1. The petitioner is the defendant. He is a transporting company. The respondent-plaintiff laid the suit for recovery of the value of certain goods consigned. M/s Motor Industries Limited, Bangalore entrusted the goods to the petitioner for transshipment and delivery of the same to the respondent at Hyderabad. Admittedly, they were consigned on 2-6-78 and 30-5-78. They were lost, and ultimately though the petitioner collected the freight charges, did not give delivery of the goods, or its value thereof. As a result, the respondent laid the suit for the value of the goods consigned. An objection has been taken with regard to the territorial jurisdiction of the lower court contending that the consignment note postulates that any dispute would be subject to the adjudication of the courts at Bombay since the Head office the petitioner-company is situated at Bombay. The trial Court negatived that contention and held that it had jurisdiction to try the suit. As against the said order, the present revision petition has been filed.
2. Sri S.V. Ramana Reddy, the learned counsel for the petitioner contends that the respondent, having agreed by implication for transhipment, is bound by the consignment note, and therefore, there is a contract between the parties accepting the jurisdiction of the court at Bombay to adjudicate the dispute, and as a result, the lower court has no territorial jurisdiction to take cognizance of the claim in the suit. Sri K.V. Reddy, the learned counsel for the respondent on the other hand, contends that the petitioner-company is having its branches at Hyderabad as well as at Bangalore. The Bangalore branch accepted for transhipment of the goods from Motor Industries Company Limited, at Bangalore, and no part of the cause of action arose at Bombay, and the respondent is not a party to the contract. The acceptance by implication cannot be inferred on the facts and circumstances in this case, and therefore, the view of the lower court is perfectly legal, and it is not vitiated by any material irregularity warranting interference in this revision. Upon these respective contentions, the question that arises for consideration is whether the lower court has got jurisdiction? The admitted facts are few and not in dispute. Admittedly, the consignor M/s Motor Industries Company Limited, Bangalore consigned the goods to the petitioner for transhipment and for delivery of the same to the respondent at Hyderabad, and for that the respondent is not a party. The only contention raised by Sri S.V. Ramana Reddy is that by acceptance of the receipt of the goods at Hyderabad by the consignor, the necessary inference is that it should be deemed that the respondent has accepted the condition of jurisdiction also with regard to the dispute. Whether the respondent has accepted the condition or not, is a question of fact, and on the facts in this case, there is no definite evidence to the effect that the respondent has accepted as a fact the conditions stipulated for transhipment by the petitioner. No part of the cause of action arose at Bombay. The cause of action partly arose at Banglaore and partly arose at Hyderabad. Admittedly, the courts at Hyderabad or at Bangalore had jurisdiction to try the dispute. The only question is by virtue of a contract between the parties, the jurisdiction of Bombay court is also invested. As I have said earlier, there is no definite material to come to the conclusion that the respondent has accepted the consignment subject to the conditions prescribed in the note that the dispute will be subject of the jurisdiction at Bombay. Sri S.V. Ramana Reddy, the learned counsel for the petitioner has relied upon the judgment of this court in MBT Co., Madras v. A. Narasimha Rao, (1968) 1 Andh WR 424 wherein this court has held that in holding that an agreement between two parties, whereby they agree to have their disputes arising out of a particular transaction settled in one or other of the courts which have jurisdiction, is valid, the lower court is plainly wrong. S. 28 of the Contract Act does not stand in the way of such an agreement because that section prohibits only an agreement which restricts absolutely the right of a party to enforce his rights in the ordinary tribunals and by the usual legal proceedings. Where the parties agree to have their disputes arising out of a particular transaction settled in a particular forum, any other forum which has also territorial jurisdiction, is precluded from entertaining a suit. In that case, it was held that the jurisdiction of the Sattenpalle Court was excluded by agreement between the parties. Therefore, that court has no jurisdiction and as per the contract , the Madras Court is having jurisdiction. Subsequently, in another decision of this court by Rama Rao, J., in M/s B.A.Transport Co. v. Bankatlal (1982) 1 APLJ 284, the learned Judge has considered a catena of decisions, and held thus:
'the parties by a concluded and binding agreement can choose to have the jurisdiction of one of the courts where part of the cause of action arose, and excluded the other court. The condition precedent for such exercise of choice is that part of the cause of action should arise in the court where the parties agree to have the disputes adjudicated and also in the courts excluded by agreement. The contract between the parties with regard to the exclusion of jurisdiction of a court can be either express or implied but the contract should be unequivocal and should be precise and definite. The contract is binding and conclusive on the parties to the agreement but it cannot be fastened on the third parties unless it is satisfactorily shown that the third party is privy to the contract or acted upon the contract consciously knowing the fact and implications of the said agreement. It must be shown that the third party is made aware of the implications of the agreement.'
3. The learned Judge also noticed the decision of Basi Reddy, J., referred to earlier, and distinguished he same. If find that there is enough force in that distinction drawn by Rama Rao,J., I have already found that on the facts in this case, there is no concluded evidence that the respondent has agreed to the conditions postulated in the consignment note on which reliance has been placed by the respondent. Under these circumstances, it cannot be concluded that the respondent had agreed by implication for the note in the consignment, namely, that the dispute should be settled at the Courts at Bombay. Added to that, no part of the cause of action had arisen at Bombay. It has arisen only at Hyderabad where the goods are to be delivered, or at Bangalore where the goods have been entrusted to the petitioner. Under these circumstances, even if there is an agreement to the effect that there is a stipulation that the adjudication should be at Bombay, in view of the fact that no part of the cause of action had arisen at Bombay, jurisdiction cannot be conferred on the Courts at that place. Accordingly, it must be held that the lower Court within whose territorial limits the cause of action has arisen, has got jurisdiction to decide the dispute, and take cognizance of the claim. Accordingly, the order of the lower Court is not vitiated by any error of jurisdiction warranting interference in this revision. The revision is therefore dismissed with costs.
4. Revision dismissed.