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Judgment
Sathiader, J.—These two revision petitions are preferred against, the orders passed by the XII Assistant Judge, City Civil Court, Madras in O.S. Nos. 7516 and 7517 of 1983 holding that it had no jurisdiction to try the suits filed by Plaintiff-Petitioner herein, and that it could present the plaints in the proper Court on taking delivery of them. On behalf of the Plaintiff, it is contended that, when several acts had taken place within the jurisdiction of the Court at Madras pertaining to the contract under Exhibit A-l, these are cases in which some of the causes of action having taken place within the jurisdiction of this Court, the suits as filed are maintainable. It is also contended that once defendant had allowed all issues to be taken up for hearing, it cannot result in the Court rendering a finding only on jurisdictional aspect and returning the plaint, and that it is bound to render, findings on all issues, and therefore, the orders as passed are illegal.
Defendant in O.S.7516 of 1983, on 9-6-1979 issued tenders for supply of equipments/Testing Instruments/Machineries 7th Telecommunication Project and called for offers to be submitted by 28-8-1979. Under Ex.B2 dated 20-8-1979 Intermodern, West Germany submitted its offer directly to defendant. Under Ex.B-4 dated 24-1-1980, it amended the offer after mutual discussions held on 11/12-1-1980 at Bangalore. Under Ex.B-5 dated 31-1-1980, the plaintiff addressed the defendant enclosing certain leaflets. It was on 3-1-1980 under Ex.A-l, the offer of the supplier was accepted at Bangalore and a copy of it was sent to the plaintiff. The goods were to be shipped by sea, FOB West Germany, and to be delivered by October, 1981. A modification to this order was made on 9-5-1981 under Ex.A-2. The foreign supplier, confirmed it under Ex.A-4 dated 4-6-1981, indicating therein that the price for the equipment includes the agency commission of DM 86,068.81 payable in Indian Rupees by ITI, directly to plaintiff. Again, there was an amendment under Ex.A-3 dated 16-11-1981, and the final confirmation was made under Ex.B-9 dated 24-6-1981. The original invoice from foreign supplier was issued to defendant under Ex.B-6 dated 24-2-1982, and the bill of lading was issued to defendant f.o.b. from Bremen to Madras, under Ex.A-5 dated 18-3-1982. These suits have been preferred, claiming that defendant is liable to pay the balance on which agency commission payable by defendant, without impleading the foreign supplier.
In these revisions, the first point taken is that, they are themselves not maintainable, and only appeals could have been preferred by plaintiff.
Mr. M. Subramaniam, learned Counsel for defendant, submits that, when the orders under revision have been passed under 0.7, R. 10 C.P.C. under 0.63, R. 1(a), C.P.C. only appeals would lie to this Court. Learned Counsel for plaintiff by referring to the concluding portion of the orders, would state that they were passed under 0.7, R.10(a) (2) which had been specifically mentioned therein, and therefore, the revisions as filed are in order.
The Court below held,
Hence, what was done by it was to hold that under Issue No.1, a finding having been rendered that the Court had no territorial jurisdiction to try the suit the plaint was being returned to be presented in the proper Court having jurisdiction to try it; and that, for taking return of the plaint, the plaintiff could lodge a petition on or before 14-2-1985 under O.7, R. 10(a) (2), C.P.C. Therefore, the order had only resulted in return of the plaint for being presented to the Court in which it should have been instituted; and "hence, plaintiff could have preferred only an appeal to this Court. Hence, it is held that the revisions filed are not maintainable.
On behalf of Plaintiff, it is then contended that on the question of maintainability of C.R.Ps. this Court having held on 4-3-1985, that the petitions filed could be treated as Civil revision petitions and that the question of maintainability would be gone into later; this Court could now order for conversion of the C.R.Ps. as C.M.As. filed under O.43, R. 1(a), C.P.C. To this, defendant would submit that in both the suits, the value claimed being more than Rs.50,000/ the C.M. As. could be heard only by a Division Bench, for which reliance is placed on O.1, R.6, (c) of the Appellate Side Rules of this Court, which states that a learned Single Judge of this Court could hear an appeal preferred against a final order under the Code, when the subject matter of value of the appeal is below Rs.50,000. But, when the subject matter of the appeal is incapable of evaluation, the sum claimed in the suit is immaterial. The subject matter involved in these appeals is as to whether the Court in which the plaints have been filed had territorial jurisdiction to try the suits or not. Therefore. when the subject matter involved is incapable of valuation appeals preferred against such orders irrespective of the value of the suits; could be heard and disposed of by a learned single Judge, under 0.1, R 6(c), of the Appellate Side Rubs of this Court. Therefore, treating these matters as appeals filed under 0.43, R. 1(a). C.P.C., the merits of other points taken, are considered hereunder.
Learned Counsel for Plaintiff by relying on 0.14, R. 2(1), C.P.C. submits that the Court below ought to have pronounced judgments, on all issues and had committed an illegality by confining its judgments only to Issue No.1 relating to its territorial jurisdiction, even though the suit had been taken up for trial and witnesses have been examined, and all the issues have come up for consideration by it. Defendant submits that it will be futile for the Court to decide all the issues, when it comes to the conclusion that it had no jurisdiction to try the suit and could only return the plaint for being presented to the proper Court; and cannot dismiss suits and therefore, non-consideration of other issues by the Court, was in accord with 0.14, R.2(2) C.P.C. In para 3 of the written statement, a point had been taken that the Court has no jurisdiction to entertain the suit, as no part of causes of action had arisen with its jurisdiction. No request was ever made by any of the parties, asking for issue No.l to be tried, as a preliminary issue. Suits have been taken up for hearing, and both oral and documentary evidence has been let in relating to all issues involved in the suit. Issue No.l in both the suits was "Whether the Court has territorial jurisdiction to try the suit or not?".
In Nanak Chand v. T.T. Elec. Supply Co. AIR 1975 Mad. 103., is relied upon by Plaintiff, in which a Division Bench held that if by omission, defendant having raised a plea as to jurisdiction, does not ask for trial of the issue on such jurisdiction as the preliminary issue, but partakes in the trial of all the issues, then he should be deemed to have waived his objection as to jurisdiction. It was a case in which the Court, in which all the issues were tried, had the jurisdiction to try the suit. Therefore, defendant pleads that, the doctrine of waiver could be invoked in such cases, but it would have no applicability in cases in which a finding is rendered that the Court had no territorial or monetary jurisdiction to try a suit. Parties to proceeding cannot confer jurisdiction on a Court where it has none. On trial of all issues if the Court finds that it had no jurisdiction, it will be an exercise in futility to render findings on other issues, because they would have no binding effect on the Court to which the plaint may be presented later on. Therefore, the decision of the Division Bench relied upon by plaintiff could be applicable, only if it be found that a part of the cause of action of the suit had arisen within the jurisdiction of the Court which tries all the issues, when defendant does not ask. for the jurisdictional issue to be tried as a preliminary issue.
In Mahant Narayangiri Guru Mahant Someshwarigiri Vs. The State of Maharashtra and Another, . in dealing with a suit in which a declaration of title was asked; and to succeed in the suit, he wanted to establish not only that the property was a private property of the deceased mahant, but that plaintiff was duly appointed chela of the deceased mahant; it was then held that, once a finding was arrived at that the property was an endowment property and was not the private property of deceased mahant, then it would be unnecessary to record a finding on other aspects raised in the suit.
Though Mr. M. Subramaniam had placed before Court several authorities rendered by High Courts, for the proposition above dealt with, this decision would suffice to be referred to. The only other point that calls for consideration is, whether on meats the Court below was in order in holding that no part of the cause of action has arisen within its jurisdiction, on what had been pleaded in the plaints. The suits have been laid by plaintiff, claiming to be the agent of the foreign supplier, viz., Intermodern, to get the agency commission, which was payable by ITI directly to the plaintiff. It is a solid claim of defendant, that tender was accepted at Bangalore and that the offer was made by the foreign supplier directly to defendant having its registered office at Bangalore, as in Exhibits B-l, B-2, A-l A-4 and A-14, and that revised offers were made only at Bangalore as in Exhibits A-2, A-3 and B-9, and that discussions took place only at Bangalore on 11/12.1.1980 for which one Mr. Noakk and Mr. Hoelzel of Intermodern have come from West Germany; and that shipments to Bangalore were via Madras, and they were taken delivery by defendant through its clearing agents at Madras and that contract was a FOB contract and payment of letter of credit was at Bangalore in State Bank of India, and that all correspondence relating to material particulars of the contract were exchanged only between defendants and the foreign supplier, marking copies to the Plaintiff, and that account payee cheques were issued to plaintiff only at Bangalore, and therefore, no part of cause of action arose at Madras. Plaintiff would rely upon the purchase order and tender documents and contend as follows: that the order by the foreign supplier was communicated to it, and the purchase order was placed only through it, and that a part of the commission since paid by account payee cheques, were encashed at Madras, that even the fee for purchasing tender documents was paid only by plaintiff on behalf of foreign principal, that tender documents were sent to plaintiff at Madras by defendant under Ex.A16, the covering letter dated 9.6.1979, that a copy of purchase order was marked to plaintiff, that agency commission was raised by plaintiff at Madras under Ex.A17, that plaintiff arranged for discussions at Bangalore before acceptance of contract, that the offer dt. 20-8-1979 was despatched by plaintiff from Madras to Bangalore with a covering letter under Ex.A10, that the telex offer was communicated by plaintiff from Madras under Ex.A9, :hat the debit note for agency commission under Ex.A7 was raised at Madras, etc. Many of these aspects have been considered in Yercaud Timber Co., by Partner N. Swaminathan-Plaintiff-Appellant v. ''Indian Telephone Industries Limited, Bangalore- 16-Deff.-Respondent C.M.A. No.19 of 1977., by this Court, and it was held therein that it is only the Court at Bangalore, which would have jurisdiction to try such suits. In The State of Madras Vs. C.P. Agencies and Another, ., it was pointed out that cause of action does not comprise every piece of evidence, which is necessary to prove each fact; but every fact which is necessary to be proved, and that it refers entirely to the grounds set forth in the plaint as the cause of action or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.
In G. Venkatesha Bhat and Others Vs. Kamlapat Motilal and Others, ., it was held that the making of the contract it self is part of the cause of action and the determination of the place where the contract was made is part of the law of contract, and the place where money is payable will naturally be the place of making the contract.
In Bhagwandas v. Girdharlai & Co. AIR 1966 S.C. 543, it was held that the place where the offer is accepted by post, does not give rise to a cause of action. In L.T. Commr. v. M/s. Ogale Glass Works Ltd. AIR 1954 S.C. 429., wherein cheques were drawn in Delhi and received by the party in Aundh by post, it was held that the posting in Delhi, in law will amount to payment in Delhi. A full Bench in Zila Parishad v. Shanti Devi AIR 1965 Allahabad 590., held that:
A cause of action consists of all facts which it is essential for the plaintiff to allege and to establish (if denied or controverted,) e.g., the bundle of facts which taken with the law applicable to them gives him a right to some relief against the defendant. It must include some act done by the defendant, because in the absence of any act by the defendant no cause of action can possibly accrue. So long as the act which is essential for the cause of action is not done there is no cause of action even though other acts which also are essential for it have been done because the law does not recognize an incomplete cause of action. Either there exists a cause of action or there does not and if only some of the acts, and not all the facts, required for a cause of action are done there is no cause of action.
Therefore, in view of the decision of this Court in Yercaud Timber Co., by Partner N. Swaminathan-Plaintiff-Appellant v. Indian Telephone Industries Limited Bangalore-16-Deft.-Respondent C.M.A. No.19 of 1977., and what has been laid down in the decisions aforesaid, none of the essential facts which would constitute a case of action having arisen within the jurisdiction of the Madras Court, the Court below was perfectly in order in holding that the suits are not maintainable in that Court.
One other essential aspect is that, the contract was only between the foreign supplier and the defendant. One of the terms agreed to therein was that the agency commission will be paid by defendant to plaintiff-Plaintiff had not relied upon the contents of any contract other than the terms found, in Ex.A4 Ex.B8. It is contended by defendant that it is only the foreign supplier, who can enforce in the event of breach of contract, and that without impleading the foreign supplier, the suit as filed is bad for non-joinder of a necessary party. On the jurisdiction issue, this is not relevant for consideration and left to be decided when the plaints are presented in the proper Court. Therefore, these revision petitions are dismissed with costs. Time is granted till 30-7-1987 for presenting the plaints into proper Court.