were clearly aware that Kolkata Courts would have jurisdiction. There was no uncertainty in that regard. 15. Merely because the plaintiff has its registered office in New Delhi does not give this court jurisdiction to entertain the present suit, as the location of the plaintiff per se does not vest jurisdiction in a Court. 16. The next argument of the plaintiff that payments on account of service tax and education cess were deposited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of this Court under the Arbitration & Conciliation Act, 1996 seeking appointment of an arbitrator. The defendant therein raised a preliminary objection as to the territorial jurisdiction of this Court to entertain the application. I find it relevant to extract a few paragraphs of the aforesaid judgment which, in my view, have a direct bearing on this case - "12. I find that all communications which have been claimed by the petitioner to have been sent to the respondent are addressed to its managing directors or have been sent to its address at G.T. Road, Batala, in the State of Punjab. The legal notices relied upon by the petitioner were also sent to the same address in Punjab. The communication dated 24th September, 2005 which has been sent by the petitioner to the respondent notifying it about the extension of bank guarantee and seeking issuance of a cheque, has been sent to the same address at Punjab. The meeting dated 20th May, 2005 wherein the memorandum of understanding was recorded, which is relied upon by the petitioner, was held not at Delhi but at Chandigarh. It is so mentioned thereon. There is no dispute that the contracted work was to be executed at Punjab. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
