TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 1472
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....Wind Power Projects. It was followed by an amendment entered into on 30.09.2011. On the same day, the second defendant raised purchase order to the plaintiff. The first defendant, who is a legally qualified person, was appointed as General Counsel in the plaintiff's company on 13.02.2012. The letter of appointment also governs the terms and conditions of his appointment. He was also involved in the legal processes and transactions between the plaintiff and the second defendant in his capacity as the General Counsel. Thereafter, the first amendment dated 30.06.2012 to the purchase order was made followed by the second one dated 09.07.2012. 2.2. On 06.08.2012, the first defendant was appointed as Director in the plaintiff company. A Supplementary Agreement was entered into between the plaintiff and the second defendant on 25.04.2013, in which, the first defendant is stated to have played an active role. 2.3. Thereafter, disputes have arisen between the parties viz., the plaintiff and the second defendant. The first defendant became the Conciliation Officer. On his failure, an application was filed under Section 11 of the Arbitration and Conciliation Act, 1996, on behalf of th....
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....endant No. 2 Company and for other reliefs. 4. The grievance of the applicant is that the 1st Respondent, who was employed as General Counsel- India of the Applicant's Company has joined the 2nd Respondent after resigning the Plaintiff's Company and therefore so many confidential informations of the Applicant's company available with the 1st Defendant are likely to be passed to the 2nd Defendant with whom the Applicant is having an arbitration proceedings. Therefore, Applicant is seeking to file the present suit before this Court. 5. In so far as the present application seeking leave is concerned, it is stated that the very appointment order issued in favour of the 1st Respondent by the Applicant dated 13.02.2012 was issued at Chennai and that Plaintiff's head office is also situated at Chennai. It is further stated that the said letter of appointment would be governed by Indian Law and the parties accepted that the exclusive jurisdiction is vested with the Courts in Chennai. 6. Considering the Order of Appointment issued in favour of the 1st Respondent and also considering the specific clause contained therein with regard to choice of forum, this Court is of ....
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....ication No. 6668 of 2015 has been filed by the second defendant." 3. The learned Senior counsel appearing for the applicant/second defendant submits that admittedly, the plaintiff is having its office at Sholinganallur, Chennai, being outside the territorial jurisdiction of this Court. The letter of appointment was also signed therein and the first defendant was working till the acceptance of his resignation. The resignation was also accepted by the plaintiff on 07.08.2015 at Sholinganallur. Clause 13 of the letter of appointment cannot confer jurisdiction to file the suit before this Court. There is no cause of action that has arisen within the territorial jurisdiction of this Court. The alleged cause of action that the first defendant consulted the lawyers at Chennai will not give jurisdiction to this Court. It is also not supported by material evidence. Even otherwise, a mere consultation per se would never create a cause of action. What is relevant is a material fact, if proved by the plaintiff, shall have the effect of getting the relief. Clause 12 merely speaks about a part of cause of action, which is not available in the case on hand. In any case, the second defendant is s....
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....al knowledge and not otherwise. It is a simple issue qua the agreement between the plaintiff and the second defendant pertains to demand and supply. There is no allegation of collusion between the defendants. If there is a likelihood of fraud, the first defendant would have colluded with the second defendant. However, he has chosen to come out of the service of the plaintiff to join the second respondent. To show his bona fide, he has also filed an affidavit stating that he will not take any part in the ongoing tussle between the plaintiff and the second defendant. Such a stand has also been ratified by the second defendant. Therefore, the very basis for filing the suit itself is not available. There is nothing that survives for adjudication in the suit. Hence, he prayed that the application may be allowed and the suit be dismissed. 6. In view of the stand taken by the first defendant with the approval of the second defendant, this Court adjourned the matter so as to enable the learned Senior Counsel appearing for the plaintiff to get instruction. However, it is reported that such a decree can be passed only when the first defendant suspends his service with the second defendant t....
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.... the following manner. "41. There is no definition of "cause of action" in the Civil Procedure Code; but it is the fundamental pivot around which many of the provisions of the Civil Procedure Code revolve. It is the basis for the maintainability of the suit. It is the foundation for the adding up of parties, and it is an important ingredient in working out the principle of res judicata and that embodied in Order 2, Rule 2, Civil P.C. it has, therefore, necessarily become the subject of judicial scrutiny. Bretts J. defined it in -- 'Cooke v. Gill', (1373) 8 CP 107 (Zl) a leading case on the subject, to mean "every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse." In -- 'Bead V. Brown', (1889) 22 QBD 128 (Z2), Lord Esher adopted the same definition, but expressed it in more felicitous language as follows: "Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved." L....
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.... defence, but refer entirely to the grounds set forth in the plaint as the cause of action: (1873) 6 CP 107 (Z1), -- 'Shankar Baksh v. Daya Shankar', 15 Ind App 66 (PC) (Z8), 16 Cal 98 (PC) (33). "Though the ground of title on both suits are founded in one and the same and the causes of action also arose at the same time, yet the properties comprised in the two suits are different and the persons who severally withheld the same are also different. A reference to Section 50, C.P.C. clearly shows that in every suit the plaint must show that the defendant is or claims to be interested in the subject matter and that he is liable to be called upon to answer the plaintiff's demand. This clearly shows that the cause of action is not an abstraction, something independent of the defendant, but that the plaint should disclose a cause of action against the defendant." We respectfully agree with the aforesaid observations of the learned Judge, and this passage clearly brings out the distinction between the ground of title and the cause of action. A cause of action is something more than a ground of title. It not only includes the facts necessary to support the plaintiff's t....
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....e was synonymous with cause of action, the later decisions clearly laid down that cause of action was something more than unity of title, and that it would include not only the right of the plaintiff but also the facts disclosing the infringement of that right. 7.3. A similar view has been taken by the Apex Court in A.B.C. Laminart Pvt. Ltd., and another v. A.P. Agencies, Salem (1989 AIR 1239), in which, the following passage would be apposite. "A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a fight to relief against the defendant. It must include some act done by t he defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the fight sued on but includes all t he material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would gi....
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....fendant or might result in injustice, the Court should in all cases readily refuse leave or if leave has already been granted, revoke the leave as a matter of course". 35. The said view was approved in the affirmative by the Honourable Supreme Court in Kusum Ingots and Alloys Ltd., v. Union of India and Another reported in 2004 (6) SCC 254, inter alia holding that High Court may refuse to exercise its discretionary jurisdiction even if a small part of the cause of action arises within its territorial jurisdiction, applying the test of 'forum conveniens'." 9. FORUM CONVENIENS: "9.1. In the abovesaid decision, the question of forum conveniens was also considered by this Court while granting leave under Section 12 of the Letters Patent. Accordingly, after considering number of pronouncements, it was finally concluded in the following manner: 57. There is little doubt that the principles of forum conveniens, though not applicable to civil proceedings, have a role to play insofar as the consideration of grant of leave or revocation thereof under Clause 12 of the Letters Patent is concerned. This is irrespective of the fact as to what expression is used. As observed afores....
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....ss as Sholinganallur, Chennai. Because of its wrong understanding, the leave was also granted. In other words, the plaintiff proceeded on the footing that almost, all the causes of action have arisen within the territorial jurisdiction of this Court by bringing Sholinganallur within the purview of this Court. When Sholinganallur does not come within the territorial jurisdiction, it is needless to state that the suit is not maintainable. Therefore, the Letter of Appointment has to be read as a whole. If that is done, then Clause 13 would only mean the jurisdictional Court other than this Court. In other words, the Court, which has got jurisdiction over Sholinganallur, would alone have the jurisdiction. That is the reason why, Clause 13 says the Courts at Chennai. To repeat Clause 13 and to interpret it, it means that the Court having territorial jurisdiction over Sholinganallur alone. Even otherwise, law is quite settled that the parties by consent cannot confer jurisdiction upon a Court. It is not a case where two Courts have jurisdiction of which the parties have elected one. If we see the order passed at the time of granting leave, then there will not be any confusion. The plaint....