TaxTMI 
TaxTMI 
2017 (12) TMI 849
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....y, registered under the Companies Act, 1956 and it has its registered office at Mumbai. However, the plaintiff company is engaged in the business of imports of various types of chemicals of heavy metal scrapes and one of the business office of the plaintiff company is at Gandhidham. It has been asserted in the plaint by the original plaintiff that defendant no. 1 is also a registered company under the provisions of the Companies Act, 1956 and defendant nos. 2 and 3 are undisputedly the Directors of defendant No. 1. On account of the business dealings between the companies, it is the assertion of the plaintiff that the defendants approach the plaintiffs for sale and supply of Styrene Monomer (hereinafter referred to as the "subjected goods") and placed the purchase order on 09.11.2012 for 63 metric tone (MT). The defendant by another purchase order dated 20.04.2013 had also requested the plaintiff company to supply additional quantity of 200 MT of the subjected goods and thereby by way of two separate purchase orders, the defendants have placed order with the plaintiff company for sale and supply of the subjected goods totaling amount to 263 MT. After placing the order by defendant ....
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....hat before granting leave to defend, no such application is entertainable and thereby on 12.10.2015, an application below Exhibit11 is rejected. Of course, the learned trial Judge has while passing the order opined that the cause of action is also reflecting. However, in para 13 the main reason which has been assigned is that the defendants should not take any part before the permission is granted to leave to defend in the suit and simultaneously, has submitted that the suit disclosed cause of action and not barred by statutes and thereby an application came to be rejected. 3.3. It is against this order passed by the learned trial Judge, this Court on 16.12.2015 has issued notice and made it returnable on 28.01.2016 and in the meantime interim relief in terms of para 11(C ) till the next date of hearing was ordered. The main plank of the argument is that whether such an application under Order 7 Rule 11 of the Code of Civil Procedure can be entertained before submitting grant of leave to defend and, therefore, relying upon the decision delivered by this Court reported in the case of Satellite Television Asian Region Limited v. Kunvar Ajay Foods Pvt. Ltd. reported in 2009(1) GLH ....
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.... 4.2. Mr. Gogia learned advocate has further contended that even for ascertaining whether the cause of action is reflecting or not there is no independent cogent conclusion reflecting which would indicate there is an application of mind on the part of the learned Judge. 4.3. Mr. Gogia learned advocate has further submitted that the entire suit is basically based upon the account books and the same are not produced and therefore, in absence of such production of books, the suit itself if not tenable and, therefore, there is no cause of action reflecting in any case. Mr. Gogia learned advocate has further submitted that simply because the delivery of the goods has been transported from Kandla, the Kandla Court will not have any jurisdiction especially when mutual understanding in agreement of every dispute was determined to be subjected to Mumbai jurisdiction and therefore, Mr. Gogia learned advocate has requested the Court that the relief has not been properly considered and refused. While substantiating this submission, learned advocate Mr. Gogia has drawn attention of this Court to the plaint which is reflecting at page 38 of the revision compilation as well as some of the doc....
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....icated at page 38 and by referring to this, has contended that no case is made out to interfere with the order passed by the learned trial Judge. Learned advocate Mr. Darji has also contended that the learned Judge has exercised the due discretion by assigning cogent reasons and such well reasoned order may not be disturbed in the interest of justice thereto in exercise of jurisdiction under Section 115 of Code of Civil Procedure. However, so far as the last reason which has been assigned by the Court below that prior to leave to defend no such plea of Order 7 Rule 11 of the Code of Civil Procedure is to be considered, there was no clear answer from the learned advocate representing the respondent and by referring to some of the paragraphs of the plaint, a request is made to dismiss the revision application. No other submissions have been made. 7. Having heard the learned advocates for the respective parties and having gone through the order in detail, prima facie it appears that no doubt the delivery of goods has taken place from Kandla, its sister concern is already having its office at Gandhidham and one of the documents in the form of Tax/Retail Invoice is indicating the ter....
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....uired to be dismissed on the ground that the same is not maintainable, there will not be any occasion thereafter to decide the application for leave to defend and/or summons for judgment. Even looking to purpose for which Order 7 Rule 11 of the Code of Civil Procedure is enacted, such application under Order 7 Rule 11 of the Code of Civil Procedure is required to be decided by the courts at the earliest." 8. The Court therefore, is inclined to quash the order dated 12.10.2015 passed by the learned trial Judge on this solitary ground and it is exfacie in conflict with the decision delivered by this Court. 9. Considering the chronology of events, and the facts which are entangled, the Court deems it proper that Order 7 Rule 11 of the Code of Civil Procedure application is required to be heard afresh in detail. Hence, in view of the proposition of law, if the ground is sufficiently explained, the Court need not to deal with all other aspects which are raised by way of contention and therefore, the Court deems it proper to dispose of the present revision application only on this solitary ground with necessary consequential directions in the interest of justice. 10. Considering....