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Girisons Distributors and ors. Vs. Parekh Brothers and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 699 of 1981
Judge
Reported in1983(2)BomCR309
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20
AppellantGirisons Distributors and ors.
RespondentParekh Brothers and ors.
Appellant AdvocateViraj V. Tulzapurkar and ;I.R. Joshi, Advs.
Respondent AdvocateV.Z. Kankaria, Adv. for respondents 1, 2 and 3 and ;R.K. Iyer i/b. Mulla and Mulla, for respondent No. 4
Excerpt:
- .....by mr. tulzapurkar that the parties had agreed that out of the two courts having jurisdiction-pune and nasik, they would submit to the jurisdiction of the court at pune and in view of this agreement, the parties must submit to the jurisdiction of the court at pune and the court at nasik should not exercise jurisdiction.6. the short point that arises for determination, therefore, is whether a condition printed on the reverse of an invoice which condition has been set out earlier, can be held to be an agreement between the parties to submit their disputes to the jurisdiction of the court at pune. in this connection my attention was drawn to a decision of the nagpur bench of this court in the case of m/s. hindustan tiles corporation v. kisanlal mataprasad agarwal, reported in :.....
Judgment:

Sujata V. Manohar, J.

1. The petitioner are original defendants 1 to 4 in Special Civil Suit No. 56 of 1979 filed by the plaintiffs who are respondents 1 to 3 herein, in the Court or Civil Judge, (Senior Division) at Nasik. The petitioners have filed the present petition challenging the order of the learned Civil Judge, (Senior Division) under which he has come to the conclusion that this Court had jurisdiction to entertain the suit.

2. The plaintiffs were appointed by defendants Nos. 1 to 4 as their exclusive stockists for retail sale of certain goods supplied by defendants Nos. 1 to 4 to the plaintiffs. The defendants Nos. 1 to 4 carry on business at Pune and they supplied the goods to the plaintiffs from Pune. Under the agreement the plaintiffs stocked these goods and sold them in their shop at Nasik. The suit has been filed by the plaintiffs for a declaration that the termination of their agreement by the defendants 1 to 4 is illegal and not binding on the plaintiffs, for a declaration that defendant No. 1 was not entitled to charge certain amounts as octroi at Pune, and for accounts and other reliefs. In the plaint the plaintiffs have alleged that the agreement between the plaintiffs and the defendants Nos. 1 to 4 was arrived at in Nasik. They have submitted that a part of the cause of action has arisen at Nasik, and therefore, the Court of the Civil Judge (Session Division), Nasik has jurisdiction to entertain the suit.

3. The defendants challenged the jurisdiction of the Court at Nasik on the ground that the agreement between the parties had been arrived at in Pune and not at Nasik. According to the, no part of the cause of action arose in Nasik. They also relied upon a condition printed on the reverse of their invoice Exhibit 89 to the following effect :

'by correspondence and dealings subject to Poona jurisdiction.'

The defendants submitted that by virtue of this condition also the Court at Nasik had no jurisdiction.

4. In view of the dispute raised by the defendants regarding jurisdiction, a preliminary issue was framed by the Court to determine whether the Court had jurisdiction to entertain the suit. On this preliminary issue evidence has been lead by both the parties to determine the place where the agreement was arrived at. The learned Judge, after examining and discussing the evidence which has been led by the parties, has come to the conclusion that the agreement must have been executed at Nasik. At this point it is not necessary to go into the evidence in detail to determine the place where the agreement was arrived at because, in the present case, since the goods were delivered to the plaintiffs at Nasik pursuant to the agreement, a part of the cause of action has, at any rate, arisen in Nasik. In fact, in the course of his agreement, Mr. Tulzapurkar, learned Counsel for the petitioners did not seriously contend that no part of the cause of action had arisen in Nasik. In the circumstances under section 20 sub-section (c) of the Code of Civil Procedure, 1908, the Court at Nasik, where a part of the cause of action has arisen, would have jurisdiction to entertain the suit.

5. It was however, contended by Mr. Tulzapurkar that the parties had agreed that out of the two courts having jurisdiction-Pune and Nasik, they would submit to the jurisdiction of the Court at Pune and in view of this agreement, the parties must submit to the jurisdiction of the Court at Pune and the Court at Nasik should not exercise jurisdiction.

6. The short point that arises for determination, therefore, is whether a condition printed on the reverse of an invoice which condition has been set out earlier, can be held to be an agreement between the parties to submit their disputes to the jurisdiction of the Court at Pune. In this connection my attention was drawn to a decision of the Nagpur Bench of this Court in the case of M/s. Hindustan Tiles Corporation v. Kisanlal Mataprasad Agarwal, reported in : AIR1979Bom69 . In this case, on the reverse of the printed contract there was a condition in English that the Court at Trichur would have jurisdiction in the matter. The Court held that on the facts and circumstances of the case the plaintiff was aware of this term of the agreement and understood it and that it was open to the parties by agreement to restrict a forum to try the suit. In that case the condition restricting jurisdiction was printed on the agreement itself. In the present case however, the agreement between the parties dated 7th August, 1974 which has been relied upon by the parties does not contain any such condition restricting jurisdiction. Admittedly an agreement in writing was arrived at between the parties which governed the supply of goods by the defendants Nos. 1 to 4 to the plaintiffs. In this agreement in writing there is no condition restricting the jurisdiction of any Court. This condition is to be found only on the reverse of the bills which are sent by defendants Nos. 1 to 4 to the plaintiffs. In my view a condition printed at the back of a bill in these circumstances cannot be considered as an agreement arrived at between the parties. A bill or invoice is essentially a document which is sent by one party to another for the purpose of demanding payment for the goods supplied. Any condition printed on such a bill (other than, possibly, a condition pertaining to payment of interest for any delayed payment of the price) cannot be considered as an agreement between the parties. This would be particularly so in a case such as the present case where there is already an agreement in writing between the parties which governs their transactions. When there is such an agreement in writing, a party cannot alter the terms of this agreement unilaterally by inserting in the bill a condition restricting the jurisdiction of the Court at Nasik to try the disputes if any, between the parties.

7. Moreover, in the present case the language of the condition on which defendants Nos. 1 to 4 rely indicates that the defendants 1 to 4 are relying on the correspondence and dealings between the parties to establish that they had agreed to submit their disputes to the Court at Pune. This is not an unequivocal submission to the jurisdiction of the Court at Pune. I have not been shown anything either in the correspondence or in the dealings between the parties which would indicate that the parties had agreed to submit to the jurisdiction of the Court at Pune.

8. In these circumstances it is not possible to come to a conclusion that there was any agreement between the parties by which the parties had agreed to submit to the jurisdiction of the Court at Pune. In my view, therefore, the learned Judge was right in coming to the conclusion that the Court at Nasik had jurisdiction to entertain the suit. In the premises rule is discharged with costs. Stay is vacated.


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