Skip to content


The Special Secretary to Government of Rajasthan and ors. Vs. Vedakantara Venkataramana Seshaiyer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 124 of 1980
Judge
Reported inAIR1984AP5
ActsCode of Civil Procedure (CPC), 1908 - Sections 21(1); Indian Contract Act, 1872 - Sections 2
AppellantThe Special Secretary to Government of Rajasthan and ors.
RespondentVedakantara Venkataramana Seshaiyer and ors.
Appellant AdvocateM. Rajasekhara Reddy, Adv.
Respondent AdvocateS. Venkata Reddy, Adv.
Excerpt:
civil - jurisdiction - section 21 (1) of code of civil procedure, 1908 and section 2 of indian contract act, 1872 - 1st respondent purchased prize ticket which eventually got lost - nobody else claimed under lost ticket - suit filed by 1st respondent for recovery of sum of rs. 234750 and subsequent interest and costs - court below granted decree against appellants - appellants contended that as per scheme published in gazette of rajasthan courts in rajasthan alone have jurisdiction and that suit was not maintainable in subordinate court, visakhapatnam - clause on reverse of lottery ticket is not part of contract between parties - 1st respondent is not bound by clause relating to ouster of jurisdiction - objection relating to jurisdiction is liable to be rejected - held, court at.....jagannadha rao, j.1. the appellants are defendants 1 and 2. the respondents are the plaintiff, 3rd defendant and the 4th defendant. the suit has been filed by the 1st respondent for recovery of the sum of rs. 2,34,750/- and subsequent interest and costs. the court below granted a decree against defendants 1 and 2 to pay to the plaintiff the said sum of rs. 2,34,750/- with subsequent interest at 6% p. a. on rs. 2,25,000/- from 27-8-1974 on which date the suit was filed till payment and costs.2. the state of rajasthan which is the 1st defendant sponsored a welfare scheme of state lotteries and appointed the 2nd defendant, the director of small savings as the director of state lotteries. the lottery tickets were being sold by the state of rajasthan in most of the states in india though.....
Judgment:

Jagannadha Rao, J.

1. The appellants are defendants 1 and 2. The Respondents are the plaintiff, 3rd defendant and the 4th defendant. The suit has been filed by the 1st respondent for recovery of the sum of RS. 2,34,750/- and subsequent interest and costs. The Court below granted a decree against defendants 1 and 2 to pay to the plaintiff the said sum of Rs. 2,34,750/- with subsequent interest at 6% P. A. on Rs. 2,25,000/- from 27-8-1974 on which date the suit was filed till payment and costs.

2. The State of Rajasthan which is the 1st defendant sponsored a welfare scheme of State Lotteries and appointed the 2nd defendant, the Director of Small Savings as the Director of State Lotteries. The lottery tickets were being sold by the State of Rajasthan in most of the States in India though agents and sellers. The 3rd defendant, one. Banka Pydithalli is a resident of Vijayanagaram in Andhra Pradesh and is a dealer in lottery tickets under the name and style of Sri Venkateeswara Lucky Prize Center, vijayanagaram. Details of the prize structure, bonus offered to the agents and sellers of each draw are printed on the reverse of each ticket. A specimen ticket containing particulars relating to the 30th draw was filed along with the plaint.

3. The plaintiff purchased one Rajasthan Stte Lottery ticket No. D-8400618 of the 30th draw to be held on 15-12-1972 from one D. Sudarsana Rao, who was an employee of the 3rd defendant at Welcome Lodge, Vishakapatnam-1 in November, 1972. The said Sudarsana Rao asked the plaintiff to furnish his address after taking one rupee from the plaintiff and the plaintiff gave his address as 'V. V. Sesha Iyer, door No. 25-21-4, Chagantivari Street, Visakhapatnam-1. There is no dispute that the said salesman noted the above address on the counterfoil of the ticket in Telugu. The ticket was handed over to the plaintiff which, according to him; was kept in his purse.

4. It is the case of the plaintiff that duringthe first week of December, 1972 his purse was lost at Poona market as the same was 'pickpocketed' by someone and the plaintiff did not mind the loss as the purse contained some small change and was unmindful of the lottery ticket and did not think of making a police report. But it is admitted that on 18-12-72 the 3rd defendant came to the plaintiff's house and met the plaintiff and enquired about the ticket and ultimately disclosed that the plaintiff's ticket purchased from the 3rd defendant's salesman had won the first prize of Rs. 2,50,000/- in the 30th draw of the Rajasthan State Lottery on 15-12-1972. The plaintiff felt overjoyed by his luck but was worried about the loss of the ticket. On the advice of the 3rd defendant the plaintiff made a report to the nearest Police Station on 18-12-72 and he later sent a telegram Dt. 19-12-72 to the2nd defendant Director of Lotteries intimating about the loss of the ticket and also requesting him not to pay the prize amount of Rs. 2,50,000/- to any other person. The police report is evidenced by Ex. A-1 while the telegram to the Director is marked as Ex. A-2. Later the plaintiff also sent a registered letter Ex. A-4 to the Director on 21-12-72 confirming the telegram and furnishing details about the loss of the ticket. The said letter was received by the Director of Lotteries on 26-12-72 but there was no reply. As there was no response to several reminders the plaintiff issued a registered lawyer's notice dated 17-7-73 marked as Ex. A-6 demanding the defendants 1 and 2 to pay the prize amount within a week of the receipt of the said notice. The said notice was received by the 2nd defendant on 17-7-73 but there was no reply. The plaintiff then issued a notice under Section 80 CPC on 5-12-73 which is marked as Ex. A-8. As the plaintiff did not receive the acknowledgment he lodged a complaint to the postal authorities and ultimately he issued a fresh notice under Section 80 C. P. C. on 15-4-74 which is marked as Ex. A-12 and which was issued to the defendants 1 and 2. The postal authorities intimated the plaintiff that the notice dated 5-12-73 was in fact delivered to the 1st defendant on 11-12-1973 and to the 2nd defendant on 10-12-1973. As there was no response the plaintiff filed the present suit in forma pauperis.

5. The 3rd defendant (P. W. 1) who was a dealer in lottery tickets for Rajasthan lotteries had sent the coreesponding counterfoil (relating to the plaintiff) to the 2nd defendant and claimed the bonus payable to the dealer in respect of 3400 tickets for the next draw. This demand was honoured by the 2nd defendant who admittedly sent to the 3rd defendant 3400 tickets of the 31st draw towards the said bonus. Likewise the 2nd defendant delivered on Ambassador Car towards the Agent's bonus for the said draw to M/s. Veera Agencies, Calcutta who are one of the agents of the 2nd defendant in the 30th draw.

6. The defence raised by defendants 1 and 2 may be summarised as follows: According to them they are not aware that the plaintiff purchased Rajasthan State Lottery ticket No. D-840618 from Sri D. Sudarsana Rao (P. W. 2). They are also not aware that the said Sri. D. Sudarsana Rao was a sales ;boy of the 3rd defendant. They are also not aware that the 3rd defendant (P. W. 1) was selling tickets in the name and style of Venkateswara Lucky Prize Center, Vijayanagaram. In effect they put the plaintiff to strict proof fo the fact that he was the purchaser of the above ticket. They stated that the plaintiff had to prove that his address was noted on the reverse of the counterfoil or that he lost the ticket. They relied upon the Rules to say that the plaintiff was bound to take care of his ticket. They contended that without production of the original ticket by the plaintiff he was not entitled for the lottery money according to the scheme which was published in the Gazette of Rajasthan dated 12-12-1966 which published the notification dated 10-12-68 (Ex. B-1). They stated that as per Rule 12 unless the prize winner surrendered the prize winning ticket duly signed with the form annexed, to the 2nd defendant within 30 days from the draw the prize need not be given to the plaintiff. They also contended that under the scheme the courts of Rajasthan alone have jurisdiction and that therefore the suit was not maintainable in the Sub-Court, Visakhapatnam.

7. On these pleadings the court below framed four issues. On the first issue it held ;that the plaintiff was the purchaser of the ticket in question. On the second issue it came to the conclusion that the plaintiff in fact lost the ticket as contended by him. On the third issue after referring to the relevant rules the court below came to the conclusion that below came to the conclusion that the plaintiff was entitled to the prize money without production of the ticket and that the plaintiff made a claim within 30 days as required. In the result the court below decreed the suit. It ;may be noted that initially by a separate order dated 17-2-78 made in I. A. No. 13/76 which was an application filed by the defendants 1 to 4 the lower court held that the Visakhapatnam court had the territorial jurisdiction to entertain the pauper application O. P. No. 131/74 which was subsequently numbered as O. S. No. 113/78.

8. In this appeal Sri. M. Rajasekhara Reddy, learned counsel for the appellants contended that the Sub-Court at Visakhapatnam had no jurisdiction to try the suit and that the plaintiff should have filed the suit in the courts in the State of Rajasthan. The second contention urged by him is that the plaintiff had to produce the original ticket and had to follow the other procedure envisaged in the rules and that the plaintiff having failed to produce the ticket or comply with the procedure he was not entitled to the prize money.

9. On the other hand, it is contended by Sri. S. Venkata Reddy, the learned counsel for the plaintiff-respondent that the Sub-Court at Visakhapatnam had territorial jurisdiction to try the suit. He also contended that once the plaintiff was identified as the purchaser of the relevant ticket and there was no other claimant for the prize money the plaintiff was entitled to receive the lottery amount and that the plaintiff had complied with the procedure envisaged in the rules. The production of the original ticket, according to him, was not a condition present.

10. On these contentions the following two questions arise for consideration:

(1) Whether the Sub-Court, Visakhapatnam was competent to entertain and dispose of the present suit?

(2) Whether the plaintiff is entitled to the prize ;money without production of the lottery ticket and whether he has otherwise complied with the procedure for receipt of the money?

11. Before taking up these questions we shall advert to the facts relating to the question whether the plaintiff was the purchaser of the prize winning ticket No. D-840618 of Rajasthan State Lotteries.

12. There is voluminous evidence in this regard and having regard to the same the learned counsel for the appellants could not challenge the finding in this regard. We may state that the 3rd defendant was examined as P. W. 1 and he deposed that his agent Sri D. Sudarsana Rao (P. W. 2) sold ticket No. D-840618 to the plaintiff in respect of the draw to be held on 15-12-72 and that his agent wrote the name and address of the plaintiff on the counterfoil of that ticket. That counterfoil was sent to the Director of Rajasthan State Lotteries by P. W. 1 after taking the photo of the counterfoil. Ex. X-1 was marked as the negative of that photo and Ex. X-2 as its print, Enlargement of the photo is Ex-3 and X-4 is the negative of the enlargement. In Ex-X-2 the address of the plaintiff was noted as V. V. Sesha Ayer, 25-21-4, Chagantivari Street, Visakhapatnam-1. After the number of the prize ticket was published in the newspaper on 18-12-1972 at Vijayanagaram, P. W. 1 came to Visakhapatnam along with the counterfoil and went to the house of the plaintiff and informed him. Thereafter the plaintiff sent a telegram to the 2nd defendant and P. W. 1 also wrote to the 2nd defendant and P. W. 1 also wrote to the 2nd defendant under Ex. X-5. On 22-12-1972 he sent the counterfoil to the 2nd defendant along with the letter Ex. X-61 P. W. 1 was given the vendor's prize to the tune of Rs. 3,400/- by way of tickets for the subsequent draw and Ex. X-8 is the voucher showing the numbers of tickets given to P. W. 1 towards the vendor's prize. Ex. X-9 shows that the date of the draw for the winning ticket was extended from 15-11-72 to 15-12-72. The suggestion made ;to him was that he was related to the plaintiff but he denied the same. He also denied that he was friendly with the plaintiff.

13. P. W. 2 is Sri D. Sudarsana Rao who was employed by the 3rd defendant who spoke to his selling the winning ticket to the plaintiff and as to how he wrote the plaintiff's address on the counterfoil fo the ticket and he stated that Ex. X-1 is the enlargement of the photo of the counterfoil of the ticket sold to the plaintiff and that the original contained his handwriting.

14. P. W. 3 is the plaintiff and he deposed as to how he purchased the ticket from P. W. 22 and as to how P. W. 2 noted his address on the counterfoil of the ticket viz., the original of Ex. X and X-2. He also spoke to the circumstances under which he lost the ticket and to the other correspondence between the parties.

15. The Assistant Director of Small Savings, Rajasthan was examined as D. W. 1 and he admitted in his cross-examination that no other person claimed the prize for the disputed winning ticket.

16. On the basis of the above evidence the court below rightly came to the conclusion that there was clinching documentary evidence to prove that it was the plaintiff who purchased the winning ticket in question. As already stated, the learned counsel for the appellants found it difficult to challenge the said finding of the lower court.

17. We shall first deal with the question of jurisdiction. The plaintiff has filed a specimen of the lottery ticket along with the plaint which has been marked as Ex. A-18. On the front side of the ticket the number of the draw, the date of the draw, the amount prepaid (RE. 1/-) the prize amounts and the printed signature of the Special Secretary to the Government. Finance Department, Rajasthan is shown. On the back side of the ticket in small print the details of the prize are mentioned and thereafter it is stated as follows :-

(1) Prizes will be awarded to prize winners only on surrendering the tickets to the Director, Small Savings and State Lotteries, Rajasthan, Jaipur within 30 days of the date of draw.

(2) The prize winning ticket numbers will be published in Rajasthan Rajpatra and leading newspapers.

(3) 10% of prize money will be deducted from the prize winning tickets of Rs 500/- and above for local cess and provisional services.

(4) The counterfoil holders/Agents in whose agency prize winning tickets of Rs. 500/- or above have been sold will be awarded bonus as under.

(5) In case of dispute the decision of the Director shall be final and binding.

(6) Legal jurisdiction of the lottery shall be at Jaipur only.

(7) The prize winning ticket shall not secure more than one prize provided that more than one prize will be admissible to a ticket in case of daily draw prizes. Ex. A-18 relates to a ticket for the 30th draw.

18. Reliance is placed by the appellants on clauses (6) of the printed matter and Clause 17 of Ex. B-1 notification which is to the same effect, for contending that Rajasthan courts alone have jurisdiction.

19. Learned counsel for the respondents-plaintiff contends firstly that this objection is not permissible unless the defendants 1, 2 can show failure of justice within the meaning of the said words in Sectoin 21, CPC.

20. Their Lordships of the Supreme Court in Pathumma v. Koopilan Kuntalan Kutty. : [1982]1SCR183 had occasion to deal with the provisions of Section 21(1) of the Civil P. C. Their Lordships referred to Section 21(1) C. P. C. which reads as follows :-

'21. (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.'

And then referred to the three conditions required by Section 21. As follows :-

'In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions as essential.

(1) The objection was taken in the court of first instance.

(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.

(3) There has been a consequent failure of justice. All these three conditions must co-exist.

Now in the present case conditions Nos. 1 and 2 are no doubt fully satisfied but then before the two appellate courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred.'

21. In the present case too, as in the case before the Supreme Court, conditions Nos. 1 and 2 are no doubt fully satisfied but no attempt has been made either in the lower court during the disposal of I. A. No. 23/76 or in this court to satisfy us as to how the difference in the place of suing has resulted in failure of justice.

22. In view of the authoritative pronouncement of the supreme Court that all the three 'conditions must co-exist', we are of the opinion that the appellants have not made any attempt to prove how there is any failure of justice within the meaning of the said expression in Section 21 of Civil P. C. On this ground alone the objection relating to jurisdiction is liable to be rejected.

23. Apart from the above aspect of the matter, the crucial question that has to be decided relates to the extent to which the plaintiff can be said to be bound by what is 'printed' on the reverese of the ticket.

24. Before we advert to the rulings of the High Courts which were cited before us, we would like to refer to some of the important facts fo this question.

25. There is a basis difference between cases where parties enter into a regular contract after due negotiation and cases where one party just hands over a ticket or receipt containing certain terms to the other party.

26. Lord Diplock in Schroeder Music Publishing Company Limited v. Macaulay, (1974) 3 All ER 616 at p. 624) observed:

'The ticket cases in the 19th century provided what are probably the first examples. The terms of this kind of standard form of contract have not been the subject of negotiation between ............ the parties to it, or approved by any organisation representing the interests of the weaker party. They have been dictated by that party whose bargaining power, either exercised alone or in conjunction with others providing similar goods or services, enables him to say; 'if you want these goods or services at all, these are the only terms on which they are available. Take it or leave it.'

Lord Denning M. R. in George Mitchell v. Finney Lock Seeds, ((1983) 1 All ER 108 at p. 112) observed:

'but, in view of modern developments, it is to be noticed that the conditions were not negotiated at all between any representative bodies. They were not negotiated by the National Farmer's Union.'

And ultimately at page 117 -

'The clause was not negotiated between persons of equal bargaining power. It was inserted by the seed merchants in their invoices without any negotiation with the farmers.'

And the clause was held not binding. As pointed out in Chitty on Contracts (Vol. I) (24th Ed. 1977) Page 313, paragraph 677:

'The document must be of a class which either the party receiving it knows, or which a reasonable man would expect, to contain contractual conditions. Thus a cheque book (Burnett v. West Minister Bank, (1966) 1 QB 742) a ticket for a deck chair (Chapelton v. Barry UDC (1940) 1 KB 532), a ticket handed to a person at a public bath house (Taylor v. Glasgow Corporation, (1952 SC 440)) and a parking ticket issued by an automatic machine (Thornton v. Shoe Lane Parking Lt. (1971) 2 QB 163) have been held to be cases, where it would be quite reasonable that the party receiving it should assume that the writing contained no condition and should put it in his pocket unread. (Parket v. South Eastern Rly. (1877) 2 CPD 416, 422).'

27. The House of Lords in Mc. Cutcheon v. David Mac Brayne Limited, (1964) 1 All ER 430) was dealing with a risk note in small print displayed outside and inside the defendants' office and also printed on a risk-note which was not signed by one Mr. Mc. Sporran. They gave him a receipt which stated that 'all goods were carried subject to the conditions set out in the notices'. It was held that there was no contractual document. Lord Devlin observed:

'This sort of document is not meant to be read, still less to be understood. Its signature is in truth about as significant as a handshake that marks the formal conclusion of a bargain.'

And again, referring to the ticket cases, stated;

'The question in these cases is whether or not the passenger has accepted the ticket as a contractual document. If he knows that it contains conditions of some sort, he must know that it is meant to be contractual.'

Lord Devlin pointed out that 'there was not one law for individuals and another for organisation that can issue printed documents' that the terms were unfair and unreasonable, that he had never voluntarily agreed to them, that it was impossible to read or understand them and that anyway, if he had tried to negotiate any change, the respondents in that case would not have listened to him; and then observed:-

'Now the boot is on the other foot.................. what is sauce for the goose is sauce for the gander. It will remain unpalatable sauce for both animals until the legislature, if the Courts cannot do it, intervenes to secure that when contracts are made in circumstances in which tehre is no scope for free negotiation of the terms they are made upon terms that are clear, fair and reasonable and settled independently as such'.

The modern trend is that proof of and opportunity for negotiation is a necessary condition for imposing the rigour of the terms on the weaker party.

28. The time at which the party's attention to these terms is drawn is of equal importance. In the last mentioned case in Mc. Cutcheon v. David Mac Brayne Ltd. ((1964) 1 All ER 430) the House of Lords held that the receipt was given only after the oral contract had been concluded and hence not binding. In Olley v. Marlborough Court Limited (1949-1 AIR LR 127) a husband and wife arrived at a hostel as guests and paid for a week's board and residence in advance. They went up to the bedroom allotted to them, and on one of its walls was a notice that the proprietors will not hold themselves responsible for articles lost or stolen unless handed to the manageress for safe custody. The wife then closed the self-locking door of the bed-room, went down stairs and hung the key on the board in the reception office. In her absence the key was wrongully taken by a third party, who opened the bedroom and stole her property. The defendants sought to incorporate the notice in the contract. But the Court of Appeal held that the contract was completed before the guests went up to their room and that no subsequent notice could affect their rights.

29. In Thornton v. Shoe Lane Parking Limited (1971) 2 QB 163 Lord Denning point out :

'The Customer is bound by these terms as long as they are sufficiently brought to his notice beforehand, but not otherwise........... The ticket is no more than a voucher or receipt for the ........ money that has been paid ............ on terms which have been offered and accepted before the ticket was issued ......... The Contract was then concluded, and it could not be altered by any words printed on the ticket itself', and

Megaw J., in the same case, observed :

'..............there must be some clear indication which would lead an ordinary sensible person to realise, at or before the time of making the contract, that a term of that sort......... was sought to be included.' If that was not done, it would amount to an effort on the part of the defendant to alter the terms of the contract by subsequently incorporating the printed terms of the ticket unilaterally. Burnett v. West Minister Bank, (1966) 1 QB 742.

30. From the aforesaid rulings it follows that unless the terms of the contract are arrived at after due negotiation, they cannot be held binding merely because a ticket is later issued containing the said terms. There must also be proof htat the terms were meant to be contractual. The said terms must have been brought to the notice of the contracting party at or before the time when the contract was entered into. If the printed terms on the ticket do not, as aforementioned, become part of the contract they cannot be enforced unilaterally, for otherwise, it will amount to an alteration of the terms of the original contract.

31. Bearing these principles in mind, let us examine the facts of the case. The plaintiff purchased the ticket from P. W. 2 who is the salesman of the Agent, P.W. 1 (the 3rd defendant). The material on the reverse of the ticket, already referred to, is in small print. There is nothing in the evidence of D. W. 1, the Assistant Director, Small Savings, Rajasthan or in the evidence of P. W. 1 or P. W. 2 saying that the printed mater on the reverse of the ticket is part of any negotiation. Nor is there any other contract signed between the parties. There is nothing in the evidence to show that the attention of the plaintiff was drawn to the said matter at or before the time when the plaintiff paid rupee one for purchasing the lottery ticket. There is therefore nothing to suggest that the plaintiff bound himself by what is printed on the backside of the lottery ticket.

32. The notification Ex. B-1 dated 12-12-1968 published in the Rajasthan Gazette describes inclause 5 (3) the printed matter on the reverse of the ticket as 'other particulars' and not as conditions of the contrat. There is equally no material produced in the case to show that the plaintiff knew beforehand that the terms and conditions specified in Ex. B-1 are to be deemed as incorporated in the contract.

33. Learned counsel for the appellants placed strong reliance on the statement in cross-examination of the plaintiff (P. W. 3) to the effect that the ticket he purchased also contained such rules and regulations .......as were contained on the reverse of Ex. A-18 and that he perused them. P. W. 3 also stated that he knew rules and regulations. However in re-examination, he stated that no copy of Ex. B-1 notification was supplied to him when he purchased the suit ticket.

34. We are of the opinion that there is nothing in the evidence of P. W. 1 (3rd defendant) or of his salesman, P. W. 2, or of the Assistant Director, Small Savings Rajasthan, D. W. 1, to say that the material printed on the back of the ticket or receipt in Ex. B-1 'at or before' the time when the contract was entered into. The evidence of the plaintiff as P. W. 3 is no doubt, that he perused the printed matter but the said perusal is not stated or admitted to be at or before the time when the contract was entered into with P. W. 2, P. W. 2, the salesman does not say that the plaintiff was made to read the terms on the reverse of the ticket at or about the time of the contract. It is therefore difficult to construe the statement of P. W. 3 as an admission that he read the printed matter on the reverse of the ticket before the contract was entered into and before the payment of the ticket money of Re. 1/-.

35. The time factor has been given great importance in the decided cases and it is difficult to make any presumption in favour of the defendants that the plaintiff perused the reverse side of the ticket before the plaintiff handed over the money to P. W. 2 and before he received the ticket, or that the defendants did all that was necessary for them to draw the plaintiff's attention to it before the contract was entered into. Denning, L. J. said in an earlier case :-

'Some clause which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.'

(Vide J. Spurling Limited v. Bradshaw (1956-2 All ER 121).

36. Therefore we are of the opinion that the evidence of the plaintiff as P. W. 3 cannot come to the aid of the defendants. The submission of the appellants' counsel on the basis of the plaintiff's evidence is therefore rejected.

37. We shall now advert to the cases relating to ouster of jurisdiction which have been cited before us by the learned counsel on either side.

38. Gopalrao Ekbote, J., (as he then was) in C. Satyanarayana v. L. Narasimham, : AIR1968AP330 was dealing with a letter written by the defendants in that case, on top of which the words 'subject to Madras jurisdiction' were printed. It was held that the said words could not be treated to be part of the contract unless agreed to by the plaintiff and the learned Judge distinguished the Division Bench case in Libra Mining Works v. Baldota Brothers, (AIR 1962 Andh Pra 452) as a case where the clause relating to ouster of jurisdiction was incorporated in a bilateral contract. Similarly, A. V. Krishna Rao, J., in G. P. Venktaraju v. Palukuri, : AIR1975AP32 , was dealing with a bill containing the words 'subject to Calcutta Jurisdiction' and the learned Judge ignored the said condition as not being one for which the plaintiff assented. The learned Judge also distinguished the Division Bench case above-mentioned on the basis that it related, to a bilateral contract. He also referred to M. B. T. & Company, Madras v. A. Narasimha Rao (1968-1 Andh WR 424) decided by Basi Reddy, J., who was dealing with a forwording note. The only question argued was whether a clause relating to ouster offended Section 28 of the Contract Act and Krishna Rao, J., distinguished the same as a case bearing only upon S. 28. In our opinion the views taken by Gopalarao Ekbote, J., (as he then was) and A. V. Krishna Rao, J., are correct, if we may say so with respect, and in fact the Division Bench in Libra Mining Works v. Baldota Brothers (supra) made a clear distinction between bilateral contracts and unilateral printed forms and held that in the case of the former, ouster Clauses were binding. The case in T. Anjaneyulu v. Sri Rama Krishna Textiles (1977-1 Andh W. R. 105) decided by Kuppuswami, J. (as he then was) related to a bill issued by the defendants and the ouster of jurisdiction was held to be not contrary to Section 28 of the Contract Act. The distinction between a bilateral contract and a bill was obviously not debated before the learned Judge. As the suit was not based on the bill but on a subsequent settlement of accounts made at Vijayawada it was held that still the Vijayawada Court had jurisdiction. Hence the said case is also clearly distinguishable. The learned counsel for the appellants relied upon E. I. D. Parry (India) Ltd. v. Savani Transports, (AIR 1980 Andh Pra 30) decided by Gangadhara Rao, J. There the ouster of jurisdiction clause was in a way-bill and the decision in G. P. Venkataraju v. Palukuri, : AIR1975AP32 was cited, but the learned Judge did not consider the said ruling. It was held that the clause ousting the jurisdiction was not opposed to Section 28 of the Contract Act. The distinction between a bilateral contract and one where the clause is simply printed in a way-bill was not debated before the learned Judge. Hence the said decision does not help the appellants. The view we have taken is also in accord with the view taken by a Division Bench of the Bombay High Court in Road Transport Corporation v. Kirloskar Brothers Limited, : AIR1981Bom299 .

39. We are therefore of the view that the clause on the reverse of the ticket or in Ex. B-1 is not part of the contract between the parties and hence .................... the plaintiff is not bound by the clause relating to ouster of jurisdiction and cannot be compelled to approach the Courts at Rajasthan alone. On this ground also, the objection relating to jurisdiction is liable to be rejected.

40. We then come to the second point regarding the non-production of the original ticket by the plaintiff. This again relates to the clause in small print on the reverse of the ticket and also to Clause 12 of the scheme contained in Ex. B-1 which provides that :-

'no prize money will be given if the prize winning ticket is not produced within the aforesaid period' (i.e. 30 days from the date of draw.)

41. Our discussion fohte case law on the first question is equally relevant on this point also and need not be repeated. There is no proof that the above clause which is contained on the reverse of the ticket or in Ex-1, is the result of a negotiated contract. The rulings both English and Indian are uniform and hold that if there is no such contract entered into by both parties, there must be proof that the terms which are printed on the reverse or otherwise notified elsewhere, have been brought to the notice of the customer or at least that all that could be reasonably done in that regard has been done by the defendants. The greater the rigour of the exclusion of liability, the more the need to bring such clauses to the plaintiff's knowledge, or to do all that could possibly be done in that direction. In any event, the said effort on the part of the defendant should have been made at or before the time the plaintiff entered into the contract. The subsequent knowledge of the plaintiff in this regard does not help - as stated in Olley's case (1949) 1 All ER 127 (supra) and Burnett's case (1966) 1 QB 742. (supra)

42. We have already held that the evidence in the case does not satisfy the above requirements. What we have stated under point No. 1 with reference to the plaintiff's evidence in his cross-examination, equally applies on this point also and need not be repeated, and cannot therefore help the appellant. Hence the non-production of the ticket cannot be put against the plaintiff. As already stated there is now no dispute that the plaintiff is the person who purchased the prize ticket in question and that nobody else had claimed under the lost ticket.

43. Therefore we are of the opinion that the sub Court at Visakhapatnam has jurisdiction to entertain the suit and that even though the plaintiff has not been able to produce the original ticket the defendants 1 and 2 cannot escape liability. The claim has admittedly been within 30 days of the draw and we agree with the Court below that the plaintiff must be taken to have duly followed the procedure envisaged for the making of the claim as prescribed.

44. The main contentions raised by the appellants before us are therefore rejected. The only other subsidiary contention that was raised related to the deduction of income-tax at source under Section 194-B of the Income-tax Act 1961. The learned counsel for the plaintiff fairly stated that the right of his client to he prize-amount will certainly be subject to the provisions of the Income-tax Act. As the lower Court has granted past interest from the date of notice to the date of suit in a sum of Rs. 9,750/- there can be no valid objection to the said decree for past interest, nor can there be any valid objection to the grant of further interest from date of suit.

45. Pending the appeal there was a direction to invest the money in a bank. The rate of interest payable by the Bank is slightly higher than the rate of interest of 6% P. A. awarded by us below. Hence the balance amount of such investment after compliance with the decree will be paid back to the 1st defendant. As the 1st defendant is likely to take time in paying the income-tax, which has to be determined by the concerned I.-T. O., we feel it just to direct the defendants 1 and 2 to make payment of Rs. 60,000/- to the plaintiff after our judgment within three months from today.

46. In the result, while confirming the findings on the lower Court is modified as stated below by allowing the appeal in part as stated below. In the place of the Decree passed by the lower court, the following decree shall issue :-

(1) that the plaintiff is entitled to the balance of the prize-amount and interest of a sum of Rs. 2,34,750/- (Rupees 2,25,000 plus Rs. 9,750/-) from defendants 1 and 2 after deducting the income tax payable on Rs. 2,25,000/- to the Income-tax Department, Government of India, on the above amount according to the provisions of the Income-tax Act and Rules in force on 15-12-1972, and the plaintiff shall be paid the balance after deduction of the said tax.

(2) the plaintiff shall be entitled to interest at 6% P. A. on the balance of Rs. 2,25,000/- after deducting the income-tax, from 27-8-1974 till date of payment.

(3) The Registrar is directed to encash the Fixed Deposit made under interlocutory orders of this Court and make a payment of Rs. 60,000/- to the plaintiff within three months from today towards part-satisfaction of the decree pending the determination of the amount deductible towards income-tax and reinvest the balance inclusive of interest, for an initial period of one year.

47. On proof of payment of income-tax the balance payable in terms of the decree as modified shall be paid to the plaintiff and the balance amount out of such deposit and interest shall be paid to the 1st defendant.

48. In view of the conduct of the plaintiff in losing the ticket we feel it just and reasonable to direct each party to bear his or its costs throughout. The defendants 1 and 2 shall pay the Court-fee due to the Government on the plaint.

49. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //