( Delivered by PRABHA SRIDEVAN, J. ) The appeal is against the refusal to revoke the leave granted. The defendant/appellant and the plaintiff/ respondent entered into an agreement for supply of Wind Energy Generators ('WEGs' in short). The defendant is a resident of Maharashtra State. The WEGs were to be set up in Karnataka. The plaintiff has his work office in Chennai within the jurisdiction of this Court. The contract was entered into on 22.7.2006. The purchase orders, which contained the terms and conditions of the contract, were sent by the defendant to the plaintiff with a request to confirm it and return it at the earliest. The plaintiff accepted it at Chennai and returned it. One of the conditions of the contract is Clause referred to as 'Expected Generation'. As per this term, subject to the conditions regarding power curve, etc., the generation of power would be 15,00,000 +/- 5% units per WEG per annum (LCS Reading) at 100% grid availability, failing which the plaintiff was liable to pay Rs.15 lakhs per month.
2. There were problems in the progress of the project because the Karnataka Power Transmission Corporation did not make available the power evacuation approval. The plaintiff proposed an alternate site at Harihar for 7 WEGs and 18 WEGs continued at Malgatti in Karnataka. The WEGs were erected and commissioned. The defendant had to pay a sum of Rs.5,64,56,650/-. The defendant failed to pay on the ground that the power generation fell short, and the estimate provided in the purchase order was one of absolute generation guarantee. Therefore, there was a meeting in Mumbai on 3.11.2007 at the residence of one P.C.Jain, by which some agreement was arrived at between the parties. The minutes of this meeting has been recorded and the copy of the same is also enclosed in the typed set of papers. According to the plaintiff, this ought to be read along with the purchase order agreement. According to the plaintiff, the non-performance of the WEGs will arise only on its failure to conform to the power curve. Since the defendant wrongfully withheld the amount mentioned above, there was exchange of correspondence. The defendant indicated that his claim for compensation would be adjusted against the amounts payable by him. The defendant also preferred a complaint before the National Consumer Disputes Redressal Commission. The defendant raised a debit note, unilaterally adjusting their claim against the contractual debt. The plaintiff suffered a huge financial loss and since the balance amount has not been paid, filed the suit in this Court, where the purchase order agreements dated 22.7.2006 came into existence.
3. Leave to sue was sought for on the ground that the purchase order was signed at Chennai and therefore, a part of cause of action arose at Chennai within the jurisdiction of this Court. The defendant moved an application for revocation of leave. In the application for revocation of the leave to sue, the defendant contended that the plaintiff's registered office was in New Delhi and not in Chennai and this amounted to forum shopping; that the defendant did not carry on business within the jurisdiction of this Court; that the garnishee, viz. the Karnataka Power Transmission Commission is not situated within the jurisdiction of this Court; the entire transaction arose outside the jurisdiction of this Court; the various sites identified for erection and installation are situated in Karnataka and Maharashtra and therefore, when no part of the cause of action arose within the jurisdiction of this Court, leave ought not have been granted and they prayed for revocation of leave. The said application which was rejected and hence this appeal.
4. Mr. P.S. Raman, learned Advocate General appearing on behalf of the defendant submitted that no part of the cause of action virtually arose within the jurisdiction of this Court, except the signing of the purchase order. He submitted that the suit is one for recovery of money on the failure of the performance of the contract. The performance of the contract was essentially the installation of WEGs in the State of Karnataka. In any event, the situs of signing of the purchase order is a fact that has to be proved to estasblish the right of the plaintiff to get a decree and in any event, after the meeting on 3.11.2007, the parties had revised their terms and engagement. It was submitted that for the deficiency in the generation of power, the defendant had raised consumer complaint and this suit is nothing but a counter-blast. The adequacy of the power generation and the efficiency of WEGs are matters that may require evidence by the persons on site at Karnataka. The case of the defendant that the purchase order got modified by the agreement at the common friends residence in Mumbai can be proved by witnesses who are in Mumbai. Therefore, even on the ground of forum non-conveniens, the suit ought to have been filed either within the State of Maharashtra or Karnataka. On the other hand, the suit has been filed only to harass the defendant.
5. Mr. Satish Parasaran, learned counsel appearing on behalf of the the plaintiff submitted that it is really not necessary for the engineers or the people on site in Karnataka to give evidence nor is it necessary for anyone to come from Mumbai. The purchase order provided for payment of Rs.15 lakhs per month under certain conditions. The question is whether the plaintiff had an absolute right to claim Rs.15 lakhs or whether it was payable on the fulfilment of certain conditions and therefore, the alleged inconvenience will not really arise. The learned counsel also submitted that in fact, the defendant knew that the site, where the cause of action arose, is Chennai, because the consumer complaint filed against the plaintiff showed in the cause title, the defendant's address at Chennai. The learned counsel submitted that the question of convenience does not arise in this case.
6. The facts are not really in dispute. The residence of the defendant is in Mumbai, the site of installation is Karnataka, the negotiations may have also taken place in Mumbai and the Karnataka Power Transmission Corporation Ltd., whose decision was a vital factor, is also in Karnataka. The purchase order, which sets down the terms and conditions of the contractual relationship between the parties has, as per the plaint averment, been accepted at Chennai. It is well settled that while considering the revocation of leave, we mainly have to look into the plaint averments and if on the basis of the averments, we are satisfied that a part of cause of action arose within the jurisdiction of the Court, then leave necessarily has to be granted or if leave has been granted, it need not be revoked. The suit could have been filed in Maharashtra or in Karnataka without a doubt. But, definitely, a cause of action arose within the jurisdiction of this Court. The plaintiff's case is that the meeting between the parties on 3.11.2007 really brought into existence a new contract substituting the terms and conditions of the purchase order and that was entered into in Mumbai and therefore, it is hardly of any consequence that the purchase order was signed at Chennai. Further, it was submitted that as a matter of fact, the plaintiff had received the purchase order in person though the office seal would indicate that it had been received in Chennai. We can only look at the document as it is and it shows that it was received at Chennai. The plaint, in fact, refers to the meeting dated 3.11.2007, but it is pleaded that the Minutes of the said meeting should be read as part and parcel of the purchase order.
7. The crucial clause in the agreement is captioned "Expected Generation", which reads as follows :
"Based on the wind date and as per the power curve, the expected generation of the site is 15,00,000 + 5% units per WEG per annum (LCS Reading) at 100% grid availability. However, VRRB stand guarantee for the performance of the WEG based on the power curve and performance of the machine. For this purpose, you should install wind mast at site. This guarantee will commence from one month after the date of commissioning of the WEG. Based on above, any shortfall in generation will be compensated by VRRB at prevailing Power Purchase Rates."
According to the appellant, this commitment of Rs.15,00,000/- was an unqualified one and would arise if there was any shortfall in the general of wind power. Whereas according to the respondent, the clause itself begins with the words "Based on the wind data and as per the power curve" and there is no unconditional or unqualified commitment to pay Rs.15,00,000/-. In the meeting dated 3.11.2007, which admittedly was held in Mumbai, certain issues appeared to have been resolved. According to the appellant, after this meeting, the original contract got modified and therefore, relying on that, no reliance can any longer be placed on the original contract, based on which alone it is now claimed that the agreement was not an unqualified commitment of Rs.15,00,000/-.
8. The following decisions were cited :-
(a) [A.B.C. Laminart Pvt. Ltd. vs. A.P. Agencies [(1989) 2 S.C.C. 163] was a case where the metallic yarn was supplied at Kaira and the contract provided that the disputes were subject to Kaira jurisdiction. The suit was filed in Salem. The trial court held that it had no jurisdiction to entertain the suit. The Supreme Court held that notwithstanding the clause in the contract which mentioned that all disputes should be resolved at Kaira, "it could not, therefore, be said that the jurisdiction of the court at Salem which court otherwise had jurisdiction under law through connecting factor of delivery of goods thereat was expressly excluded". Further, it was held that the "acceptance of an offer and its intimation results in a contract. Therefore, a suit could be filed in a court within whose jurisdiction the acceptance was communicated and the performance of a contract is part of a cause of action and the suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed, and if the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else". The same judgment was pressed into service by both the parties.
(b) In Battepati Parthasarathy Gupta vs. The Calcutta Glass and Silicate Works (1936) Ltd. [1948 (2) M.L.J. 101], which was cited by the learned Advocate General, it was held that from having regard to the terms of the contract, no part of the cause of action arose in Madras and therefore, leave was revoked. There, the facts were that there were two contracts relating to supply of certain glassware. The contracts were admittedly entered into at Calcutta and the question was whether any part of the performance of the contract took place at Madras. The construction placed on the contract for the application for revocation was that the agent would take delivery of the goods at Calcutta and despatch the same to his principal at Madras and it was contended by the plaintiff that as per the contract, the goods would be in the control and custody of the defendants until the money was paid at Madras. A learned single Judge of this Court held that the price was fixed FOR Calcutta. The delivery of the goods was Calcutta itself. The goods were to be delivered to the plaintiff or his agent or the plaintiff's place of business at Madras and in paragraph 10 of the judgment, held that no part of the performance was contemplated to take place at Madras and therefore, not even a part of the cause of action arose at Madras. It was further held that the leave was rightly revoked.
(c) In S. Nagaraj vs. S. Govindaswamy [A.I.R. 1984 Madras 212], a Division Bench of this Court ordered the return of the plaint, to be presented before the proper forum. The relevant paragraphs are as follows :-
"5. Mr. M. Srinivasan, learned counsel for the appellant, contends that here is an agreement at Madras, between the plaintiff and respondent I in respect of the dealing in lottery tickets and as such, part of the cause of action has arisen within the jurisdiction of the original side of this Court. Mr. Srinivasan next contended that the money in deposit with respondent 2 is being claimed by the plaintiff and respondent 2 bank was one of the panchayatdars to he dispute between the plaintiff and despondent 1, that the branch of respondent 2 is at Madras and that the suit can be filed at Madras in such circumstances."
There, on the side of the defendant, it was contended that no cause of action arose at Madras and the parties ought to have filed the suit at Coimbatore. It was further held thus:-
"8. Nowhere in the plaint it has beta alleged that there was an agreement between the plaintiff and defendant I at Madras for the purpose of purchasing a lottery ticket from Royal Bhutan Lottery and sharing the prize money, if won, equally between them. Mr. M. Srinivasan, learned counsel for the appellant fairly conceded that there is a specific averment to the above said effect in the plaint. But nevertheless, the learned counsel submits that reading the plaint as a whole, it can be assumed that the parties intended to share any prize money, if won from the Bhutan Lottery. We are afraid, we cannot assume such a thing when there is absolutely no averment as regards such agreement in the plaint itself."
(d) In Parameswari Veluchamy vs. T.R. Jayaraman [O.S.A. No.137 of 1997 dated 12.7.2001 MANU/TN/0529/2001], the plaintiff filed a suit for partition of several properties, amongst which most were in Aruppukottai and three properties were situated in the city of Madras. A learned single Judge of this Court had revoked the leave on the ground of convenience having regard to the location of the properties. Despite three items being outside Madras, all the defendants residing outside Madras, the documents in relation to the properties being outside Madras and the witnesses required to speak in respect of those properties resided in Madras, it should have been sold where the bulk of the properties were situated. As against that, the plaintiff filed an appeal. It was contended on behalf of the defendants that the order is a discretionary order and having regard to all the relevant factors, no interference is called for. The Division Bench held as follows :-
"9. There can be no doubt that this Court has jurisdiction to try any suit in relation to any land which is situated within the jurisdiction of this Court. No leave of the Court is necessary in such cases. In case where a part of cause of action arises within the jurisdiction of this Court as also in cases where the defendants do not reside or carry on business or work for gain within the jurisdiction of this Court, leave of the Court is essential. The grant of refusal of leave is discretionary."
"12. If the plaintiffs had brought the suit only in relation to the three items in Madras, as already noticed, question of granting leave would not arise, but having regard to all the facts of this case, it is clear that a mere claim made by them in relation to those properties cannot be made the foundation on which their claim for a share in all other properties all of which are outside Madras should be tried by this Court. It would be like trying to make an elephant stand on a pin head."
"21. Moreover, considerations of convenience are very germane while determining the question of grant, refusal of revocation of leave. Almost all the properties, the documents relating thereto and the witnesses who have knowledge of the same are outside the city of Madras."
(e) In Tuticorin Alkali Chemicals and Fertilizers Ltd. vs. Cochin Silicate and Glass Industries [(1992) 2 MLJ 376], a Division Bench of this Court considered the doctrine of forum conveniens and also referred to Halsbury's Laws of England in this regard. The relevant observations are extracted hereunder :-
"3. In that very appeal, we also considered as to what a cause of action means and recorded our considered opinion following the decision of a Full Bench of this Court in Lakshminarayana Chettiar, In re. (1954) 1 M.L.J. 403 : 67 L.W. 123 and a judgment of the Supreme Court in State of Rajasthan vs. Swaika Properties, (1985) 3 S.C.R. 598:
Cause of action is a fact which, if traversed 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 right to relief against the defendant.
The learned single Judge is, however, right in saying that in all cases where a part of the cause of action has arisen within the jurisdiction of one court and the other part within the jurisdiction of some other court, the relevant question will be the balance of convenience, but then has said : "In paragraph 5 of the counter-affidavit, the defendant has stated that the entire evidence whether documentary or witnesses, has to be produced at Madras for conducting the trial which would be highly impossible apart from being expensive. The defendants will be subjected to acute hardship and loss on the other hand, the plaintiff will not be subjected to any hardship as the plaintiff is having a branch at Mattancherry, Cochin and their distributor Devika Chemicals (P.) Ltd. is also at Cochin. The defendants have also referred to the necessity of summoning the records from Central Excise Department to speak to the supply of goods. Learned counsel for the plaintiff urges that there is no relevance and that it may not call for records from the Central Excise Department. But, it is not a matter which has to be considered at this stage, but, I am of the opinion that the defendants will be put to undue hardship if the suit is filed in this Court. On the other hand, since the plaintiff is having its branch office admittedly at Cochin, it will not be put to any inconvenience if the suit is filed in a competent court at Cochin, where admittedly a part of the cause of action has arisen."
"5. We do not say that in considering the balance of convenience as to the forum for instituting a suit, it would be necessary (like the principles of injunction) to see the ultimate injury that a party may suffer, but we do not find support to our view and we state in no uncertain terms that in deciding whether to refuse leave or not, it would be necessary to see on facts and not, on assumptions, who shall suffer the plaintiff or the defendant if the leave is granted or refused, as the case may be.
6. We would have proceeded ourselves to examine the facts pleaded on behalf of the plaintiff to see whether facts show that most of the transactions took place within the jurisdiction of this Court or a small part of the cause of action arose within the jurisdiction of this Court, for, if most of the transactions were done within the jurisdiction of this Court, obviously the defendants found it convenient to transact their business for all purposes within the jurisdiction of this Court, but only to defeat the grant of leave on the Original Side of this Court, the plea of convenience is raised. We would also have examined ourselves as to whether keeping in view the nature of the transactions between the parties from which transactions the present suit has arisen, it would be inconvenient to the plaintiff if he is asked to go to institute the suit in Cochin as pleaded by the defendants. We, however, refrain for, if we do so, we shall usurp the jurisdiction and discretion of the learned single Judge, who is to decide whether to grant leave or not. Since we are of the opinion that a proper adjudication is necessary on all relevant facts of the case before deciding whether to grant leave or not and since it has not been done in passing the impugned judgment, we are inclined to interfere with the impugned order. The impugned order, for the said reason, is set aside. The case is remitted to the Original Side of this Court for a re-hearing and decision on the question whether leave should be granted or not, in accordance with law. This appeal is accordingly allowed. No costs."
9. In the present case, the purchase order was sent to the Works Office at Chennai requesting him to return the duplicate copy of the erection and commissioning order as acceptance along with the acknowledgment of cheque received from their end. This was accepted at Chennai and returned to the plaintiff. Of course, it was submitted by the learned Advocate General that though the rubber stamp indicates as if the order was received in Chennai, actually it was personally received outside the jurisdiction. We are afraid, we cannot go beyond the averments made in the plaint and for that purpose, we can look into the documents and determine the issue as the tenor of the document indicates, at this stage. In this context, we would like to refer to the following observations made in (1948) 2 M.L.J. 101 (supra) :-
"11. It was further contended by the learned advocate for the appellant relying upon the observations of Rankin, C.J., in Secretary of State for India in Council vs. Golabrai Paliram, I.L.R. (1931) Cal. 150, followed in Hajee Adam Abdul Shakoor vs. Ali Mohamed Ebrahim Shakoor, I.L.R. (1940) 1 Cal. 497 that when questions of difficulty arises as to the jurisdiction, they should not be dealt with on an application for revocation of leave to sue, but should be determined at the trial by the framing of a preliminary issue. This aspect apparently was not pressed in the Court below. We are unable to find any question of difficulty or importance in this case which cannot be properly dealt with on application for revocation of leave to sue. For the respondents, it was urged that even if a part of the cause of action arose at Madras, on the ground of balance of convenience, the learned Judge was right in revoking the leave. There is no trace of this ground in the affidavit filed by them in support of their application; nor is it the ground on which the learned Judge revoked the leave to sue. We are unable to accept this contention of the respondents."
10. All the subsequent correspondence were also addressed only to the respondent at Chennai. In fact, even in the complaint filed before the Consumer Disputes Redressal Commission, the address for service on the respondent is shown as Chennai. Therefore, it is clear that the defendant was dealing with the plaintiff/respondent herein at Chennai. For deciding convenience, this is not a case where, as observed by the Division Bench in Parameswari Veluchamy's case (supra), where the facts indicated that the elephant is made to stand on a pin head. It is only the construction of the contract which is relevant for determining the issue and since prima facie we are of the opinion that the contract was entered into only at Chennai, it is not necessary for us to go beyond that and we hold that the learned single Judge rightly dismissed the application for revocation of leave.
11. In the result, the appeal is dismissed. No costs. Consequently, M.P. No.1 of 2009 is also dismissed.
sra/ab