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Ghatge and Patil (Transport) Ltd. Vs. Madhusudan Ramkumar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 685 of 1973
Judge
Reported inAIR1977Bom299; (1978)80BOMLR512; 1977MhLJ365
ActsCode of Civil Procedure (CPC), 1908 - Sections 9 and 20
AppellantGhatge and Patil (Transport) Ltd.
RespondentMadhusudan Ramkumar
Appellant AdvocateC.R. Dalvi, Adv.
Respondent AdvocateC.G. Gavnekar, Adv. for ;M.V. Sali, Adv.
Excerpt:
.....belgaum to be handed over to. plaintiff consignee at pimpri, within jurisdiction of poona court--goods forwarding note in english signed by consignor in english at belgaum--note bearing words in italics 'subject to kolhapur jurisdiction'--consignment not delivered--whether suit maintainable in poona court.;where more than one court has jurisdiction to entertain a suit, by agreement the parties can restrict the forum to a particular court.;under section 20(a) of the code of civil procedure, 1908, a suit can also be instituted in a court within the local limits of whose jurisdiction the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain.;a..........sarees ordered by the plaintiff to the defendants at their belgaum office under what is allied 'goods forwarding note' at exh. 72. at the top of this note it was written in italics in brackets 'subject to kolhapur jurisdiction,' this note is in the form of a request by the consignor to the defendants to accept these goods for transport and deliver them at pimpri. there is a tabular form in this note, the first column of which is meant to mention the name and full postal address of the sender; the second column is meant to mention the name and full postal address of consignee (if addressed to self the word 'self' is required to be written). then the third column is meant for description of articles or packages and then the columns that follow are meant for mentioning the number of.....
Judgment:

Apte, J.

1. The petitioners who were original defendants in the Court below are a public limited company doing business of transport by road and having their Head Office at Kolhapur. They have also sub-offices at different places to accept goods from the clients and to carry them to their destinations and deliver them to the consignees.

2. One of their offices is at Belgaum and also one at Pimpri within the limits of the Municipal Corporation of Poona.

3. The respondent is a shop styled as M/s. Madhusudan Ramkumar of which Shamsunder Lalchand Mundada is the proprietor. It is doing business of dealing in cloth at Poona.

4. It appears that the respondent-plaintiff placed an order for some handloom sarees with one Harinarayan Govindlal Zanvar of Shahapur, which is a suburb of Belgaum. Harinarayan Zanvar on receiving this order, entrusted a bundle containing sarees ordered by the plaintiff to the defendants at their Belgaum office under what is allied 'Goods Forwarding Note' at Exh. 72. At the top of this note it was written in Italics in brackets 'Subject to Kolhapur Jurisdiction,' This Note is in the form of a request by the consignor to the defendants to accept these goods for transport and deliver them at Pimpri. There is a tabular form in this Note, the first column of which is meant to mention the name and full postal address of the sender; the second column is meant to mention the name and full postal address of consignee (if addressed to self the word 'self' is required to be written). Then the third column is meant for description of articles or packages and then the columns that follow are meant for mentioning the number of articles and the value thereof.

5. Now, in Exh. 72 in the first column the name of the sender shown is H.G. Zanwar of Shahapur-Belgaum and in the second column the name of Madhusudan Ramkumar, has been mentioned as the consignee and the place has been mentioned as Pimpri. The description of the articles is given as 'H.L. Sarees' i.e. Handloom sarees, one gunny case. The value of the articles is shown as Rs. 1570-00. Below this tabular form there is an endorsement as follows:

'I/We do hereby certify that I/We have satisfied myself/ourselves, the description, marks or weight or quality of goods consigned by me/us have been correctly entered in the forwarding note and the 'consignment is booked with a full knowledge of conditions recorded on the reverse which conditions I/We accept.'

This endorsement has been signed by the consignor. The consignment was booked on May 13, 1970 from Belgaum.

6. The plaintiff's case was that this consignment of sarees which were purchased by him from the consignor ought to have been received by him within 3 or 4 days at the most at Pimpri but they were not received. He made repeated enquiries at the office of the defendants at Pimpri but he did not gel any satisfactory reply and therefore ultimately he concluded that the consignment had been lost by the defendants. He, therefore, served a notice dated July 8, 1970 through his Advocate on the defendants calling upon the defendants to deliver the consignment immediately or in the alternative to pay the price of Rs. 1576/- thereof together with interest at 10 per cent per annum.

7. No reply was received from the defendants to this notice and, therefore, the suit in which this civil revision application arises was instituted by the plaintiff on September 9, 1970 in the Court of Small Causes at Poona claiming to recover Rs. 1880/- from the defendants which included Rs. 1576/- as the price of the articles, Rs, 157/- on account of loss of profit which the plaintiff would have earned by sale of these articles, Rs. 30/- as interest in lieu of damages from 13-7-1970 till the date of suit, and Rs. 17/-being the expenses incurred for giving notice.

8. The claim was resisted by the defendants contending inter alia that the consignment having been accepted by the defendants for transport from the consignor subject to Kolhapur jurisdiction, the Court at Poona had no jurisdiction to entertain the suit. It was also contended that the plaintiff had no rightto sue since he was merely a consignee and that the suit was not maintainable inasmuch as under the terms of the contract, it was incumbent on the plaintiff to serve a notice on the defendants within 30 days from the dale of booking.

9. The trial Court held that although the Goods Forwarding Note, Exh. 72, mentioned at the top 'Subject to Kolhapur jurisdiction', that document did not amount to a contract between the parties. In this respect he relied on Amritsar Transport Co. Ltd, v. S. Sohanlal AIR 1957 J. & K. 7, and he held that since the consignment in this case was delivered to the defendants at Belgaum and it was to be handed over to the consignee at Pimpri within the jurisdiction of the Poona Court, no part of the cause of action having taken place at Kolhapur the Court at Kolhapur had no jurisdiction to try the suit but the Court at Poona had jurisdiction to try the suit On the question as to whether the plaintiff had a right to sue, the trial Court found that plaintiff having paid price of the goods had become owner of the goods and had therefore a right to sue. In fact, the observation of the learned Judge that the plaintiff had paid the price is contrary to what the plaintiff himself has stated in his evidence. The plaintiff has stated that he had not paid the price. But that, however, is not very material for our purpose. As regards the contention of the defendants that in the absence of notice within 30 days from the date of booking the suit was not maintainable, the view taken by the learned Judge is that the term printed on the reverse of the Goods Forwarding Note, Exh. 72, could not be said to be a part of the contract between the parties and, therefore, it was not a valid term.

10. As a consequence of these findings, the learned Judge decreed plaintiff's claim to the extent of Rs. 1750/- with interest at the rate of 4 per cent per annum on the principal amount of Rs. 1576/- from the date of suit till payment. The defendants have now come in revision.

11. When this revision application carne up for final hearing before My Lord the Chief Justice on April 29, 1976, as the question of jurisdiction which was rather important was involved, the matter was referred to a Division Bench. That is how this revision application has come to be placed before this Division Bench for final hearing.

12. On behalf of the petitioners it was contended that in view of the specific mention in the Goods Forwarding Note, Exh. 72, that the contract of consignment was subject to Kolhapur jurisdiction, it was incumbent on the plaintiff to bring the suit in the competent Court at Kolhapur and that therefore the Small Cause Court at Poona had no jurisdiction to entertain this suit.

13. Now, in the present case there can be no doubt that since the consignment was handed over to the defendants by the consignor at Belgaum, part of the cause of action arose within the jurisdiction of the Court at Belgaum and as the consignment was to be delivered to the consignee at Pimpri within the jurisdiction of the Civil Court at Poona, part of the cause of action arose within the jurisdiction of the Poona Court. Under Section 20(c) of the Code of Civil Procedure, therefore, this suit could ordinarily have been instituted either at Belgaum or at Poona. Now, it is well settled that where more than one Court has jurisdiction to entertain a suit, by agreement the parties can restrict the forum to a particular Court, or in other words the parties can agree that in case of dispute the suit may be filed in one of the Courts which are competent to entertain the suit.

14. On behalf of the respondent-plaintiff, however, it is contended that in the present case no part of the cause of action having arisen within the jurisdiction of the Court at Kolhapur, the Kolhapur Court had no jurisdiction. It was submitted that by agreement the parties cannot confer jurisdiction on a Court which has no inherent jurisdiction to entertain a suit, There can be no dispute or quarrel about this proposition.

15. However, in the present case, as can be seen from the Roadway Bill in respect of this consignment which has been produced at Exh. 68, the defendant-company had its registered office at Kolhapur and they also carry on their business at Kolhapur. Under Section 20(a) of the Code of Civil Procedure, therefore, a suit can also be instituted in a Court within the local limits of whose jurisdiction the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for again. Explanation II to this section says that a corporation shall be deemed to carry on business at its sole or principal office in India, or, in respect of any cause of action arising at any place where it has also a subordinate office at such place. The word 'corporation' used in this Explanation includes not only statutory corporation but it also covers a company registered under the Companies Act, as has been explained in Hakam Singh v. Gammon (India) Ltd. : [1971]3SCR314 .

16. It is, therefore, obvious that in the present case since the petitioners-defendants-company have its registered office at Kolhapur and it also carries on business at Kolhapur in addition to some other places in India, a suit against the defendant-company could be instituted in a Court at Kolhapur. The argument that the Kolhapur Court had no inherent jurisdiction and therefore merely by incorporating such words as 'Subject to Kolhapur Jurisdiction' in the Goods Forwarding Note the jurisdiction to entertain a suit could not be conferred on Kolhapur Court is therefore untenable.17. On behalf of the respondent it was argued that such a printed term can never be binding on the person to whom such a forwarding Note is issued unless the party to whom the document is handed over indicates either by word or deed that he has accepted the term. This argument also, in our view, cannot be accepted. As has already been stated above, the words 'Subject to Kolhapur Jurisdiction' have been prominently printed at the top of the front side of the Goods Forwarding Note, Exh. 72, and this Note is in the nature of a letter by the consignor to the defendants to transport the consignment from Belgaum to Pimpri for delivery to Madhusudan Ramkumar and the same has been signed in English by the consignor Mr. Zanwar, It can, therefore, be safely presumed that before the consignor affixed his signature to this document, he had gone through the contents of this Forwarding Note from the beginning to end and had after knowing them full well he lent his signature thereto. There is no reason to assume otherwise.

18. A person who signs a document which contains contractual terms is normally bound by them even though he has not read them and even though he is ignorant of their precise legal effect. It is only when the document is not signed but is merely delivered to him that the question would arise whether the terms of the contract were adequately brought to his notice. In this case, at the cost of repetition it may be mentioned that the consignor has affixed his signature in English below this Forwarding Note. The contents of the Forwarding Note are in English and the consignor has also signed in English. It cannot therefore even be argued for a moment that the consignor could not have understood what was printed above his signature in this Forwarding Note,

19. In this connection reference may usefully be made to L'Estrange v. F.-Graucob Ltd. (1934) 2 KB 394, In that case the buyer of an automatic slot machine signed and handed to the sellers an order form containing in ordinary print and writing the essential terms of the contract, and in small print certain special terms one of which was 'any express or implied condition, statement or warranty, statutory or otherwise not stated herein is hereby excluded.' The sellers (hereupon signed and handed to the buyer a printed order of confirmation assenting to the terms in the order form. The machine was delivered by the sellers to the buyer, who paid to the sellers an instalment of the price. The machine did not work satisfactorily, and the buyer brought an action against the sellers in the County Court claiming (inter alia) damages for breach of an implied warranty that the machine was fit for the purpose for which it was sold. The sellers pleaded (inter alia) that the contract expressly provided for the exclusion of all implied warranties. The buyer replied that the time when she signed the order form she had not read it and knew nothing of its contents and that the clause excluding warranties could not easily be read owing to the smallness of the print. There was no evidence of any misrepresentation by the sellers to the buyer as to the terms of the contract.

20. On these facts it was held that as the buyer had signed the written contract and had not been induced to do so by any misrepresentation, she was bound by the terms of the contract, and it was wholly immaterial that she had not read it and did not know its contents- Consequently the action failed and the sellers were held entitled to judgment.

21. Mr. Gavnekar for the respondent-plaintiff submitted that even in the presence of such a term in the contract, a party can institute a suit in a different Court having jurisdiction, In support of this argument he first relied on C. Satyanarayana v. L. Nara-simham, : AIR1968AP330 . That was a case arising out of a suit filed by the plaintiff for recovery of certain amount from the defendants who were partners of a firm C. Satyanarayana and K. Kotillingam Setty and Company. The plaintiff's case was that defendant No. 3 who was one of the partners of the firm had borrowed an amount of Rs, 500/- on February 25, 1953 from the plaintiff at Janardanapuram of Kandukor Taluka, in Andhra Pradesh.

22. All the defendants, except defendant No. 3, denied any liability. Defendant No. 3 who was alleged to have borrowed the money also denied to have borrowed any money but he in the alternative, inter alia, contended that the transaction had not taken place at Janardanapuram but had taken place in the City of Madras and hence the Court of District Munsiff of Kanigiri within whose jurisdiction Janardanapuram was situate had no jurisdiction to entertain the suit. In this respect reliance was placed by the 3rd defendant on a letter written by him on which the words 'subject to Madras Jurisdiction' were printed, and it was on the strength of this letter that it was contended that the Madras Court alone would have jurisdiction to try suit. A single Judge of the Andhra Pradesh High Court held that merely because the defendants had written a letter on the top of which 'Subject to Madras Jurisdiction' was printed, it could not become part of the contract unless it was agreed to by the plaintiff.

23. It is difficult to see how this ruling would be of any assistance to the plaintiff in this case. Simply because the defendant on his side wrote on the letter written by him the words 'Subject to Madras Jurisdiction', the plaintiff to whom the letter was addressed could not be held to be bound by what was written on the letter by defendant No. 3, unless of course the plaintiff had agreed to this term. It is obvious from the report that the plaintiff had never agreed to this term unlike in the present case where the consignor has himself signed the Forwarding Note, Exh. 72, which at the top contains the words 'Subject to Kolhapur Jurisdiction'.

24. Similarly our attention was also invited to three other rulings B. R. H. and M. (India) Ltd. v. S. E. A. Co. Ltd. : AIR1967Cal24 , B. S. S. S. Line v. M. and M. Trading Corporation, : (1970)1MLJ548 and Lakshminarain v. N.V. Vereenigde, : AIR1960Cal45 .

25. No doubt, in all these cases the document of contract contained a clause similar to the one in this case. However, the suits were instituted in the Court other than the one mentioned in the contract. But all these cases relate to contracts with foreign firms and the forum provided in the contract was in the foreign country whereas part of the cause of action had admittedly arisen within the jurisdiction of the Courts in India in which these suits were filed. However, relying on the clause in the contract, on behalf of the defendants a contention similar to the one raised in the present case was raised. Even so, it was held that the suits were maintainable in spite of this specific provision in the contract restricting the forum to a particular Court in foreign country. A perusal of the reports of all these cases shows that having regard to the fact that the forum mentioned in the contract was in a foreign country, the balance of convenience was taken into account. No doubt, the parties who make the choice of tribunal normally are bound by the contract and that should especially be the case as to the choice of the law applicable to the contract. However, enforcement by the Indian Courts of the choice of a foreign tribunal could not be ruled as imperative but it was observed in the case reported in : (1970)1MLJ548 that it should depend on the balance of convenience in particular circumstances and the exigencies of justice. The following passage from Cheshire in his Private International Law was in this connection quoted:

'As distinct from the express or implied choice of the proper law, the express choice of a foreign tribunal is not absolutely binding. In accordance with the excellent principle that a contractual undertaking should be honoured, there is indeed, a prima facie rule that an action brought in England in defiance of an agreement to submit to arbitration abroad will be stayed. The Cap Blanco (1913) P, 130, Austrian Lloyd Steamship Co. v. Gresham Life Assurance Society Ltd., LR (1903) 1 KB 249, but nevertheless the Court has a discretion in the matter and where the parties are amenable to the jurisdiction, as for example, where the defendant is present in England, it will allow the English action to continue if it considers that the ends of justice will be better served by a trial in this country (The Athenee (1922) 11 LLL Hep 6 The Fehmarn (1958) 1 WLR 159.

26. Now, in all these three cases the substantial part of the cause of action had arisen in this country and also major part of the evidence was available in this country and, therefore, on the ground of convenience it appears to have been held that in spite of the contract to the contrary, the actions were maintainable in the Courts in this country.

27. It was argued on behalf of the respondent that similar considerations also arise in this case- It was submitted that the consignment was to be delivered by the defendant's office at Pimpri within the jurisdiction of Poona Court and, therefore, the person in charge of the office at Pimpri would be the person who would be able to state whether the consignment was received and if so when and what happened to the consignment and why it could not be delivered to the consignee, In our view, however, since the Court or the forum which the parties bad chosen by their contract in this case was not so inconvenient as to cause any injustice to the parties, this argument should not prevail. It is also not possible to hold that any great hardship would be caused to the plaintiff by requiring him to institute the suit in which according to the contract it was agreed to be instituted,

28. It was also attempted to be argued for the respondent that even if by the terms of the contract the parties agree to choose a particular forum, it does not mean that other Courts otherwise competent to entertain the suit cannot entertain and try it or in other words the jurisdiction of such Courts is thereby ousted. Mr. Gavnekar in this connection invited our attention to Patel Bros. v. Vadilal, : AIR1959Mad227 .

29. In that case the plaintiff which was a firm carrying on business at Madras had entered into a contract at Bombay for the purchase of one bale of cotton cloth with the defendants, a limited liability company carrying on business at Bombay. According to the plaintiff, the delivery was to be made at Madras. The defendants contested the claim and one of the objections taken was that the Madras Court had no jurisdiction over the subject-matter of the suit. A bill Ex. P. 1, issued by the defendants to the plaintiff was in this connection relied upon. This bill evidenced the contract between the parties and at the top of it the words 'Subject to Bombay jurisdiction' similar to the words in the present case were mentioned and underlined. There was nothing to indicate in the contract itself that the delivery was to be made at Bombay and that the document stated that the goods were to be despatched to Madras and specific mention was also made to 'No. 7, Godown Street, Madras', which was presumably the place where the goods were to be consigned. There was no evidence as to how the price was to be realised by the plaintiff nor was there any evidence to show as to when the property in the goods were intended to pass to the buyer. The averments in the plaint seemed to suggest that the delivery was intended to be made at Madras. It was held that the mere printing of the words 'subject to Bombay jurisdiction' in Ex. P. 1 could not amount to a contract that both the parties agreed to have Bombay as the venue for the settlement of disputes. The mere recital on the top of the bill could not be incorporated as a term of the contract. It was further held that ouster of jurisdiction of a court to which a person is entitled to resort to under the Civil Procedure Code or any other statute cannot be a matter of assumption or presumption but one to be proved by express words contained in the contract or at least by necessary or inevitable implication, On the facts of that case it was held that this test was not satisfied in that case.

30. In the case in hand, however, as we have already discussed above, the words 'Subject to Kolhapur jurisdiction' were prominently printed in Italics at the top of the Forwarding Note. The contents of the entire Forwarding Note are in English and the consignor also signed in English. The consignor, therefore, very well knew or can be presumed to have known what were the contents of this Forwarding Note to which he subscribed his signature. There would, therefore, be an inevitable implication that we consignor knew full well when he signed this Forwarding Note that this contract was subject to the jurisdiction of the Court at Kolhapur and knowing this full well he entered into this contract. In our view, therefore, having regard to the terms of the contract, the parties by their agreement had agreed that any dispute arising out of this contract would be decided by the Court at Kolhapur.

Wednesday 17th November 1976.

31. In this view of the matter it is obvious that the Small Cause Court at Poona had no jurisdiction to entertain the suit and, therefore, it ought to have returned the plaint to the plaintiff for presentation to the proper Court.

32. Lastly Mr. Gavnekar for the respondent-plaintiff submitted that this being an action in tort and not on contract, the term of the contract contained in the Goods Forwarding Note, Exh. 72, would not be applicable to the present suit or would not govern this suit. This argument, however, is without any foundation. A bare reading of the plaint would show that the suit has not been based on any tortious act alleged to have been committed by the defendants. The allegations made in the plaint disclose that the claim has been based entirely on the contract to transport the goods from Belgaum to Pimpri and to deliver them to the plaintiff pursuant to the contract contained in the Goods Forwarding Note, Exh. 72, There is not even a remotest suggestion from which any case based on tort could be spelt out. No negligence or conversion of goods has been alleged by the plaintiff against the defendants. It is also not shown that the defendants owed any duly to the plaintiff and the former failed to discharge that duty or did not act with due care and caution in the discharge of that duty. In these circumstances it is not possible to accept the argument that the suit as framed should be treated as one based on tort and should be held to be within the jurisdiction of die Poona Court.

33. In the view which we have taken on the question of jurisdiction, it is not necessary for us to decide the other questions raised on this revision petition, namely, as to whether the plaintiff had a right to sue and whether in the absence of any notice as stipulated in clause 19 printed on the reverse of Exh. 72 the suit would be maintainable.

34. In the result, we make the rule absolute, set aside the decree passed by the Court of Small Causes at Poona and direct that the trial Court on receipt of the record should return the plaint to the plaintiff for presentation to the proper Court at Kolhapur. We make no order as to costs throughout.

35. Order accordingly.


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