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2016 (7) TMI 1472
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....commissioning, operation and maintenance of 2000 MW 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....
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....remedies/reliefs of the Plaintiff Company pursuant to his appointment as an employee in me Defendant 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 Resp....
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....he exclusive jurisdiction of the Courts in Chennai." 2.6. Seeking to revoke the leave granted by an order dated 18.08.2015, the present application in Application 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 eff....
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....d., v. Federal Lloyd Corporation Ltd., (2011-4-L.W. 149)." 5. The learned counsel appearing for the second respondent/first defendant submits that the allegations have no basis. The first defendant is a highly qualified person having legal 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 adjou....
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....rt of cause of action and therefore, the place in which it takes place gives jurisdiction to the Court. The legal position aforesaid has been reiterated by the Division Bench of this Court in D. Lakshminarayana Chettiar and another ((1954) AIR Madras 594) in 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....
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....lands which they severally withheld. "The words 'cause of action' have fill along been held to mean 'every fact which it is material to be proved to entitle the plaintiff to succeed; every fact which the defendant would have a right to traverse' and have no relation whatever to the 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." ....
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....ment of the plaintiffs' right qua the property in suit is ' different from their act or acts of infringement of the plaintiffs' right qua one or the other of the properties previously in suit." It would be seen from the aforesaid decisions that though under Act 3 of 1859 this court was inclined to take the view that the unity of title 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 absenc....
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....nce and may, if the balance is definitely in favour of the defendant, apply the doctrine of forum conveniens; h) that the Court may refuse leave or revoke leave on the ground of balance of convenience, although there be no evidence of bad faith or abuse of process on the part of the plaintiff;....... j) that if the Court is satisfied that the suit has been filed mala fide for the purpose of harassing or oppressing the defendant 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 L....
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.... be invoked only by approaching the Court having territorial jurisdiction of Sholinganallur. Reliance has been made on Clause 13, which speaks about the jurisdiction being vested with the Courts at Chennai. Unfortunately, the plaintiff has misconstrued the said clause. Though Sholinganallur can be termed to be a part of Chennai, it will not form part of the territorial jurisdiction of this Court. The misconception has reigned because of the fact that the plaintiff has given its address 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. T....