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Kirloskar Bros. Ltd., Indore Vs. Engineering Machinery Mart, Narsinghpur, M.P. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 181 of 1978
Judge
Reported inAIR1982MP75
ActsEvidence Act, 1872 - Sections 114; General Clauses Act, 1897 - Sections 27; Code of Civil Procedure (CPC), 1908 - Sections 20
AppellantKirloskar Bros. Ltd., Indore
RespondentEngineering Machinery Mart, Narsinghpur, M.P.
Appellant AdvocateG.M. Chafekar and ;S.K. Jain, Advs.
Respondent AdvocateM.L. Agrawal, Adv.
DispositionAppeal dismissed
Cases ReferredRel.) See State of Orissa v. Sudhansu Sekhar Misra
Excerpt:
.....was reiterated and it was stated that unless the plaintiff agreed to defendant's condition of narsinghpur jurisdiction only the defendant would not accept the dealership. that the defendant has failed to prove that the agreement, copy of which is ex. d/7, was received by the plaintiff company and at the best what can be presumed is mere sending of some letter under a certificate of posting that even otherwise, such a presumption, if any, stands rebutted by the denial of sharad mahadeo khandekar (p. district judge in the opening para of his order, the cause of action having accrued within the jurisdiction of the indore courts as well as that of narsinghpur courts, the courts at both the places will have jurisdiction to try the suit. d/6, wherein it was made clear that the question of..........that the defendants were willing to act as dealer provided the above condition of narsinghpur courts jurisdiction only is accepted by the plaintiff and that if the above condition is acceptable to the plaintiff, then they can keep the defendant as a dealer and send goods to them. now, bhagwandas nema (dw. 1) in para 3 of his statement stated that he had sent back to indore two copies of the agreement after duly signing them together with a letter (carbon copy of which is ex. d/6) and in para 4 he has further stated that these documents were sent under a certificate of posting, ex. d/7. the address given on exhibit d/7 is as under:'m/s. kirloskar brother,15, maharani road, indore, m. p.' thus, it is proved by the statement of bhagwandas nema (dw. 1) that the dealership agreement in.....
Judgment:

H.G. Mishra, J.

1. This appeal is directed against the order of return of the plaint for presentation to the Court at Narsinghpur competent to entertain the same, passed on 31-8-1976, by the Second Addl. District Judge, Indore, in Civil Suit No. 19B of 1975.

2. No exhaustive statement of facts is necessary for the decision of this appeal. Suffice it to state that the plaintiff-appellant-herein brought the suit giving rise to this appeal on 18-3-1975, in the Court of the Second Additional District Judge, Indore, for recovery of Rs. 37,580/- on the allegations that the defendant-respondent herein was the authorised dealer of the plaintiff-company for Narsinghpur district, Madhya Pradesh. As such, the defendant was afforded the facility of purchasing goods on credit and the defendant had opened an account with the plaintiff-company. After giving adjustment to the amount paid by the defendant in the account up to 31-7-1974, from time to time for goods purchased on credit from the plaintiff company, an amount of Rs. 27,132.37 paise (Principal amount as per the ledger) is due from the defendant besides interest in an amount of Rs. 10,347.63 paise. Adding to this amount Rs. 100/- on account if notice charges the suit has been brought for recovery of Rs. 37,580/- besides future interest and costs. In the cause of action clause para 12 of the plaint inter alia it has been averred that the plaintiff had also made it a condition of accepting execution of the defendant's order for supply of goods that all disputes relating to the supply of goods and payments thereof would be subject to the jurisdiction of the Courts at Indore.

3. In answer to the suit the defendant denied the claim of the plaintiff and inter alia, in para 12 of the written statement raised an objection to the effect that the Courts at Indore have no jurisdiction to entertain the suit. The averments made by the plaintiff in para 12 of the plaint with regard to the Indore Courts having exclusive jurisdiction to entertain the suit, were denied and it was averred that in accordance with the terms of the initial agreement of dealership dated 1-8-1967, only the Courts at 'Kirloskarwadi' had jurisdiction. On the expiry of the abovesaid agreement a fresh agreement was entered into between the parties for dealership on 12-12-1969 by virtue of which the defendant had made an express condition that 'All disputes arising betweenthe parties would be subject to the jurisdiction of the Narsinghpur Courts only.' This condition was endorsed by defendant on the dealership agreement and was forwarded to the plaintiff along with a letter of defendant of the same date, wherein this condition was reiterated and it was stated that unless the plaintiff agreed to defendant's condition of Narsinghpur jurisdiction only the defendant would not accept the dealership. On receipt of the aforesaid letter and the dealership agreement the plaintiff never raised any objection, but on the contrary started supplying goods to the defendant under the dealership agreement. Thus the plaintiff accepted that the dispute arising out of the agreement shall be subject to the jurisdiction of Narsinghpur Courts only. The defendant has accordingly instituted Civil Suit No. 4A/75 in the Court of Additional District Judge, Narsinghpur foe declaration and injunction and another Suit No 50B/75 in the Court of Civil Judge, Narsinghpur for rendition of accounts. This agreement dated 12-12-1969 was signed and accepted by the defendant at Narsinghpur. Under this agreement the goods were to be supplied at Narsinghpur and the price was also payable at Narsinghpur. The Courts at Narsinghpur have thus an exclusive jurisdiction to try the suit. It is humbly submitted that this Hon'ble Court has no jurisdiction to entertain the suit and the plaint is liable to returned for presentation to the proper Court.

4. On the basis of the pleadings of the parties the trial Court framed issues, including issue No. 6 which reads as under:

'Whether there was agreement between the parties that all their disputes would be settled within the jurisdiction of Narsinghpur Court?' Its effect?

This issue was treated as a preliminary issue. Accordingly, the parties led evidence thereon. After recording evidence, by the impugned order, the trial Court has ordered return of the plaint on the finding that 'in view of the agreement between the parties Narsinghpur Court alone has jurisdiction to try this suit'. Aggrieved by this order the plaintiff has preferred this appeal.

5. In this appeal it was contended by Shri G. M. Chaphekar, learned counsel for the appellant that in view of the evidence oral and documentary, on record, it ought to have been held by the trial court that there was no agreement between the parties that Narsinghpur courts will have exclusive jurisdiction to entertain the suit; that the defendant has failed to prove that the agreement, copy of which is Ex. D/1, was sent on 12-12-1969, along with a covering letter, copy of whichis Ex. D/6, and that the same was received by the plaintiff-company; that there is no presumption that the letter said to have been posted under a certificate of posting, Ex. D/7, was received by the plaintiff company and at the best what can be presumed is mere sending of some letter under a certificate of posting that even otherwise, such a presumption, if any, stands rebutted by the denial of Sharad Mahadeo Khandekar (P. W. 1), Regional Manager, of the Indore Branch of the plaintiff-company and that since duration of the contract evidenced by Ex. D/l was for a period between 1-8-1969 to 31-7-1970 accordingly, the term 'Narsinghpur Courts will have exclusive jurisdiction' will not apply in respect of the dealings after the expiry of that period. Reliance is placed on the rain of B.L. Shrivastava v. M. M. L. Shridhar, 1974 MPLJ 512 : (AIR 1975 Madh Pra 21); Meghji Patel v. Kundanmal. (AIR 1968 Bom 387); and Rameshchand v. Bhopal Boitling Co., ((1976) 1 MPW Notes 107).

6. Shri M. L. Agrawal, learned counsel for the defendant-respondent argued in support of the impugned order and submitted that none of the contentions put forth on behalf of the appellant have any force and contended that the presumption arising in respect of a letter sent under a certificate of posting 13 not merely with regard to the factum of sending the same, but with regard to its reaching the addressee; that the factum of there being dealings between the parties after 12-12-1969 goes to show that the term 'Narsinghpur Courts will have exclusive jurisdiction' was accepted by the plaintiff and the relationship between the parties continued to be regulated by the agreement, Ex. D/l, even after the expiry of the period covered by the same. Reliance was placed on the ratio of Shambhudayal v. Aliya Bi (1963 Jab LJ 85); Harihar Banerji v. Ramshashi Roy (AIR 1918 PC 102); Mobarik Ali Ahmed v. State of Bombay (AIR 1957 SC 857); Puwada Venkateswara v. C. V. Ramana (AIR 1976 SC 869) and Har Charan Singh v. Shiv Rani (AIR 1981 SC 1284).

7. Having heard the learned' counsel for the parties, I have come to the conclusion that this appeal deserves to be dismissed.

8. In this case, admittedly, as stated by the learned Addl. District Judge in the opening para of his order, the cause of action having accrued within the jurisdiction of the Indore Courts as well as that of Narsinghpur Courts, the Courts at both the places will have jurisdiction to try the suit. This position was also not disputed before me. Now, according to Section 28 of the Contract Act, it is competent for the parties to enter into an agreement that one of the Courts having such jurisdiction alone shall try the disputes and that such an agreement is not contrary to public policy. The law on the point has been laid down by the Supreme Court in Hakam Singh v. Gammon (India) Ltd., (AIR 1971 SC 740) thus

'It is not open to the parties by agreementto confer by their agreement jurisdiction ona Court which it does not possess under theCode but where two Courts or more haveunder the Code Civil Procedure jurisdictionto try a suit or proceeding an agreement between the parties that the dispute betweenthem shall be tried in one of such Courts isnot contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.'

9. Now, in this case as stated above, the defendant has set up a plea to the effect that Narsinghpur Courts have exclusive jurisdiction to entertain the suit; whereas the plaintiff-appellant averred in the plaint para 12 that the Indore Courts have exclusive jurisdiction to try the suit, as stated above. The trial Court framed issue No. 6 on the point. The defendant was ordered to lead evidence, the burden of proving the issue being on him. It is not in dispute between the parties that the agreement duly signed by the Regional Manager, of the Indore Branch of the plaintiff-company, Sharad Mahadeo Khandekar (P. W. 1) was sent to the defendant for sending it back after duly signing the same, but the defendant claims to have inserted in the acceptance column the condition to the effect 'subject to the condition that all disputes whatsoever arising between us shall be subject to the jurisdiction of the Narsinghpur Courts only.' After inserting the aforesaid condition and signing the same, the agreement is said to have been sent by the defendant on 12-12-1969 to the Indore Branch of the plaintiff-company together with a letter, a copy of which is Ex. D/6, wherein it was made clear that the question of jurisdiction had been discussed with Shri Khandekar who was clearly told that the dealership shall be acceptable to the defendant only if the plaintiff agreed to all disputes between the parties being subject' to the jurisdiction of Narsinghpur Courts and that the plaintiff had agreed to this condition of the defendant. It was also stated in the said letter that insertion of the condition in the aforesaid dealership agreement to that effect was necessary and as such, the defendants were confirming acceptance of offer of the plaintiff subject tothe said condition. It was further stated that the defendants were willing to act as dealer provided the above condition of Narsinghpur Courts jurisdiction only is accepted by the plaintiff and that if the above condition is acceptable to the plaintiff, then they can keep the defendant as a dealer and send goods to them. Now, Bhagwandas Nema (DW. 1) in para 3 of his statement stated that he had sent back to Indore two copies of the agreement after duly signing them together with a letter (carbon copy of which is Ex. D/6) and in para 4 he has further stated that these documents were sent under a certificate of posting, Ex. D/7. The address given on Exhibit D/7 is as under:

'M/s. Kirloskar Brother,

15, Maharani Road, Indore, M. P.'

Thus, it is proved by the statement of Bhagwandas Nema (DW. 1) that the dealership agreement in duplicate was sent along with the said letter to the Indore Branch of the plaintiff-company. There is no dispute between the parties about the correctness of the aforesaid address. This is the very address given in the plaint of the Regional Office of the plaintiff-company.

10. Now, the question which arises is as to the nature and extent of the presumption which arises with regard to a letter so posted under a certificate of posting. In this respect, Shri Chaphekar was vehement in his reliance on the ratio of B. L. Shrivastava's case (AIR 1975 Madh Pra 21) (supra), wherein it has been held that 'the certificate of posting may give rise to the presumption that the letters were posted, but no presumption can be drawn that they were received by the addressee.' While making the aforesaid observations the cases of Shambhudayal (1963 Jab LJ 805) (supra); Harihar Banerji (AIR 1918 PC 102) (supra) and Mobarik Ali Ahmed, (AIR 1957 SC 857) (supra) do not appear to have been brought to the notice of this Court. In the case of Harihar Banerji (supra), their Lordships of the Privy Council have laid down the law regarding presumption of letters sent by post and/or by a registered post, thus:

'If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted hut strengthened by the fact that a receipt for the letter is produced signed on behalf ofthe addressee by some person other than the addressee himself.'

In the case of Mobarik Ali Ahmed (supra) the Supreme Court has made the following observations :

'The main contention in respect of these letters is that there is no proof that they were received by the appellant at Karachi. It is contended that evidence given by either Jasa-walla or the complainant that the originals were written and posted is not relevant to show that the same have been received. It is urged that the proof of mere posting of a letter is not presumptive evidence of the receipt thereof by the addressee unless there is also proof that the original has not been returned from the Dead Letter Officer.

Illustration (b) to Section 16 of the Indian Evidence Act, 1872 is relied on for the purpose and it is urged that a combination of the two facts is required to raise such a presumption. We are quite clear that the illustration only means that each one of these facts is relevant. It cannot be read as indicating that without a combination of these facts no presumption can arise. Indeed that section with the illustrations thereto has nothing to do with presumptions but only with relevance. Some cases relating to this have been cited before us. We have considered the same but it is unnecessary to deal with them.'

As held by the Privy Council in Harihar Banerji's case (AIR 1918 PC 102) (supra) and as held by the Supreme Court in the case of Mobarik Ali Ahmad, (AIR 1957 SC 857) (supra), on proof of the facts that a letter properly containing the particular document is proved to have been put into the post office, it is presumed that the letter sent through the post office reached the addressee. This presumption is not confined to the presumption of that letter being posted merely, but extends, to its receipt by the addressee at its destination and at the proper time according to the regular course of business of the post office. Earlier, a Division Bench of this Court in Shambhudayal's case, (1963 Jab LJ 85) (supra) had ruled on the point thus:

'It is well sealed that unless contrary is established by reliable evidence, normal presumption is that a communication properly addressed and posted must have reached the addressee '

11. This being the position of law as settled by the decisions of the Privy Council and the Supreme Court, it has to be regarded that the observations made by the Division Bench of this Court while deciding the case of B. L. Shrivastava, (AIR 1975 Madh Pra 21) (supra), were not intended to laydown the law of universal application and the authority relied on by Shri Chaphekar has to be regarded as confined to the decision of that case. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it: (Quinn v. Leathern. (1901) AC 495, Rel.) See State of Orissa v. Sudhansu Sekhar Misra, (AIR 1968 SC 647). Moreover, this Court cannot be regarded to have proceeded contrary to the law laid down by the Privy Council and the Supreme Court governing the point. If it was intended in the case of B. L. Shrivastava to lay down the law regarding presumption touching the question, with due deference and all respect at my command I may venture to state that the case relied on does not correctly lay down the law on the point Moreover, in the case of Har Charan Singh, (AIR 1981 SC 1284) (supra) the law on the point has been laid down thus :

'Section 27 of the General Clauses Act, 1897 deals with the topic -- 'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the fetter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is, obvious that when the section raised the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the documents sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumption both under Section 27 of the General Clauses Act as welt as under Section 114 of the Evidence Act is rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept, it is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act,'

12. In view of the aforesaid discussion, it cannot now be successfully contended that even when a letter is sent by post by pre-paying and properly addressing it, the presumption (does not?) extends to the receipt thereof by the addressee. In view of the law laid down in the case of Har Charan Singh (AIR 1981 SC 1284) (supra), the observations made in B. L. Shrivastava's case (AIR 1975 Madh Pra 21) (supra) cannot be regarded any longer good law.

13. Now, as stated by Bhagwandas (DW. 1), he had posted under certificate ofposting the dealership agreement in duplicate after signing them along with the original of the letter, Ex. D/6, under a certificate of posting, Ex. D/7. This letter is properly addressed and prepaid. Accordingly, it will be presumed that it had reached the addressee at its destination and at proper time according to the regular course of business of the post office. The lower Court appears to have rightly held so.

14. The aforesaid presumption is of course is rebuttable presumption. Accordingly, what is to be examined now is whether the plaintiff-appellant has succeeded in effectively rebutting the same. Sharad Mahadeo Khandekar (PW 1) has been examined by the plaintiff-appellant for the purpose. He does not state that the address given on the certificate of posting (Ex. D/7) is incorrect. He also does not state that the correspondence received by the Regional Officer of the plaintiff-company at Indore is invariably received by him or placed before him. In Para 20 of his deposition he admits that no record is kept of the documents received under ordinary post and further explains this statement by saying that they are not entered in the Inward-register. The trial Court has after evaluating his statement as a whole treated it as unreliable. Thus, there is no effective rebuttal of the aforesaid presumption. Reliance by Shri Chaphekar on the ratio of Rameshchand's case (1976-1 MPW Notes 107) (supra) and the case of Meghji Patel (AIR 1968 Bom 387) (supra) is of no avail as the question whether in a given case the presumption stands rebutted or not, varies from facts to facts of each case. In the case of Puwada Venkateswara Rao, (AIR 1976 SC 869) (supra) it has been held that 'a denial of service by a party may be found to be incorrect from its own admission or conduct' (AIR 1968 Bom 387 and (1948) 52 Cal WN 659, considered).

15. Having regard to the facts and circumstances of the case as found by the trial Court and as discussed above, it has to be held that the presumption of receipt of dealership agreement along with the letter claimed to have been sent by the defendant on 12-12-1969 has not been rebutted in this case

16. In the statement of Bhagwandas Nema (DW. 1) in para 14 it has come that the plaintiff-company began to send the defendant goods according to the agreement. This fact further goes to strengthen the presumption. Thus, the presumption stands corroborated by the factum of the dealings on the basis of the agreement in which the condition in question was inserted by the defendant and which was sent with a specific letter to the effect that unless the condition regarding NarsinghpurCourts having exclusive jurisdiction, was accepted, the offer made by the plaintiff will not be accepted by the defendant. So far as the reliance placed by Shri Chaphekar on reminders (Ex. D/2, dated 29-10-1969 and 26-9-1969, Ex. D/3) sent on behalf of the plaintiff-company to the defendant goes it does not improve the case of the plaintiff. It rather goes against them, inasmuch as absence of any reminder after 12-12-1969 by the plaintiff-company to the defendant goes to show that the agreement claimed to have been sent by the defendant must have been received by the Regional Office of the plaintiff-company, that too subject to the condition inserted by the defendant. Shri Chaphekar also tried to take help of the agreement dated 1-8-1967 (Ex. P-11). In this agreement no doubt there is a term regarding Kirloskarwadi Civil and Magisterial Court having exclusive jurisdiction to entertain all disputes between the parties (See term No. 16). However, reliance on the said term contained in Ex. P/11, cannot be regarded to be beneficial to the plaintiff for present purposes, inasmuch as even according to the case of the plaintiff there appears to have been made a departure on the point inasmuch as in the original agreement sent to the defendant there was no such term. It will not be out of place to state here that in the plaint the plaintiff has set out a plea that Indore Courts alone will have jurisdiction to entertain the suit, but this plea has remained unsubstantiated due to paucity of evidence on the point. The evidence on the point could have been very much led by the plaintiff in rebuttal in issue No. 6, quoted above. In this view of the matter, the main contention advanced on behalf of the plaintiff-appellant to the effect that the aforesaid presumption stands rebutted, does not merit acceptance.

17. This brings me to the last contention advanced on behalf of the plaintiff-appellant. It is true that the terms contained in the dealership agreement were for a period of one year ending on 31-7-1970. However, the dealings between the parties undisputedly continued thereafter. The plaintiff is laconically silent about the term subject to which the dealings between the parties were so continued. Accordingly, it will be regarded that the relationship of the parties continued to be governed by the terms incorporated in the dealership agreement, one of which has been filed as Ex. D/l, by the defendant in the case. Accordingly, as held by the trial Court all the terms, including the term regarding exclusive jurisdiction being of the NarsinghpurCourts continued to regulate the dealings between the parties and all the dealings in respect of which the suit giving rise to this appeal has been brought were thus regulated by them.

18. For the reasons stated above and for other reasoning employed by the learned Addl. District Judge, which is not shown to be vitiated by any mistake of law, misreading of evidence or in any way perverse or to have been arrived at by ignoring material evidence either, the impugned order of return of the plaint deserves to be maintained and is hereby affirmed.

19. Accordingly, in accordance with the discussion aforesaid all challenges to the impugned order fail and with them fails the appeal. As such, this appeal is dismissed with costs. Counsel's fee shall be as per the Schedule, if certified.


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