Rajasthan High Court - Jaipur
Nand Lal Mahesh Kumar And Anr. vs Beekalene Fabrics Ltd. on 10 January, 2006
Equivalent citations: II(2007)BC241, RLW2006(2)RAJ1056
Author: Jitendra Ray Goyal
Bench: Jitendra Ray Goyal
JUDGMENT Jitendra Ray Goyal, J.
1. The plaintiffs have preferred this appeal against the judgment and decree of the learned Additional District Judge No. 8, Jaipur City, Jaipur dated 12.9.2003 passed in a civil suit No. 61/1991 whereby he dismissed the plaintiff's suit for rendition of accounts and recovery of money on the ground of lack of jurisdiction.
2. Brief facts of the case are that plaintiffs filed a suit for rendition of accounts and recovery of money against the defendant with the averments that plaintiffs-firm are sister concerns and constituted by the members of one and the same family. Both the plaintiffs-firms worked at Jaipur as Commission Agents of the defendant-company and the amount relating to one plaintiff-firm was adjusted in the account of other plaintiff firm. It is also averred that before commencement of the agency business, Shri Rajan Sehgal, who was the director of the defendant company, came at Jaipur and settled the terms and conditions with the partners of the plaintiff-firms and thereafter the business transactions took place according to the agreed terms and conditions. The plaintiffs further averred that they called upon the defendant company by notice dated 18.7.1999 to settle the accounts and to make the payment of the amount due to plaintiffs at Jaipur but the defendant sent false reply to the notice. The plaintiffs sought a decree against the defendant company for Rs. 3,03,185/- with interest at the rate of 24% per annum from the date of institution of the suit till realization and the costs of the suit.
3. The defendant company filed the written statement. While admitting the fact that plaintiff-firms carried its agency business denied any amount due against the defendant company. It is also averred that terms and conditions for the agency work were settled at Mumbai, therefore, Jaipur Court has no jurisdiction to entertain the suit. One another objection was also raised about the maintainability of the suit on the ground that joint suit is not permissible by the two different firms.
4. On the basis of the pleadings of the parties following issues were framed:
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5. The plaintiffs, in support of their case examined Nand Lal (PW. 1) and Mahesh Kacholiya (PW. 2). On behalf of the defendant company Ravi Mehta (DW. 1) was examined.
6. After hearing both the parties, learned Court below decided only Issue No. 5 and dismissed the suit of the plaintiff on the ground of lack of jurisdiction.
7. I have heard learned Counsel appearing for the parties and perused the impugned judgment and decree and other material available on the record. The only question for consideration in this appeal is whether the words "subject to Mumbai jurisdiction" containing on the bills sent by the defendant company exclude the jurisdiction of the Jaipur Court to try the suit?
8. Learned Counsel for appellants-plaintiffs contended that parties have entered into an agreement at Jaipur where Sh. Rajan Sehgal, director of the defendant company, came and thereafter the defendant company started supplying the clothes on commission basis at Jaipur, therefore as per the provisions of Section 20(c) of the Code of Civil Procedure Jaipur Court has got the jurisdiction to entertain the suit. It is also contended that there was no contract in between the parties to the effect that in case of any dispute only the Mumbai Court shall have the jurisdiction. Merely on the basis of printed note, relating to jurisdiction on the bills issued by the defendant-company, it cannot be said that plaintiffs have consciously agreed to such a condition or by necessary implication that they agreed to settle their disputes for adjudication to Courts situated at Mumbai only. In support of this contention reliance has been placed on the judgments Patel Bros. v. Vadilal Kashidas Ltd. , C. Satyanarayana and Ors. v. Kanumarlapudi Lakshmi Narsimham , Grandhi Pitchaiah, Venkataraju and Co. v. Palukuri Jagannadham and Co., Calcutta and Ors. , United India Insurance Co. Ltd. v. Associated Transport Corporation Pvt. Ltd. and Anr. , Sponge Iron India Ltd. v. Andhra Steel Corporation Ltd., Bangalore and Thakral and Sons v. Indian Petro Chemicals Corporation Ltd. and Ors. reported in AIR 1994 Delhi 226. It is next contended by counsel for the appellants that the suit cannot be dismissed on the ground of lack of jurisdiction and in accordance to the provisions of Order 7 Rule 10 of the Code of Civil Procedure if the Court arrives at the conclusion that it has no jurisdiction to try the suit, then appropriate course was only to return the suit for presentation to appropriate Court. Reliance has been placed on the judgment R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. reported in AIR 1998 Supreme Court 2094.
9. Learned Counsel for the respondent-defendant supported the finding of the Trial Court and contended that parties entered into an agreement at Mumbai and in case of dispute only the jurisdiction is with the Court situated at Mumbai since by implication the plaintiffs have agreed to the printed condition written on the bills which were repeatedly sent by the defendant-respondent company.
10. I have considered the rival contentions. It is admitted factual position that there was no written agreement in between the parties in regard to the disputed agency agreement, however the defendant company admitted that the plaintiffs were their agents. Learned Trial Court dismissed the suit only on the ground that several bills containing the printed condition "subject to Mumbai jurisdiction" have been sent by the defendant company to the plaintiffs, therefore, the plaintiffs were very well aware with that condition that in case of any dispute, only the Mumbai Court shall have the jurisdiction. In my considered view, the printed condition on the bill cannot form the part of the agreement and not a single party can Impose any term of the contract upon the other party. Merely because the defendant company has printed the words "subject to Mumbai jurisdiction" on the bills, it cannot become a part of the contract unless It is expressly agreed to by the plaintiffs. Printed condition is merely a unilateral affirmation or the statement made by one of the parties as long it is not shown that the statement has been accepted by the either party as a term or condition of the agreement. In M/s. Patel Bros's. case (supra), this point was considered and it was held that mere printing of the words "subject to Bombay jurisdiction" in Exhibit P. 1 could not amount to a contract that both the parties agreed to have the Bombay as the venue for the settlement of disputes. The mere recital on the top of the bill could not be incorporated as a term of the contract. In Grandhi Pitchaiah, Venkataraju and Co.'s case (supra), the similar view has been taken that the words "Subject to Calcutta jurisdiction" in B's bill did not exclude jurisdiction of another Court having territorial jurisdiction to entertain the suit. In M/s. Thakral and Sons's case (supra), the same issue was considered and it was held that where the contract for supply of the goods was oral and was never reduced in writing; there was no written agreement between the parties to the effect that the suit concerning disputes arisen between them on the basis of the contract, should be instituted in one only out of two competent Courts, having territorial jurisdiction over the subject matter of that suit and the purchaser did not sign any order form with the supplier to accept that in case of dispute arisen between the parties, the jurisdiction will vest only in the Court specified in the order form, the supplier could not take advantage of one of the conditions of sale, specified on the back of the invoices. Thus, the suit could be filed by the purchaser in any of the Courts where cause of action arose.
11. Reverting back to the facts of this case, I find no other material except the printed note on the bill about the territorial jurisdiction, which, in my opinion, cannot exclude the jurisdiction of another Court having the territorial Jurisdiction to entertain and decide the suit.
12. In view of the entire discussion made hereinabove, the impugned judgment and decree deserve to be set aside. Therefore, the appeal is allowed and the suit is remitted back to the Trial Court to decide the same on all the issues in the light of the observations made hereinabove. The parties are directed to appear before the Trial Court on 18.2.2006. The registry is directed to send the record of the Trial Court within a period of two weeks from today.