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Savani Transport Pvt. Ltd., Bombay Vs. Chinnaswami Mudaliar and Co. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2315 of 1976
Judge
Reported inAIR1979Mad21
ActsIndian Contract Act - Sections 28
AppellantSavani Transport Pvt. Ltd., Bombay
RespondentChinnaswami Mudaliar and Co.
Cases ReferredNanak Chand Shadurain v. Tinnelveli
Excerpt:
- - observed- where there are two competent courts, which cab deal with the subject matter of the litigation, it is open to the parties to a contract to agree that disputes in respect thereof shall be adjudicated upon by one of the two competent courts and such an agreement is perfectly legal and not contrary to s......elaborate consideration of the scope and impact of this clause on the question of jurisdiction of civil courts, dr. rajamannar c. j. observed-'where there are two competent courts, which cab deal with the subject matter of the litigation, it is open to the parties to a contract to agree that disputes in respect thereof shall be adjudicated upon by one of the two competent courts and such an agreement is perfectly legal and not contrary to s. 28 of the indian contract act.'authorities can be multiplied. in fact, following this decision another bench of this court in m/s. nanak chand shadurain v. tinnelveli-tuticorin electric supply co. ltd., : air1975mad103 , held that, if a clear and unambiguous contract is forged as between two parties touching upon the competency of the court to try.....
Judgment:
ORDER

1. The petitioner-defendant is admittedly a firm carrying on business in Bombay. The respondent-firm entrusted textile goods to the defendant-carriers, and such entrustment is evidenced by Exs. A.1 and A.2. The respondent claimed that the goods, whose value is about Rs. 4464-50, were transported belatedly by the petitioner which occasioned loss of the goods, and therefore, he instituted the present action against the petitioner for recovery of the values of such textile goods handed over to the petitioner for carriage. The petitioner pleaded, inter alia, that the goods were lost due to fire in transit and contended particularly that the court at Erode did not have jurisdiction to entertain the suit or try it in view of the specific clause in the contract of affreightment as disclosed in Exs. A.1 and A.2. The material clause, which is Cl. 17 therein runs as follows-

'The contract shall be deemed to have been entered into and made with the administration and head office of the company at Bombay. It is, therefore, expressly agreed that the courts in Bombay alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport.'

Based on this specific clause, touching upon the exclusion of the jurisdiction of the courts in the State of Tamil Nadu, the contention of the petitioner-defendant was that the civil court at Erode did not have jurisdiction to entertain the suit. The learned District Munsiff was of the view that, in the absence of any evidence that respondent-plaintiff was aware that the contract contained such a clause under which he submitted to the jurisdiction of the Bombay Court, it could not be said that the court had no jurisdiction to try the suit. He therefore held on the preliminary issue of jurisdiction against the petitioner-defendant. Hence this civil revision petition.

2. It is unnecessary to set out in detail the law touching on the issue in question, except to refer to a Bench decision of this court in Hoosen Kasam, Dada (India) Ltd., v. Motilal Padampat Sugar Mills Co. Ltd., : AIR1954Mad845 . That was a case where the defendant was a limited company situate in the State of Bihar with its registered office at Kanpur. The plaintiffs were dealers in sugar carrying on business in Madras. The plaintiff placed orders with the defendant for certain bags of sugar. The contract form relating to the said contract purported to be offers made by the plaintiffs for the purchase of sugar and it was stated that the plaintiffs would agree to sign formal contracts on receipt of the acceptance of the offer. Before instituting the suit the plaintiffs sought for leave to sue and obtained an ex parte order granting such leave to sue the defendant at Madras. The defendant's objection was that leave to sue ought not to have been granted and that the leave should be revoked for want of jurisdiction and on other grounds. The application for revocation of leave was founded on the following clause which was the subject-matter of the contract between the parties-

'All disputes in respect of this contract shall be settled by arbitration failing which shall be settled in the court of the seller's jurisdiction where this contract shall be deemed to have been entered into.'

After an elaborate consideration of the scope and impact of this clause on the question of jurisdiction of civil courts, Dr. Rajamannar C. J. observed-

'Where there are two competent courts, which cab deal with the subject matter of the litigation, it is open to the parties to a contract to agree that disputes in respect thereof shall be adjudicated upon by one of the two competent courts and such an agreement is perfectly legal and not contrary to S. 28 of the Indian Contract Act.'

Authorities can be multiplied. In fact, following this decision another Bench of this court in M/s. Nanak Chand Shadurain v. Tinnelveli-Tuticorin Electric Supply Co. Ltd., : AIR1975Mad103 , held that, if a clear and unambiguous contract is forged as between two parties touching upon the competency of the court to try an action and showing the choice of the contracting parties as between the two competent courts, then such a contract is enforceable in the eye of law. The case before us presents a similar problem. Learned counsel for the respondent would contend that it cannot be said that there is ample material on record to assume that both the parties applied their mind when they accepted the lorry receipt and the conditions printed on the back of it as forming part and parcel of the contract of affreightment. This contention cannot be accepted for the simple reason that the respondent himself came to court on the basis of the very lorry receipts Exs. A.1 and A. 2 Cl. 17 is part and parcel of the contract. The respondent-plaintiff cannot be allowed to rely upon one portion of the contract for the purpose of obtaining relief in a civil court and avoid an other portion of the same contract, because it is inconvenient for him to rely on it.

Viewing the contract as a whole, and the contract itself being a contract of affreightment, it is but essential that the parties should be aware or make themselves aware of the terms and conditions under which goods entrusted by one to the carrier are carried and the reciprocal rights and obligations of the person entrusting the goods and the person carrying the goods under the contract of carriage. A reasonable presumption can therefore be drawn in the instant case that the parties were aware of the conditions under which the goods were carried from Erode to Poona within the jurisdiction of the Bombay courts. If therefore it can be presumed in the instant case that the parties were aware that there were two competent courts in either of which they can claim relief if there is a violation of any one or more of the conditions of the contract agreed upon, then such a choice voluntarily exercised by them is an acceptable one, and an enforceable one too, and they cannot wriggle out of it for convenience at different stages for different purposes.

The respondent is suing on a free contract Naturally therefore the defendant can rely upon it and plead that one of the terms of the contract between them specifically excludes the jurisdiction of the courts in the State of Tamil Nadu and that by consent the parties have agreed that any dispute between them should be adjudicated upon only by the courts in Bombay. In fact, this is the ratio of the decision already cited. I agree with the learned counsel for the petitioner-defendant that the finding of the court below, that the civil court at Erode has jurisdiction to entertain the suit instituted by the respondent-plaintiff, is against law and without jurisdiction. The civil revision petition is therefore allowed and the order of the court below is set aside. The respondent-plaintiff is permitted to take back the plaint and present it in the proper court in accordance with the contract between the parties. Time for re-presentation three months.

3. There will be no order as to costs.

4. Petition allowed.


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