Sanjay Kishan Kaul, J.— The appellant seeks protection under Sick Industrial Companies (Special Provisions) Act, 1985 (referred to as SICA) not only for the purposes of not paying the lease rentals but also as remedy not to handover the wind-mills being the subject-matter of the lease agreement and to continue to run the same without giving any compensation to the respondent who is the lessor of the said wind-mills.
2. The respondent has filed the suit for recovery of unpaid lease rentals as also for return of the wind-mills which were subject-matter of the lease agreement specifically in view of termination of the lease agreement as a consequence of the respondents not having paid the amounts in terms of the lease agreements. The parties to the present appeal had entered into a lease agreement dated 28th March, 1995 in respect of the wind-mills to be installed at Mupandal, Kanyakumari in the State of Tamil Nadu. The said wind-mills were delivered and installed and were used by the appellant. The appellant, however, only paid the first four instalments regularly, being quarterly instalments, and thereafter informed the respondent vide their letter dated 5th April, 1996 that due to shortage of funds they were compelled to defer the payment of lease rentals. Suffice to say that certain cheques towards lease rentals bounced and the appellant failed to comply with their contractual obligations under the lease agreement dated 28th March, 1995. It was in these circumstances that the respondent filed the suit in the Delhi High Court.
3. The appellant contested the suit and filed the written statement where inter alia they raised the plea of the suit not being maintainable in view of section 22 of sica. The appellant also contended that they had filed a suit for recovery of Rs. 1,02,05,956/- in the civil court at Pune for damages in relation to the lease agreement.
4. The respondent had filed certain interlocutory applications for interim reliefs. The two relevant applications which have given rise to the two appeals are IA No. 8538/97, for appointment of a Local Commissioner to take over possession of the equipment and IA No. 5657/98, for directions to the appellant to hand over possession of the two wind-mills from the appellant which were subject-matter of the dispute. These two applications along with certain other applications were disposed of by the impugned order dated 17th May, 2001 by the learned Single Judge. The learned Judge was pleased to allow the said two applications while declining reliefs in certain other Applications in view of Section 22 of the SICA.
5. Mr. A.S Chandhiok, learned counsel for the appellant contends that the learned Single Judge has not correctly applied the law laid down by the Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, AIR 1992 SC 1439. insofar as the application of the provisions of section 22 of sica are concerned. It is Mr. Chandhiok's contention that facts of Shree Chamundi Mopeds case applied to the peculiar facts and circumstances of that case as it related to leased premises, the lease of which had been terminated but the occupation continued as a result of the protection granted under Karnataka Rent Control Act. Mr. Chandhiok specifically referred to para 13 and 15 of the said judgment. It was further contended that subsequent judgments of this court following the Supreme Court judgment in abovenoted case were per incuriam as this aspect has not been analysed.
6. We are unable to accept this contention advanced by learned senior counsel for the appellant. The ratio of the judgment of Supreme Court is not restricted to only leased premises protected by the provisions of a Rent Control Act. In fact in the present case the period of lease agreement has now expired and yet the appellant has continued to be in possession and use of the wind-mills. The wind-mills are not owned by the Appellant. The provisions of section 22 of the SICA would thus not come to the rescue of the appellant in view of the judgment of Shree Chamundi Mopeds' case (supra).
7. Mr. Chandhiok, learned senior counsel for the appellant also sought to advance an argument that the wind-mills are embedded in the earth and thus are immov. able property and as a consequence thereof the courts at Delhi would have no jurisdiction in the matter. We are unable to accept this contention of Mr. Chandhiok as the wind-mills were delivered and subsequently installed. These wind-mills are capable of being removed and cannot be said to be immovable property.
8. The learned senior counsel for the appellant finally contended that the court at Delhi would have no jurisdiction to deal with the subject-matter of the suit in view of the jurisdiction having been conferred on the courts at Pune. He further contended that a suit was already filed by the appellant in the courts at Pune for damages arising from the lease agreement. Mr. Rajiv Nayar, learned senior counsel for the respondent referred to the Memorandum of Understanding dated 10th January, 1998 executed between the parties and contended that the question of any grievances in respect of the functioning of the wind-mills against the respondent sought to be. advanced by the learned counsel for the appellant did not arise in view of the said Memorandum of Understanding whereby the respondent had agreed to pay the balance lease rentals and the appellant had agreed to withdraw the proceedings filed at Pune. There is a force in the contention of learned counsel for the respondent. Thus the only question to be considered by us is whether the lease agreement provides for exclusive jurisdiction of the Pune courts to deal with the subject-matter.
9. The learned single Judge has extensively considered the legal position in respect of the jurisdiction of the courts and referred to the judgment of the Supreme Court in Patel Roadways Limited, Bombay v. Prasad Trading Company., (1991) 4 SCC 270 and ABC Laminart Pvt. Ltd. & Anr. v. A.P Agencies, Salem, (1989) 2 SCC 163.
10. The relevant clause in the lease agreement dated 28th March, 1995 is clause 11.6 which is as under:—
“11.6 All moneys payable hereunder shall be payable at the Registered Office of the LESSOR. On completion of the hire the LESSEE shall deliver the EQUIPMENT at the LESSOR'S Registered Office of the LESSOR. As a material and substantial part of the obligations of the LESSEE are to be performed at Pune where the LESSOR'S Registered office is situated, the LESSEE expressly agrees that all legal proceedings by or against the parties hereto shall be instituted in the courts at Pune which courts shall have exclusive jurisdiction. Without prejudice to the foregoing the LESSOR may at its discretion at the time of execution of this Agreement agree to accept jurisdiction of courts other than at Pune.”
11. Mr. Chandhiok, learned senior counsel for the appellant submitted that it is an undisputed position that the lessor had not exercised its discretion at the time of execution of the agreement to accept jurisdiction of courts other than Pune. Mr. Chandhiok thus submitted that it is the courts at Pune alone which would have jurisdiction. On the other hand, Mr Rajiv Nayar, learned senior counsel for the respondent, contended that it was the lessee alone who was bound by the clause to the effect that all legal proceedings shall be instituted in the courts at Pune which courts shall have exclusive jurisdiction but the said restriction did not apply to the lessor i.e the respondent.
12. It cannot be disputed that the course both at Pune and at Delhi would be the courts which would have jurisdiction but for any ouster clause. Thus what has to be considered is whether clause 11.6 aforesaid excluded the jurisdiction of all other competent courts and conferred jurisdiction alone on the courts at Pune.
13. The Supreme Court in the case of ABC Laminart (supra) clearly observed that for deciding whether there is ouster or jurisdiction of other courts, the ouster clause has to be scrutinised. It is only when the ouster clause is clear, unambiguous and specific accepted notions of contract would bind the parties, that ouster clause will confer the jurisdiction on the specific court and would oust the jurisdiction of other courts exercising jurisdiction. This would clearly require use of words like ‘alone’, ‘only’ and ‘exclusive’. What will be appropriate will depend on facts of each case.
14. We have considered the submissions of learned counsel for the parties and it is our considered view that it is not a case where jurisdiction of competent courts have been clearly, unambiguously and explicily excluded. Though the word ‘exclusive’ has been used the clause seems to suggest that restriction may have been placed only on the lessee i.e, appellant. Be that as it may, if there are two interpretations of a clause then a wider interpretation must be given for the purposes of jurisdiction and the jurisdiction of a competent court should not be ousted unless the case is clear and unambiguous.
15. The appellant has not paid instalments, wants to continue to use the machinery and earn money from it in an un-business like manner only as a consequence of the appellant having moved the competent authority under SICA.
16. The learned Single Judge has examined all these aspects and we are in agreement with the conclusion of the learned Single Judge.
17. We find no merit or substance in the appeal. The appeal is dismissed with costs quantified at Rs. 5,000/-.