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TMI Blog2023 (6) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... ion provide that the moneys are payable in Delhi. The invoices infact set out the modes of payment acceptable to the Plaintiff, i.e., either by account payee cheque, demand draft or NEFT/RTGS - Merely because the details of the receiving bank are within the jurisdiction of another city, this fact alone would not mean (a) that the amounts are payable in that city and (b) that part of the cause of action had arisen in that city. Additionally, even assuming that the only mode for payment under the said invoices was via RTGS/NEFT, the same would not by itself amount to monies being payable in Delhi under the contract. The details of the Plaintiff s bank are set out only to facilitate the payment by electronic mode and nothing else. This by no stretch of imagination can be construed to mean that the amounts due under the said invoices were payable in Delhi. The common law proposition is undoubtedly based on the doctrine of forum conveniens, it is basis this that the Plaintiff has filed the present suit in this Court only to be told by the Defendant who neither disputes nor denies the Plaintiffs claim that Suit must necessarily be instituted in a Court which for the Plaintiff is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) The Plaintiff on receipt of the purchase orders and instructions issued by the Defendant would execute the same by screening the promotional material/content in terms of the said purchase orders. The Plaintiff would after the promotional material/content was screened, raise invoices against the said work done. The essential terms and conditions of each of the invoices were identical and Clauses 3 and 5 thereof were as follows viz. :- 3. Any Discrepancy in this bill should be notified within 5 days of receipt, else acceptance shall be deemed. 5. In the event payment is not received within 7 (seven) days from the due date, an interest of 18% shall be levied on the amount due from the due date till the date of realization. Beyond 7 (seven) days from the due date, you shall be liable to pay twice the amount due with an interest of 20% from the due date till the date of realization. GST as applicable on the interest amount shall also be charged. This shall be in addition to the rights available to PVR under law and equity. (iv) The first purchase order bearing No. 33-2019-20 was dated 24th December 2019 and was received by the Plaintiff vide the Defendants cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he placed reliance upon a judgment of this Court in the case of Jatin Koticha Vs. VFC Industries Pvt. Ltd. (2007) SCC OnLine Bom 1092. in which it was held as follows viz.:- 5. Now it is clear that there is no written contract signed by both the parties relied on by the plaintiff. It is not the requirement of the law that it should be a written contract signed by both the parties. What is necessary is that the suit should be based on a written contract. That, one can find in this case, in the form of invoices which were raised on the defendants along with delivery of the goods in pursuance of each purchase order. The invoices, as stated above, contained the terms and conditions. There is a clear parole acceptance of the invoice on the part of the defendants. The defendants accepted delivery of the goods along with the invoice without any demur or suggestion that they do not accept any of the terms whether pertaining to the rate, price, quantity etc. It makes no difference therefore that the invoices are not signed by both the parties. I am of view that the invoices must be treated as a written contract and the suit based on such invoices is a suit based on the written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterglobe Aviation Limited Vs. N. Satchidanand (2011) 7 Supreme Court Cases 463 (ii) Kusum Ingots Alloys Ltd. Vs. Union of India Another (2004) 6 Supreme Court Cases 254 (iii) VSP Acqua Mist Fire Pvt. Ltd., Nagpur Vs. Maharashtra State Electricity Transmission Company Ltd., Mumbai 2010 (2) Mh.L.J. 575 (iv) A.B.C. Laminart (P) Ltd. Anr. Vs. A. P. Agencies, Salem (1989) 2 Supreme Court Cases 163 (v) Swastik Gases Private Limited Vs. Indian Oil Corporation Limited (2013) 9 Supreme Court Cases 32 9. He then, in respect of Interim Application (L) No. 37803 of 2022 pointed out that the said purchase orders were issued by Defendant Nos. 2 3. He submitted that, in the Joint Affidavit-in-Reply to the Summons for Judgment, Defendant Nos. 2 and 3 had failed and neglected to set out any case absolving them of their liability as partners of Defendant No. 1. He submitted that the filing of Interim Application (L) No. 37803 of 2022 was only by way of an afterthought and nothing more. He then without prejudice submitted that Defendant Nos. 2 and 3 could not absolve themselves from their liability as partners of Defendant No. 1 in view of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts due and payable under the said invoices were payable in New Delhi. In support of his contention that a part of the cause of action arises where money is either expressly or impliedly payable under a contract, he placed reliance upon a judgment of the Hon ble Supreme Court in the case of ABC Laminart Pvt. Ltd and Another vs AP Agencies Salem (1989) 2 SCC 163. 13. He thus submitted that there was no merit in the contention of the Plaintiff that no part of cause of action had arisen in New Delhi. Learned Counsel fairly accepted that while the said invoices did not make a provision that the amounts would be payable in New Delhi alone, he submitted that this factor by itself would not denude the Courts in Delhi from entertaining, trying and disposing off the present Suit since New Delhi was one of the places contemplated for making payment of the amounts payable under the invoices. Basis this learned counsel submitted that the question of conferring jurisdiction on a Court which did not have jurisdiction did not arise. 14. Learned counsel, then submitted that even assuming the invoices did not contain the bank details of the Plaintiffs bank in New Delhi this fact alone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case for lifting the corporate veil. He therefore respectfully submitted that there was no cause of action/case against Defendant Nos. 2 and 3 and, their joinder was in the teeth of the provisions of the Act. Learned Counsel then placed reliance upon the following judgments to submit that it was well settled that a Plaint can be rejected in full against some of the Defendants alone viz., (i) Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamal Educational Trust, represented by its Chairperson/Managing Trustee (2012) 8 Supreme Court Cases 706 (ii) Chetana Shankar Manapure and Another Vs. Bandu s/o Tanaji Barapatre (2020) 4 Mh. L.J. 481 (iii) Sheela Ram Vidhani and Another Vs. S.K. Trading Company and Others (2021) 4 AIR Bom R 713 : Appeal No. 27 of 2020 dated 19th June 2021 Placing reliance upon the aforesaid judgments, Learned Counsel submitted that Interim Application No. 131 of 2023 ought to be allowed. SUBMISSIONS OF MR. DESAI IN REJOINDER 17. Mr. Desai, then in dealing with the submissions made on Interim Application No. 123 of 2023, firstly submitted that the invoices did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or rejecting the Plaint against them did not arise. Reasons and conclusion 21. First, dealing with Interim Application No. 123 of 2023 I find the same to be entirely without merit. The entire basis of the said Application is clause 8 of the said invoices which provides, viz. 8. All Disputes subject to Delhi Jurisdiction only. Thus, the essential prerequisite for invoking clause 8 is the existence of a dispute. In the facts of the present case, the record bares out that infact the Defendants had at no point of time, prior to the filing of the Affidavit in Reply to the Summons for Judgment never raised any dispute whatsoever qua any of the said invoices. As noted above, clause 3 of the said invoices provides that any discrepancy in the said invoices should be notified to the Plaintiff within five days of receipt of the same else acceptance shall be deemed . The Defendants despite due receipt of the said invoices did not raise any dispute or discrepancy in respect of any of the said invoices. Additionally, the Defendants have also received the Plaintiffs letter dated 8th April, 2020 and legal notice dated 14th August, 2020 both of which have remained unanswered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus entirely with then jurisdiction of this Court. Thus, to apply the ratio of the judgment in the case of Bharumal Udhomal and others to the facts of the present case at the instance of the Defendant would be to effectively turn the proposition on its head. The common law proposition is undoubtedly based on the doctrine of forum conveniens, it is basis this that the Plaintiff has filed the present suit in this Court only to be told by the Defendant who neither disputes nor denies the Plaintiffs claim that Suit must necessarily be instituted in a Court which for the Plaintiff is clearly not forum conveniens and within which, no part of the cause of action has arisen. Such a contention must only be stated to be rejected. 24. In so far as Interim Application No. 131 of 2023 is concerned, I find that there is merit in the same and the same deserves to be allowed for the following reasons, viz. i. The provisions of section 27 of the LLP act are clear and unambiguous. Section 27 (3) expressly states that an obligation of a limited liability partnership, whether arising in contract or otherwise, shall be solely the obligation of the limited liability partnership. It is not in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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