LexM/S EXL CAREERS AND ANOTHER versus FRANKFINN AVIATION SERVICES PRIVATE LIMITED
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A B C D E F G H 289 M/S EXL CAREERS AND ANOTHER v. FRANKFINN AVIATION SERVICES PRIVATE LIMITED (Civil Appeal No. 2904 of 2020) AUGUST 05, 2020 [R. F. NARIMAN, NAVIN SINHA AND INDIRA BANERJEE, JJ.] Code of Civil Procedure, 1908: Order VII Rules 10 and 10A – Return of the Plaint – To be presented in the Court having appropriate jurisdiction – Whether the suit to proceed de novo or to continue from the stage where it was pending at the time of return of the plaint – Held: Where the suit is returned to be presented in the Court of appropriate jurisdiction, the suit shall proceed de novo. Constitution of India: Arts. 136 and 142 – Suit for recovery – Territorial jurisdiction questioned – Objection rejected – Later territorial jurisdiction objected to on the basis of exclusionary jurisdiction clause in the agreement between the parties – Objection rejected – In Revision High Court directed return of the file, on the ground of the exclusionary jurisdiction clause, to the Court of appropriate jurisdiction – Civil Judge transferred the file to the Court having jurisdiction – In Revision High Court rejected the contention of de novo trial raised by the defendant – Appeal to Supreme Court – Held: Though High Court was not correct in refusing de novo trial, in the facts of the case, in order to do complete justice between the parties, in exercise of power of Arts. 136 and 142 impugned order is not set aside – Code of Civil Procedure, 1908 – Order VII rr. 10 and 10 A. Disposing of the appeal, the Court HELD: 1.1 It is no more res-integra that in a dispute between parties where two or more courts may have jurisdiction, it is always open for them by agreement to confer exclusive jurisdiction by consent on one of the two courts. Clause 16B of the agreement [2020] 6 S.C.R. 289 289 A B C D E F G H 290 SUPREME COURT REPORTS [2020] 6 S.C.R. between the parties leaves no doubt that the parties clearly indicated that it was only the court at Delhi which shall have exclusive jurisdiction with regard to any dispute concerning the franchise agreement and no other court would have jurisdiction over the same. In that view of the matter, the presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter. [Para 13][297-C-E] 1.2 The mere use of the words ‘return the file’ by the High Court in Revision in the order dated 05.09.2017 cannot enlarge the scope of jurisdiction under Order VII Rule 10 CPC to mean that the High Court has directed so with the intention for continuance of the suit. Firstly, that objection was expressly rejected. Secondly the order itself states that the file be returned under Order VII Rule 10 and 10A CPC. Clearly what the High Court intended was the return of the plaint. [Para 11][296-F-G] 1.3 There is no contradiction in the law as laid down in *Modern Construction case pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with **Joginder Tuli case. *Modern Construction case lays down the correct law. [Para 17][299-D] 1.4 Order VII Rule 10-A was inserted by the Code of Civil Procedure (Amendment) Act, 1976 (with effect from 01.02.1977) in order to obviate the necessity of serving summonses on the defendants where the return of plaint is made after the appearance of the defendant in the suit. Also, under sub-rule (3) all that the Court returning the plaint can do, notwithstanding that it has no jurisdiction to try the suit is to fix a date of appearance in the Court where plaint is to be filed after its return. The language of Order VII Rule 10-A is in marked contrast to the language of Section 24(2) and Section 25(3) of the Code of Civil Procedure. In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is A B C D E F G H 291 given and the proceeding has to commence de novo. [Paras 19, 20 and 21][299-F-H; 300-A, C-D, G-H] Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC 32 : [2013] 7 SCR 581; State of West Bengal v. Associated Contractors (2015) 1 SCC 32 : [2014] 10 SCR 426; Amar Chand Inani v. The Union of India (1973) 1 SCC 115 : [1973] 2 SCR 684; *Oil and natural Gas Corporation Ltd. v. Modern Co
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