Anil K. Sen, J.
1. In this revisional application, which is being heard as a contested one, a short point arises for our consideration as to whether a stipulation in a contract for carriage of goods to the effect that Bombay court alone would have jurisdiction in respect of claims with regard to goods entrusted for carriage would oust the iurisdiction. of the Alipore Court to entertain a suit for damages for non-delivery of such goods at the instance of an assignee of a consignment note, though such court has otherwise iurisdiction to entertain the suit.
2. According to the plaintiff/opposite party certain textile goods valued at Rs. 29,842.91 were delivered to the de-fondant company, a common carrier at their Pondicherry Office for carriage to Balanagar against 3 consignment notes. The defendant having failed to deliver the goods so entrusted to them, the plaintiff as the assignee of the consignment notes instituted Money Suit No. 20 of 1976. In the plaint, the claim was laid on 3 alternative grounds, namely. (1) damages on the ground of non-delivery of the goods so entrusted. (2) damages for breach of the contract for carriage and (3) damages for wrongful detention and/or conversion of such goods to their own use or purpose. The suit was instituted in the 1st Court of the learned Subordinate Judge at Alipore, 24 Par-ganas. It was claimed that Alipore court had jurisdiction to entertain the suit since the goods being deliverable at Batanagar within the jurisdiction of the said court, a part of the cause of action arose within the said jurisdiction.
3. The defendant in contesting the suit by filing a written statement raised an objection that the court of the learned Subordinate Judge cannot entertain the suit in view of Clause 17 of the contract for carriage printed on the reverse of the consignment note which provided that Bombay court alone will have jurisdiction in respect of all claims arising under the consignment or with regard to the goods entrusted for transport.
4. A preliminary issue on the point of jurisdiction of the Court at Alipore was raised and the learned Subordinate Judge by an order dated January 5, 1982. decided the issue in favour of the plaintiff and against the defendant. According to the learned Subordinate Judge when a part of the cause of action arose within the jurisdiction of his court, a term in a contract as incorporated in Clause 17 referred to hereinbefore would not oust the jurisdiction of his court to entertain or try such a suit. Feeling aggrieved, the defendant has now preferred the present revisional application challenging the said order.
5. The view taken by the learned Subordinate Judge particularly having regard to the reasons given therefor is apparently erroneous as the learned Judge had failed to consider the true effect of such a stipulation in a contract. The learned. Judge has failed to take note of the legal position that though the parties by mutual agreement cannot con-Eer jurisdiction upon a court which it does not possess nor can oust the jurisdiction of a court otherwise possessed by it, they can however, choose between them one out of several courts having concurrent jurisdiction. Such an agreement does not violate Section 28 of the Con-tract Act, nor is it opposed to public policy; it is. therefore, enforceable as between the parties to the agreement. There is uniformity of judicial opinion on the point and the principle is now so well settled that it needs no support with reference to any precedent. Therefore, if--as in the present case--both the courts at Bombay where lay the head office of the defendant company and the court of the learned Subordinate Judge at Alipore do have concurrent jurisdiction to entertain a suit of the present nature, the parties to the contract having chosen by mutual agreement the Bombay forum, the suit should be filed there and not at Alipore.
6. Mr. Mitter appearing on behalf of the plaintiff/opposite party without disputing the legal position referred to hereinbefore has raised art interesting point for our consideration. According to Mr. Mitter, the contract for carriage was not with the plaintiff nor by virtue of endorsement of the consignment note in their favour did the plaintiff become an assignee of the contract. By virtue of the endorsement of the consignment note the plaintiff became the assignee and, as such, the owner of the goods entrusted with the defendant and the claim of the plaintiff is based not on the privity of contract but on damages for non-delivery of the goods or the conversion thereof. Since the contract or the rights thereunder had not been assigned to the plaintiff, he is not bound by the agreement incorporated in Clause 17 between the defendant and the original consignor referred to hereinbefore. Reliance has been placed by Mr. Mitter on a Bench decision of this court in the case of Commissioners for the Port of Calcutta v. G.T. Corporation 68 CWN 410 and a decision of the Bombay High Court in the case of Union of India v. Ali Esaji Bohari, ILR 56 Bombay 600.
7. Mr. Sen appearing on behalf of the defendant/petitioner relied upon Section 1 of the Indian Bills of Lading Act. 1856, for repelling this contention of Mr. Mitter. Section 1 of that Act provides as follows:
'Rights under bills of lading to vest in consignee or endorsee. Every consignee of goods named in a Bill of lading and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself.'
Belying in particular on the last part of this provision, namely 'be subject to the same liabilities in respect, of such goods as if the contract contained in the bill of lading had been made with himself', it is contended by Mr. Sen that the plaintiff even as an endorsee of the consignment note is bound by all the covenants incorporated in the said contract of carriage as if the contract had been made with the endorsee.
8. We have carefully considered the rival contentions put forward before us. In our considered opinion, the contention of Mr. Sen is based upon a misapprehension. His contention proceeds on the basis that a consignment note stands on the same position as a bill of lading so that Section 1 of the Indian Bills of Lading Act, 1856, would be made applicable in case of endorsement of any and every document of title in respect of goods as enumerated in Section 2(4) of the Sale of Goods Act, as it is applicable to a bill of lading. Though the term 'bill of lading' has not been defined by the Indian Bills of Lading Act, 1856. yet each and every document of title in respect of goods is not a bill of lading nor can the same be equated with a bill of lading for all purposes. Such documents of title in respect of goods are assimilated to bills of lading for certain limited purposes provided for by the Sale of Goods Act and the Indian Contract Act, and not for other purposes. As pointed out by this court in the case of Commrs. for the Port of Calcutta v. G.T. Corporation, this position has been made clear by the Privy Council by the two decisions in the cases of Ramdas. Vithaldas Darbar v. S. Amirchand & Co., 43 Ind App 164: (AIR 1916 PC 7) and Official Assignee of Madras v. Mercantile Bank of India Ltd., 61 Ind App 416; (AIR 1934 PC 246). Such being the position in law, we would have found ample merit in the contention of Mr. Mitter only if we could agree with him that on the plaint the suit had been filed not on the contract but as the owner of goods by virtue of endorsement of the consignment note.
9. Reading the plaint as a whole, we are unable to accept the contention of Mr. Mitter that the suit is not based on the contract but is based solely on the ownership of goods by virtue of endorsement of the consignment note. Whatever the position of plaintiff in law, as we have indicated hereinbefore the plaintiff instituted the suit laying his claim on 3 alternative grounds. One of such grounds was damages for breach of the contract of carriage. Such a claim is laid necessarily as an, assignee of the contract itself. Though Mr. Mitter has drawn our attention to the written statement of the defendant/petitioner wherein the defendant had specifically denied existence of any privity of contract between the parties to the suit, such a pleading in our view is wholly irrelevant. In our view, the jurisdiction of the court must be determined on the plaint itself and on the facts set out therein: where as in the present case the plaintiff lays his alternative claim on breach of the contract of carriage, he cannot resile from the terms thereof which he accepts as binding between the parties. One of the terms of such a contract as have pointed out hereinbefore incorporated in Section 17 was with regard to choice of forum as between several courts of concurrent jurisdiction. Such a contract, therefore, binds him and he cannot institute a suit in Alipore Court contrary to the said agreement.
10. In the result, this application succeeds. The impugned order of the learned Subordinate Judge being set aside, we decide the preliminary issue in favour of the defendant and hold that the court of the learned Subordinate Judge at Alipore has no jurisdiction to entertain the suit. We, therefore, direct the learned Subordinate Judge to return the plaint to the plaintiff for being filed be-fore the appropriate court. There will be no order for costs in this application. Let the order be communicated to the court below.
11. Let operation of order remain stayed for six weeks.
S.N. Sanyal, J.
12. I agree.