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Jaishree Luxury House, Kota and anr. Vs. Kathotia Sons, Registered Partnership Firm, Delhi - Court Judgment

LegalCrystal Citation
SubjectContract;Commercial
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 259 of 1979
Judge
Reported inAIR1980Raj42
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20; Contract Act, 1872 - Sections 28
AppellantJaishree Luxury House, Kota and anr.
RespondentKathotia Sons, Registered Partnership Firm, Delhi
Appellant Advocate K.C. Garg, Adv.
Respondent Advocate V.D. Mathur and; M.P. Mathur, Advs.
DispositionPetition dismissed
Cases ReferredIn Kanpur Sugar Supply Co. v. Harsukh Lal
Excerpt:
.....jurisdiction,'clearly gave a right to the purchasers only to institute legal proceedings in the delhi courts and so far as the plaintiff was concerned there was no restriction on him to institute a suit at any place where the cause of action arose or the defendant resided. in a case like the present where the claim is of rs. a new approach to this question deserves to be made for the ouster clause is calculated to operate as an engine of oppression and as a means to defeat the ends of justice for in a case like the present it would be oppressive to drive the plaintiff all the way to calcutta to recover a small sum of rs. 11 which relates about the disputes between the parties it is clearly mentioned that any legal proceeding in respect of any matters, claims or disputes on any account..........due on account of breach of any condition of the contract could only be settled and instituted in delhi courts which should alone have jurisdiction. the learned counsel has placed reliance on the conditions nos. 1, 2 and 11 printed on the back of the order form no. 7035 which are reproduced as under:--1. quotation: -- the offer made by firm shall be deemed to be a quotation only and shall not become binding on the firm as an agreement until orders are accepted in writing without alteration or change by an authorised officer of the firm in delhi and notice of acceptance sent to purchasers. 2. condition of sale: -- all orders booked by the firm are subject to these general condititons of sales and terms of business and all purchasers are deemed to have signified their acceptance of such.....
Judgment:
ORDER

N.M. Kasliwal, J.

1. This civil revision is directed against the order of the learned Additional District Judge No. 6, Jaipur City, Jaipur dated the 11th April, 1979.

2. The plaintiff-non-petitioner filed a suit for the recovery of a sum of Rs. 17,155.70 against the defendants-petitioners. The plaintiff is a registered partnership firm having its Head Office at Delhi and a Branch Office at Guda House, Rasta Haldiyan, Johari Bazar, Jaipur. The defendants No. 2 placed an order on behalf of defendant No. 1 M/s. Jaishree Luxury House, a registered partnership firm, situated at Kota for the purchase of 48 Electric fans at Jaipur at Branch Office of the plaintiff's firm vide Order No. 7035 dated 20 Dec., 1976. The fans were sent through Globe Transport Corporation, which were delivered to the defendants vide Order Form No. 098724 dated the 24th February, 1977 and vide Bill No. 1236 of the same date. According to the plaintiff the contract was made at Jaipur, as such the Court at Jaipur had jurisdiction to decide the suit. The defendants filed a written statement inter alia taking an objection that the Court at Jaipur had no jurisdiction to entertain the above suit and as such was liable to be dismissed. The learned trial Court on the pleadings of the parties framed five issues out of which Issue No. 2 was framed as under:--

Issue No. 2: Whether the Court had no jurisdiction to hear the suit Arguments were heard on this issue and the learned trial Court decided the same in favour of the plaintiff. Hence this revision-petition by the two defendants.

3. The defendants have not specifically denied the making of the contract at Jaipur and the learned counsel for the defendants has also admitted before this Court that a part of the cause of action having arisen at Jaipur, Court at Jaipur may have jurisdiction but the contention of the learned counsel is that according to the terms and conditions printed on the back of the goods Receipt No. 7035 dated the 20th Dec., 1976 all claims and sums due on account of breach of any condition of the contract could only be settled and instituted in Delhi Courts which should alone have jurisdiction. The learned counsel has placed reliance on the conditions Nos. 1, 2 and 11 printed on the back of the Order Form No. 7035 which are reproduced as under:--

1. Quotation: -- The offer made by firm shall be deemed to be a quotation only and shall not become binding on the firm as an agreement until orders are accepted in writing without alteration or change by an authorised officer of the firm in Delhi and notice of acceptance sent to purchasers.

2. Condition of Sale: -- All orders booked by the firm are subject to these General Condititons of sales and Terms of Business and all purchasers are deemed to have signified their acceptance of such conditions by placing the order.

11. Disputes: -- Customers' orders against this quotation are accepted in Delhi and all matters, claims and disputes arising in respect of these terms and conditions and/or out of or in connection with orders and acceptances are to be settled in Delhi and all claims and sums due on any account paid by the parties in Delhi. Any legal proceedings in respect of any matters, claims or disputes on any account or in any connection whatever shall be instituted by purchasers in the Delhi Courts which should alone have jurisdiction. Nothing contained in this terms rights as to arbitration as provided for later.The learned counsel for the petitioners has further laid great stress on the words 'subject to Delhi jurisdiction' printed on the front side of the bill No. 1236 dated 24-2-1977. According to the learned counsel these two documents are plaintiffs' own documents which are binding on him and according to the above terms and conditions mentioned on the bill and the Order Form no other Court except the Delhi Court has jurisdiction to hear and decide the present suit. Reliance in this connection has been placed on M/s. Singhal Transport v. M/s. Jesaram Jamumal, 1967 Raj LW 129. The learned counsel placed reliance on the following observations made in the above case:

'It has been held in a number of decisions that where more Courts than one have jurisdiction to try a suit there is nothing contrary to public policy in an agreement between the parties that disputes between them would be tried at one place out of them, in this connection the decision in National Petroleum Co. Ltd. v. Meghraj (AIR 1937 Nag 334) may be referred to. As was pointed out in Raghavayya v. Vasudevayya Chetty (AIR 1944 Mad 47) the relevant provision of the Contract Act which is directly applicable to such cases is contained in Section 28. I may also refer to the Full Bench decision of the Lahore High Court in Musa Ji Lukman Ji v. Durga Das (AIR 1946 Lah 57 (FB) in which it was held that an agreement between two parties that suits relating to disputes arising beween them would bs instituted only in one out of several competent Courts having territorial jurisdiction is not hit by Section 23. In Dwarka Rubber Works v. Chhotelal AIR 19&8 Madh B 120 it was held that such a contract is hit by Section 23 of the Contract Act. With all respect I am of the opinion that the case was not correctly decided.' Reliance is also placed on the following observations in Hakam Singh v. M/s. Gammon (India) Ltd. AIR 1971 SC 740:

'But where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.' A similar view has been taken in M/s, Hindustan Tiles Corporation v. Kisanlal Mataprasad Agrawal, AIR 1979 Bom 69 :

'Where more than one Court have jurisdiction to try suit, the parties can by agreement restrict a forum to try the suit.' Reliance is further placed on the following observations in Section Manuel Raj & Co. v, J. Manilal & Co., AIR 1963 Guj 148: 'When one of the parties to, a contract signs a printed form printed by the other party containing the words 'subject to the jurisdiction of a place Q' and sends the order form to the other party it must be assumed that that party agreed that Q is the place for the settlement of disputes. It is not open to a person who signs an order form of the opposite party containing the printed words to say that the printed words are not part of the contract. To take the view taken by the learned J udge of the Madras High Court would be to upset the commercial practice of India, and unless such a position is necessary in view of the wording of any particular Section, I am not prepared to take that view. I am not prepared to upset the commercial practice of India unless the law requires me to do so. There is nothing in the law to hold that the expression 'subject to jurisdiction of Q' printed at the top of 3 form may not bind M who signed the order form.'

4. On the other hand Mr. Mathur, learned counsel for the plaintiff-non-petitioner, has contended that as regards the conditions Nos. 1 & 2 in the Order Form there was nothing to confer jurisdiction in the Delhi Courts. As regards condition No. 11 it is submitted that the words 'any legal proceeding in respect of any matters, claims or disputes on any account or in any connection whatever shall be instituted by purchasers in the Delhi Courts which should alone have jurisdiction,' clearly gave a right to the purchasers only to institute legal proceedings in the Delhi Courts and so far as the plaintiff was concerned there was no restriction on him to institute a suit at any place where the cause of action arose or the defendant resided. As regards the words 'subject to Delhi jurisdiction' printed on the back of bill No. 1236 it is submitted that it was not a term or condition of the agreement as it is not signed by the defendants. The bill having not been signed by the defendants, any terms or condition printed on such bill could not be enforced by the plaintiff against the defendants and as such the defendants were also not entitled to enforce it against the plaintiff. It is also submitted that the mere use of the words 'subject to Delhi jurisdiction' did not oust the jurisdiction of other Courts. Reliance is placed on Grandhi PitchaiahVenkataraju & Co. v. Palukuri Jagan-nadham & Co., Calcutta, AIR 1975 Andhra Pra 32. It was held in the above case 'As a result of the discussion above I have no hesitation in holding that the Rajahmundry Court had territorial jurisdiction to entertain the suit and that Ex. A-1 containing the words at the top 'subject to Calcutta jurisdiction' do not amount to a contract between the parties which confers exclusive jurisdiction on Calcutta Courts to the exclusion of any other Court that may have jurisdiction by reason of Section 21 of the Code of Civil Procedure.' Reliance is also placed on the following observations in M/s. Snehalkumar Sarabhai v. M/s. Economic Transport Organisation, AIR 1975 Guj 72.

'While parties can lawfully enter into an agreement to restrict a dispute to a particular Court having jurisdiction, that stipulation though valid cannot take away the jurisdiction of the Court which admittedly has jurisdiction. The ouster clause can operate as estoppel against the parties to the contract. It cannot tie the hands of the Court and denude it of the power to do justice. It is no doubt true that ordinarily Courts would respect the agreement between the parties which is born out of the meeting of their minds and put of considerations of convenience. But the Courts are not obliged to do so in every case. In a case like the present where the claim is of Rs. 1,207.92 to oblige the plaintiff to go to Calcutta merely for the pleasure of respecting the stipulation embedded in the contract between the parties is to deny justice. A new approach to this question deserves to be made for the ouster clause is calculated to operate as an engine of oppression and as a means to defeat the ends of justice for in a case like the present it would be oppressive to drive the plaintiff all the way to Calcutta to recover a small sum of Rs. 1.208/-. The costs of travelling and litigation will far exceed the stakes involved, and even a rightful claimant would be obliged to abandon, his claim rather than incur greater expenditure than the sum involved in order to seek redress. In this back-drop the question assumes importance whether the stipulation to confine the jurisdiction in one of the Courts robs the excluded Court of its power to try the suit. Now such a stipulation may be legal and binding to parties. That however does not mean that it divests the Court of its jurisdiction. The plaintiff cannot insist that a Court other than the stipulated Court should try the suit. But the Court on its part is not bound by the stipulation. The stipulation can be ignored by the excluded Court which otherwise possesses jurisdiction if it is considered to be oppressive having regard to the surrounding circumstances including the stakes involved. More particularly so when the defendant firm has its office and is doing business within the local limits of the Court and it would be unjust to enforce the stipulation against the plaintiff whilst it would not cause any real prejudice to the other side. In such cases the Court will doubtless refuse to respect the contractual commitments made by the contesting parties. In such circumstances the Court should ignore the ouster clause and should exercise its jurisdiction. The lower Court was, therefore, in error in denying a decree to the petitioner plaintiff on the ground that the Court had no jurisdiction.'

5. I have carefully gone through the conditions printed on the back of the order form. As regards the conditions Nos. 1 and 2 they do not lay down any condition regarding the conferment of jurisdiction in Delhi Courts. As regards the condition No. 11 which relates about the disputes between the parties it is clearly mentioned that any legal proceeding in respect of any matters, claims or disputes on any account 01 in any connection whatever shall be instituted by purchasers in the Delhi Courts which should alone have jurisdiction. This condition only applies to legal proceedings instituted by purchasers i.e. the defendants in the present case and not by a suit instituted by the plaintiff. This condition, therefore, cannot confer any right on the defendants to raise an objection that the plaintiff had no right to institute a suit in Courts other than Delhi Courts. It ia not in dispute that the Courts at Jaipur have also jurisdiction to try this suit inasmuch as the order was placed at Jaipur and the goods were also supplied through Globe Transport Corporation at Jaipur for being delivered to the defendants at Kota and a part of cause of action thus having arisen at Jaipur, the Courts at Jaipur had jurisdiction to try the suit under Section 20 of the Civil P. C. The learned counsel for the petitioners has also not raised any contention, and rightly so, that the Courts at Jaipur had no jurisdiction, to try the suit. The question thus, remains to be determined is whether in tha facts and circumstances Delhi Courts alone had jurisdiction to try the suit. As already mentioned above, there is no such condition in the Order form exclusively ' giving a jurisdiction to the Delhi Courts only in case a suit ia filed by the plaintiff who is the supplier of goods in this case. Another document on which the learned counsel for the petitioners has placed reliance is Bill No. 1236 in which the words are printed as 'subject to Delhi jurisdiction'. No doubt this is a Bill issued by the plaintiff with regard to the goods which are subject-matter of the suit, but this Bill is not signed by the purchasers who are defendants in this case. This Bill does not contain the terms and conditions as are printed on the back of the Order Form. As it is not signed by the defendants it cannot be considered as containing any terms and conditions binding the parties as an agreement. To constitute an agreement it must be binding on both the parties. If the plaintiff on the basis of this Bill would have filed a suit in Delhi Courts, the defendants could have raised an objection that the Delhi Court had no jurisdiction as the Bill has not been signed by the defendants. Thus in my opinion unless this Bill was signed by the defendants and was accepted as a condition forming a part of the contract, the defendants were not entitled to raise any objection regarding jurisdiction on the basis of the words 'subject to Delhi jurisdiction' mentioned on it.

6. That apart there is yet another aspect of the case. There are no words 'only' used after the words 'subject to Delhi jurisdiction' on the Bill, and thus the mere use of the words 'subject to Delhi jurisdiction' cannot mean that only Delhi Courts have jurisdiction to hear and decide the suit and all other Courts which may have jurisdiction under Section 20 of the Civil P. C., to try the suit, are excluded from trying the suit. In Kanpur Sugar Supply Co. v. Harsukh Lal, AIR 1971 All 502 the learned single Judge distinguished the two decisions of Madras High Court where the words printed were 'subject to Bombay Jurisdiction.' After distinguishing the Madras cases it was held that as the words printed in the case were 'subject to Rajkot jurisdiction only', the word 'only' excluded the jurisdiction of other Courts. It was further held in the above case that a contract between the parties can be direct or implied. Where there is only one transaction between the parties, it can be said that by accepting the Hundi or the Bill, the receiver thereof was not agreeing to the conditions that only Rajkot Courts shall have exclusive jurisdiction over the dispute. He may accept the Bill and take delivery of the goods to avoid unnecessary disputes. But where in spite of the clear provisions as to the exclusive jurisdiction of Rajkot Court, the party places a fresh order and accepts the condition, no inference can be drawn except that both the parties had agreed that Rajkot Courts alone shall have the exclusive jurisdiction. In the case before me it has not been shown that there were many transactions between the parties apart from the present transaction, which may be having a condition subject to Delhi Courts. However, in the view taken by me that the Bill has not been signed by the defendants and that it does not contain the words 'only', the defendants cannot raise an objection that the Jaipur Courts have no jurisdiction to try the suit.

7. There cannot be any dispute in the proposition of law enunciated in the cases cited by the learned' counsel for the petitioners that parties cannot by agreement confer jurisdiction on Court not possessed by it under the Code of Civil Procedure, but agreement that one of the Courts having such jurisdiction alone shall try dispute is not contrary to public policy and does not contravene Section 28 of the Contract Act. In the present case admittedly the Jaipur Courts had jurisdiction to try the suit and in my view there was no agreement between the parties to oust the jurisdiction of Jaipur Courts. I am not however, in agreement to the proposition of law enunciated in M/s. Snehalkumar Sarabhai v. M/s, Economic Transport Organisation (supra) that an agreement between the parties to restrict dispute to particular Court was oppressive, and the Court can ignore such stipulation and entertain the suit. This view is contrary to theobservations made fay their Lordships of the Supreme Court in Hakam Singh v. M/s. Gammon (India) Ltd. (supra). In Section Manuel Raj & Co. v, J. Manilal & Co. (supra) the Order Form itself contains the words 'subject to Madras Jurisdiction' which was signed by the plaintiffs and sent to the defendants. In this case before me there is no such condition in the Order Form binding the plaintiff to institute a suit in the Delhi Courts only. As regards the Bill which contains the words 'subject to Delhi jurisdiction', as already pointed out above it is not signed by one of the parties. Raju, J. in the above Guja-rat case has distinguished AIR 1957 J & K 7 by making the following observations:

'In AIR 1957 J&K; 7, there was a receipt, which was signed by one of the parties, and the party who signed the receipt relied on the receipt to show that only the Cours of a particular place had jurisdiction. But the receipt which was relied on by him was not signed by the opposite party, but had been merely given to the opposite party. Therefore, that case does not apply to the facts of the present case.'

M/s. Singhal Transport v. M/s. Jesa-ram Jamumal (supra) does not help the petitioners inasmuch as there was a clear condition in that case that the Court in Udaipur City alone shall have jurisdiction in respect of claims and matters arising under the consignment order of the goods entrusted for transport and in the facts of that case it was held that the conditions were binding on the parties. As already held above the facts of the case before me are entirely different and the condition No. 11 relied on by the petitioners only binds the purchasers i.e. the defendants and not the plaintiff in this case.

8. In the result I find no force in this revision-petition and the same is dismissed. However, - in the facts and circumstances of the case the parties are left to bear their own costs.


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