1. The defendant in O.S. No. 111 of 1982 Sub-Court, Karur, is the petitioner in this civil revision petition. That suit was instituted by the respondent firm carrying on business in handloom goods at Karur, for the recovery of a sum of Rs. 9,122.64 on the ground that two consignments of cloth entrusted at Karur to the petitioner, a common carrier, on 20-1-1978 & 30-1-78 respectively for being carried to Calcutta and delivered to the consignee there, had not been so delivered, that the goods sent back had also sustained damage due to rain and flood waters, that despite the request made by the respondent demanding open delivery it was not given, that the demand made in the notice issued on 10-11-19791by the respondent to the petitioner claiming the payment of the value of the goods as damages sustained by the respondent on account of the gross negligence, carelessness, misconduct and irresponsible handling of the goods by petitioner, while the goods were in its custody was not complied with and therefore a decree for that amount should be passed in favour of the respondent.
2. In the written statement filed by the petitioner, inter alia, it was pleaded that though the goods were booked by the respondent on 20-1-1978 and 30-1-1978 at the branch office of the petitioner company at Karur yet, according to the clause, in the consignor's copy of the lorry receipts, in the event of disputes arising between the parties, the Courts at Bangalore only had jurisdiction to try the disputes or suits and as such, the jurisdiction of the Sub-Court at Karur in Tamil Nadu was excluded and therefore it did not have jurisdiction to entertain the suit. Yet another objection raised by the petitioner was that under S. 10 of the Carriers' Act, 1865, (III of 1865 hereinafter referred to as Act), the respondent ought to have given a notice in writing of the loss or injury to the goods to the petitioner prior to the institution of the suit within six months of the time when the loss or injury first came to the knowledge of the respondent and since such a notice was not given, the suit was not maintainable.
3. These two defences formed the subject matter of issues 2 and 3 in the suit and they were tried as preliminary issues on an application at the instance of the petitioner. Before the court below on behalf of the respondent, Exs.A.1 to A.7 were marked and the managing partner of the respondent firm was examined as P.W. 1, while on behalf of the petitioner, Exs. B.1 to B.5 were filed and the Manager of the Karur Branch of the petitioner, was examined as D.W.l. On a consideration of the evidence, the learned Subordinate Judge took the view that notwithstanding the fact that the petitioner had its head office at Bangalore, the delivery of the goods by the respondent to the petitioner for purposes of onward carriage, was at the branch office of the petitioner at Karur and in view of the Explanation to S. 20 of the Civil P.C., the petitioner should be deemed to have carried on business at Karur and, therefore, the Sub-Court at Karur, had jurisdiction to entertain the suit. Dealing with the question of the maintainability of the suit for want of notice under S. 10 of the Act the learned Subordinate Judge found that only when delivery is taken the sustaining of loss or injury can be known and in view of the admission of D.W.1 that the goods were again seen by the respondent at Karur after receipt of the same on a rebooking from Calcutta and the refusal of open delivery asked for by the respondent, the respondent can be fixed with knowledge of loss or injury for the first time only then and, therefore, the notice issued on 10-11-1979, being within six months from that date, was in order rendering the suit maintainable. So holding on issues 2 and 3, the learned Subordinate Judge posted the suit for trial on the other issues. It is the correctness of the finding on issues 2 and 3, rendered by the ' Court below that is challenged in this civil revision petition.
4. The first contention of the learned counsel for the petitioner is that the head office of the petitioner is located in Bangalore with a branch office at Karur and, therefore, the petitioner should be deemed to be carrying on business both in Bangalore and Karur and that though ordinarily, the Courts at Bangalore and Karur would have jurisdiction to entertain suits against the petitioner, there is an exclusion by an agreement of parties of the jurisdiction of one of such competent Courts viz. that at Karur and such an agreement would be valid and enforceable one, which ought to be recognised and given effect to. Reliance in this connection was placed by the learned counsel for the petitioner upon the decision of the Supreme Court in Globe Transport Corporation v. Triveni Engineering Works 1984 ACJ 465. Per contra, the learned counsel for the respondent submitted that though the head office of the petitioner may be located at Bangalore, by reason of the Explanation to S. 20, Civil P.C., the petitioner must be deemed to be carrying on business through its subordinate office only at Karur in respect of a cause of action which arose at that place and, therefore, there was no question of the Courts at Bangalore and Karur being both competent to entertain the suit so as to enable the parties to exclude the jurisdiction of one of two such competent Courts. The learned counsel for the respondent further drew attention to the nature of the action brought against the petitioner to contend that the suit is not strictly under the terms of a contract of affreightment but to enforce a statutory liability under the Act against the petitioner in its capacity as a common carrier to carry goods from place to place and, therefore, any stipulation with reference to the place for the enforcement of rights flowing from the provisions of the Act, cannot be regarded as an exercise in regulating contractual obligations and such a stipulation providing for the exclusion of the jurisdiction of all other Courts, except the one in Bangalore, can have no binding effect and in any case, cannot have any overriding effect over the provisions of S. 20, C.P.C. Strong reliance in this connection was placed by the learned Counsel upon the decision in Prakash Road Lines Pvt. Ltd., Bangalore-2 v. United India Insurance Co. Ltd., Madurai-1 : (1984)1MLJ167 .
5. Before embarking upon a consideration of this submission, it is necessary to notice a few undisputed- facts. The head office of the petitioner, which is a company is situate at Bangalore. It has al so a branch office at Karur. The respondent delivered goods to the petitioner at its branch office at Karur for onward carriage to Calcutta. The consignor's copy of the lorry receipts contained a clause that disputes arising between the parties were subject to Bangalore Courts jurisdiction only. In the aforesaid background of undisputed facts, the question arising for consideration is whether the Sub-Court, at Karur, had no diction to entertain the suit instituted by the respondent. It is seen from the plaint that the cause of action for the suit arose on 20-1-1978 and 30-1-1978, when the respondent entrusted the consignments in question to the branch office of the petitioner, at Karur. S. 20 of the Civil P.C. runs as under:
'20. Subject to the limitation aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction : -
a. the defendant or each of the defendants where there are more than one, at the time of commencement of the suits, actually and voluntarily resides, or carries on business, or personally works for gain; or
b. any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside, or carry on business or personally work for gain, as aforesaid, acquiesce in such institution or
c. the cause of action, wholly or in part, arises.
Explanation :- A corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office, at such place.'
Each of the Cls. (a)(b)(c) of S. 20, C.P.C. is disjunctive and makes provision for a distinct and different situation. In so far as Cl. (a) is concerned the requirement is that 'the defendant or if there are more defendants than one, each of the defendants, at the time of commencement of the suit must be actually and voluntarily residing or carrying on business or personally working for gain within the local limits of the jurisdiction of the Court before which the suit is laid, The expressions actually and voluntarily resides' or 'personally works for gain can have reference to natural persons only and not to legal entities like the petitioner. There is, therefore, no question of the petitioner actually or voluntarily residing or personally working for gain within the local limits of the jurisdiction of the Court at Karur. That was why in the plaint it was stated that the cause of action arose at Karur when the goods were entrusted to the branch office of the petitioner at Karur in the course of its carrying on business. The Explanation is important, as it, elucidates what is enacted in S. 20(a), C.P.C. and it has to be so read and construed as to clear up any ambiguity in the main section and cannot be applied independently of the provision which it is intended to explain. Bearing in mind the purpose and scope of the Explanation and analysing it, it is at once clear that it consists of two distinct parts with reference to the place, where the defendant carries on business. By the first part, a corporation like the petitioner, shall be deemed to carry on business at its sole or principal office. Under the second, it shall be deemed to carry on business, in respect of any cause of action arising at any place, where it has also a subordinate office, at such place. That the two parts of the Explanation are also intended to be disjunctive is made out by the use of the word or Reading S. 20(a), C.P.C. in the light of the Explanation, it is seen that a corporation shall be deemed to carry on business at its sole or principal office in India or with the reference to a cause of action, arising at a place, where it has a subordinate office, it shall be deemed to carry on business, at such a place. Applying this interpretation to the facts of the instant case, it follows that by reason of the application of the latter part of the Explanation, the petitioner is deemed to carry on business at Karur, the place where the subordinate office of the petitioner is located and where the cause of action had arisen by the entrustment of the goods by the respondent to the petitioner for carriage. Section 20(b), C.P.C. had no application to this case. That leaves only cl. (c) of S. 20, C.P.C. which provides that suit has to be instituted in a Court within the local limits of whose jurisdiction, the cause of action wholly or in part, arises. There is no dispute that the respondent delivered the goods to the petitioner at its branch office at Karur and therefore the cause of action arose within the local limits of the jurisdiction of the Sub-Court at Karur. Thus looked at from the point of view of the applicability of S. 20(a), C.P.C read with the latter part of the Explanation or S. 20(c), C.P.C, it is obvious that only the Sub Court at Karur had jurisdiction to entertain the suit and not any other. To put it differently, the Court at Bangalore where the head office of the petitioner is situate, did not have any jurisdiction at all under S. 20, C.P.C. Earlier, it has been seen how by the application of S. 20(a) read in the light of the latter part of the Explanation and S. 20(c), C.P.C, the suit should have been instituted only at Karur and not at any other place. Therefore, the agreement between the parties in this case, even if one such can be spelt out of the printed conditions on the reverse of the lorry receipts, was to confine the jurisdiction of the Courts at Bangalore to the disputes arising between them and to exclude the jurisdiction of the Court at Karur. As pointed out earlier, the Court at Bangalore did not have any jurisdiction at all with reference to S. 20, C.P.C. and by mere agreement between the parties, such jurisdiction cannot be conferred upon the Courts at Bangalore. It is indeed well settled that it is not open to the parties by agreement to invest the Court with jurisdiction, which it does not otherwise possess, but that if there are more Courts than one having jurisdiction to entertain a suit under S. 20. C.P.C., it is open to the parties to agree to have a particular forum to the exclusion of the other forums as regards the claims which one party may have against the other. Reference may be made in this connection to the decision of the Division Bench in Hoosen Kasam Dada (India) Ltd. v. Motflal Padampat Sugar Mills Co., Ltd., : AIR1954Mad845 and Hakarn Singh v. Gammon (India) Ltd, : 3SCR314 . In the first of these cases, on a review of the entire case law, it was held that where there are two competent Courts which can deal with the subject-matter of the litigation it is open to the parties to a contract to agree that the dispute should be adjudicated upon by one of the two competent Courts and that such an agreement does not run counter to S. 28 of the Contract Act and also not against public policy as there is no absolute restriction from enforcing the rights under or in respect of the contract by the usual legal proceedings in the ordinary course and as the restriction is only partial. The Supreme Court in the second case referred to above pointed out that it is not open to the parties by agreement to confer jurisdiction on a Court which does not possess such a jurisdiction under the provisions of the Code of Civil Procedure but that where two Courts or more have jurisdiction to try a suit or proceedings, an agreement between the parties to have such disputes tried in one of such Courts is not contrary to Public Policy. In the light of the aforesaid principles, it is manifestly clear in this case that there has been an attempt to confer jurisdiction on the court at Bangalore, which it did not otherwise have, having regard to the provisions of S. 20(a) and (c), Civil P.C. read with Explanation. Therefore, it is not open to the petitioner to object to the jurisdiction of the court at Karur which is the only court which has jurisdiction to try the suit by the application of S. 20(a) and the latter part of the Explanation or even S. 20(c), Civil P.C.
6. The matter may also be looked at from what is styled in some decisions as a new approach to this question. It comprises of the determination of the question whether the clause relating to the ouster of jurisdiction is intended to operate as an engine of oppression and as a means to defeat the ends of justice. It is pointed out that if it is considered to be oppressive, having regard to the surrounding circumstances including the stakes involved, such a stipulation can even be ignored. This is clearly pointed out by Thakkar, J. (as he then was) in M/s. Snehalkumar Sharabhai v Economic Transport Organisation : AIR1975Guj72 . The following observations are relevant and opposite:
'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 circum-stances 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 principle of this decision has been followed by Ismail, J. (as he then was) in Renown Biscuit Co. v. kamalanathan : AIR1980Mad28 Besides, it is pointed out in that decision that even assuming that the court, whose jurisdiction is excluded by the agreement of parties, entertains and disposes of the suit, it would at best be an irregular exercise of jurisdiction but the resultant decree will not be a nullity and that the court has a discretion not to interfere with that order, unless it be that failure of justice or irreparable injury to the party against whom it was made, is established.
7. In this case, the respondent is attempting to recover from the petitioner by way of damages not a very large amount and there is no justification for its being driven to Bangalore merely out of respect for the stipulation in the lorry receipts. Besides the cost of travelling, litigation expenses etc. will either exceed or even equal the claim and any prudent litigant would rather think of even abandoning the claim rather than incurring greater expenditure than the amount involved in order to obtain redress. The petitioner and the respondent are both at Karur and the evidence in support of their respective case is available at that place of their business. In such a situation to drive the respondent at Karur to the Court in distant Bangalore to establish its claim with all attendant difficulties and expenses, would be almost to compel it to abandon its claim against the petitioner. That would be an attempt to defeat the ends of justice and cannot be countenanced at all. This, in my view, would enable the Court not to give weight to and respect a stipulation of the kind as we have in this case.
8. The reliance placed on the decision in Globe Transport Corporation v. Triveni Engineering Works 1984 ACJ 465 by the learned counsel for the petitioner does not in any manner advance the case of the petitioner. On a consideration of the terms of the contract, in that case, it was found that the Courts at Allahabad and Jaipur had jurisdiction to entertain the suit and by an agreement of parties, the exclusive jurisdiction of court at Jaipur was accepted to the exclusion of the jurisdiction of the other court. Such is not the situation in this case, where, as pointed out earlier, it is only the court at Karur which had jurisdiction to entertain the suit and the parties had attempted to confer jurisdiction on the Court at Bangalore, while it had none and the decision, therefore, has no application in this case.
9. There is yet another standpoint from which the matter might be looked at. The petitioner and the respondent have been drawn to each other not by reason of the terms of any contract, but under the provisions of the Act and when an action is brought to enforce rights arising out of the breach of a statutory or common law obligation, it is rather difficult to accept that the parties regulated by means of a contract only the jurisdiction of Courts to try the disputes arising between the consignor and the carrier or the consignee can therefore hardly be treated as an exercise in contractual obligation. This view is supported by the decision in Prakash Road Lines Pvt. Ltd., Bangalore-2 v. United India Insurance Co. Ltd., Madurai-1 : (1984)1MLJ167 . It is further significant that the court dealt with a similar clause in relation to the petitioner in this civil revision petition and the court did not accept the objection raised by the petitioner that the court at Bangalore only had jurisdiction to entertain suits with reference to the disputes arising between the petitioner and the consignor or the consingee, as the case may be. Looked at from the aforesaid viewpoints, it is not possible to accept the first contention of the learned counsel for the petitioner.
10. The second and the last contention urged by the learned counsel for the petitioner is that the notice issued by the respondent on 10-11-1979 had not been given within six months from the date when the loss or injury first came to the knowledge of the respondent as provided under S. 10 of the Act and, therefore, suit instituted by the respondent is not maintainable. Reliance in this connection was placed by the learned counsel for the petitioner upon Ex. B. 3 dated 14-10-1978 to show that the respondent had been informed of the damage to the goods and the decision in East India Transport Agency v. Atlas Assurance Co. Ltd. 1978 JSCTL 126 was pressed into service, in support of the contention that the period of six months should be reckoned not from the time of knowledge of the assessed quantum of the loss or injury and the ascertained estimated money value thereof. On the other hand, the learned counsel for the respondent submitted that the loss or injury to the consignments first came to the' knowledge of the respondent only after they were brought to Karur back from Calcutta and that there is nothing to show that Ex. B. 3 had been received by the respondent and, therefore, the petitioner cannot claim that the respondent had knowledge of the loss or injury even six months prior to the issue of Ex. A. 1 on 10-11-1979. Support for this was also drawn from the evidence of the Managing partner of the petitioner examined as D.W.1to the effect that the goods were seen by the respondent only at the time of consignment and thereafter, only when it reached Karur, after re-booking. According to learned counsel, therefore, the respondent could not have had any knowledge of the loss or injury at an), anterior point of time and thus, the notice under Ex. A. 1 would be in accordance with S. 10 of the Act.
Ex. B.3 dated 14-10-1978 is a letter stated to have been sent by the petitioner to its branch at Karur. Therein, the petitioner has stated that the consignment covered by lorry receipt No. 661123 dated 30-1-1978.had been damaged due to flood and heavy rain and that being a natural calamity, the petitioner was unable to avoid the damage. The letter further requested the petitioner to do the needful to clear the goods and to take up the matter with the underwriters for further action. There is no reference in this letter to the first consignment admittedly handed over by the respondent to the petitioner on 20-1-1978. There is nothing to indicate that a copy of Ex. B.3 was sent to the respondent or that it had been received by the respondent. The evidence of D.W.1 is to the effect that the respondent saw the goods only at the time of handing over the consignment for carriage and thereafter only when the consignment again reached Karur after being rebooked from Calcutta. Ex. B.1 is a letter dated 28-4-1979 written by the respondent to the petitioner. The contents of this letter do not show that on the date on which it was written, the respondent had knowledge either about the loss or the injury to the consignments. The letter stated that since the consignees refused to take delivery of the goods, though- requested to do so by respondent, the consignment may be sent back. Ex. B.1 further proceeded to state that the goods may be rebooked and sent to Karur without demurrage. A reference to damage, due to floods has been made generally. This letter Ex. B.1 may at best indicate that the respondent had knowledge generally that the goods had been damaged due to floods. Ex. B. 2 dated 18-7-1979 is another letter written by the respondent to the petitioner after the arrival of the bales at the Karur Office of the petitioner. Open delivery of the consignment had been demanded. There is no dispute that the petitioner declined to give open delivery as requested by the respondent. In Exs.B.1 and B. 2 apart from merely and generally referring to damage to the consignment owing to rain, the respondent had not adverted to any loss or injury to the goods. For all that, despite the exposure to rain, the contents of the consignments might have remained in the same condition as before. What is relevant for purposes of S. 10 of the Act is knowledge of the loss or injury on the part: of the plaintiff. In this case, though it may be that the respondent was generally aware that there is nothing to indicate that till the refusal of the petitioner to give open delivery of the consignment, the respondent was aware of any loss or damage. It was only owing to the refusal of the petitioner to give open delivery that the respondent became aware of the injury, then, the petitioner would not have had any objection whatever to give open delivery as requested by the respondent. The evidence of D.W.1 is to the effect that the respondent saw the goods again only when they reached Karur after rebooking and there is therefore no question of the respondent having had any knowledge of the loss or injury before the arrival of the goods at Karur after having been rebooked from Calcutta. On the materials available, it is clear that the respondent had knowledge of the loss or injury to the goods only after the goods came back to Karur and not before, though it may be that the respondent was generally aware of the exposure of the goods consigned to rain, which might or might not have caused loss of the goods or ever injury to the goods. To hold that the period of six months specified in S. 10 of the Act commences to run even before the consignor became aware of the loss or injury with definite knowledge on his part of such loss or injury to the goods, would lead to strange and startling results.'
It is easy to conceive of cases where there is extensive damage to the external packing, but the goods inside are intact and in their original condition. Equally it may be that the external packing is quite in order, while the goods inside might have been either lost or injured. Therefore, whether the goods have been lost or injured can be known only when the consignor is enabled to see the goods again. To say that mere awareness of some damage, without knowledge of loss or injury, would suffice to clothe the plaintiff with knowledge relating to loss or injury, would be to defeat the very purpose for which S. 10 of the Act had been enacted. There may be a case, where the carrier, after becoming aware of the loss, denies access to the consignor to see the goods for a period of more than six months and thereby the consignor is prevented from obtaining knowledge of the loss or injury to the goods. To say that in such a situation, the carrier can press into service S. 10 of the Act would be only to enable the carrier to take advantage of its own wrong and escape its statutory liability as an insurer. A claim for damages consequent upon the carelessness or negligence on the part of the carrier to take care of the goods, can be made only when the consignor is given access to the goods and has been afforded an effective opportunity to examine the goods and becomes aware of the loss or injury, or damage which had occurred to them. However, that is not to be understood as saying that the plaintiff has such knowledge only when the quantum of the loss or injury is assessed and ascertained in terms of money value. The decision relied on by the learned counsel for the petitioner related to a-case of patent damage plainly visible at the time of delivery of goods. In that case, the tea-chests were delivered on 2-7-1969 in a damaged condition, but the notice under S. 10 of the Act was given on 31-1-1970 beyond six months from the date of delivery and after assessment of the loss by the plaintiff on 16-8-1969. While interpreting and applying S. 10 of the Act to the aforesaid facts, it was pointed out by the Calcutta High Court that the object of that Section is to give an opportunity to the carrier to redeem any loss or injury to the goods before an action for compensation for such loss or injury is brought and the assessment or estimation of the loss in money value may not always be a pre-requisite for redeeming the loss. In that view, it was held that if the loss or injury is patent and not latent, a person comes to know of the loss or injury as and when the goods are taken delivery of and the requirement of the law in such cases is that a notice within six months from the date of knowledge should be given. In other words, the securing of knowledge of loss or injury is totally independent of the assessment of the money value of the loss or injury this decision rendered in relation to a case of delivery of goods, where the damage was patent, can have no application to the instant case, where the goods were apparently in good condition and the open delivery asked for by the respondent, was declined to be given by the petitioner. It was only that refusal which really put the respondent upon notice or knowledge of injury or loss to the goods as the reason for the petitioner declining to give open delivery of the goods. Only on such refusal of the petitioner to give open delivery, the respondent had come to know that the goods had either been lost or injured and thereafter, the respondent had issued the notice under Ex. A.1 on 10-11-1979 claiming damages. There is no dispute that Ex. A.1 had been issued by the respondent to the petitioner within six months from the date of the arrival of the goods and the refusal of the petitioner to give open delivery as requested by the respondent. Ex. B. 2 shows that the goods had been received in July, 1979 and the notice under Ex. A.1 had been issued on 10-11-1979 well within six months from that time, Ex. A.1 would also otherwise be in accordance with S. 10 of the Act treating the date of refusal on the part of the petitioner to give open delivery to the respondent at the earliest or first point of time, when the loss or injury came to the knowledge of the respondent. Thereafter, there is no substance in the second contention raised by the petitioner. Consequently, the civil revision petition is dismissed with costs.
11. Revision dismissed.