Madhya Pradesh High Court
Sun Beverages (P) Ltd. And Anr. vs Vivek & Company And Ors. on 12 July, 2001
Equivalent citations: 2002(1)MPHT121
ORDER R.B. Dixit, J.
1. Feeling aggrieved by the order dated 9-3-2000 of Fourth Additional Judge to District Judge, Bhind in Civil Suit No. 4/98 where under a preliminary objection of the petitioners under Section 20 read with Order 7 Rule 11, CPC regarding jurisdiction of the Court to entertain the suit was overruled, the defendant-petitioners have come up in revision seeking redress praying for rejection of the plaint on the ground of jurisdiction.
2. The suit of plaintiff-respondent No. 1 is for recovery of an amount of Rs. 1,86,308/- on the ground that Rajendra Singh, husband of defendant No. 1, and father of rest of the defendants, on 9-1-1995 had agreed at Bhind to supply cold drinks on the condition that the spoiled material along with Wardana will be taken back. The payment was made through bank drafts payable at Agra where the cold drink factory of the defendants is situated. During this business transaction, 1302 bags of cold drinks were found spoiled which was returned along with Wardana but the price of the same was not adjusted with the result plaintiff is entitled to recover the amount of 1,86,308/-from the defendants.
3. The defendants without Filing the written statement moved an application under Section 20 read with Order 7 Rule 11, CPC for rejection of the plaint on the ground that the factory of cold drinks and its office is situated at Agra. Since the defendants resided and carrying on business from Agra and they have specifically mentioned in their invoices that any dispute is subject to Agra jurisdiction and further the payments were also made through drafts at Agra, the Court at Bhind had no jurisdiction to entertain the suit. The plaint is liable to be dismissed in absence of jurisdiction of the Court. The learned Trial Court vide the impugned order dismissed the application of the defendants on the ground that since no written statement has been filed in the case, the jurisdiction of the Court has to be decided on the basis of averments made in the plaint. Since according to the pleadings of the plaint, the business terms were settled at Bhind between the parties, the jurisdiction of the Court at Agra cannot be assumed merely on the ground that the payment was made at Agra. Since the payment was made through Bank drafts, it cannot be said that there was any settlement between the parties regarding payment at Agra. However, if it is found that the two Courts have jurisdiction to entertain a suit for the dispute of this nature, then the suit can be filed in the Court of any place having jurisdiction. The jurisdiction of the Court cannot be ousted on the basis of the invoices in absence of specific written agreement between the parties for ousting the jurisdiction of the Court.
4. No doubt under Section 20 of the CPC the suit can be brought where defendants reside or carry on business, however, at the same time, a suit can also be instituted at a place where cause of action arises. Since according to the averments of the plaint, a settlement to produce the cold drinks was arrived at Bhind and the delivery of the goods was also to be made at Bhind, in the circumstances, the duty was cast upon the defendants to make good the cost of spoiled cold drinks at Bhind. In the circumstances, on the basis of cause of action, the Court at Bhind/prima facie had jurisdiction to entertain the suit of the plaintiffs.
5. In so far as the printed invoices regarding supply of the goods are concerned, definitely contains a note printed on it "subject to Agra jurisdiction only", but what is disputed about it is the fact that this condition though printed on the invoice was not the subject-matter of any agreement between the parties. The learned counsel of the petitioners relies upon a decision of Allahabad High Court in case of M/s, Kanpur Sugar Supply Company Vs. Harsukh Lal, reported in AIR 1971 Allahabad 502, where in a suit against commission agent, words "subject to Rajkot jurisdiction only" appeared on all material documents including Hundis and bills passed between parties. It was observed that where in spite of clear direction as to the exclusive jurisdiction of Rajkot Courts, the party places a fresh order and accepts the condition. No other inference can be drawn except that both the parties had agreed that Rajkot Courts alone shall have the exclusive jurisdiction. However, in so far as present case is concerned, it is not on record to indicate that the condition of exclusive jurisdiction though printed on the invoice was in specific knowledge and agreed upon by the plaintiffs as a condition of the transaction.
6. The Hon'ble Supreme Court in case of A.B.C, Laminart P. Ltd. v. A.P. Agencies, Salem, reported in AIR 1989 SC 1239, observed that though an agreement to oust exclusively jurisdiction of the Court will be unlawful and void being against the public policy. However, such will be the result only, if it can be shown that the jurisdiction to which the parties have agreed to submit had nothing to do with the contract. If on the other hand, it is found that the jurisdiction agreed would also be a proper jurisdiction in the matter of the contract, it could not be said that it ousted the jurisdiction of the Court. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as being against public policy. In the present case, there is no evidence at this stage that the condition printed on the invoice regarding exclusive jurisdiction was agreed upon between the parties or duly acknowledged by the plaintiffs.
7. In a recent decision of this Court in case of M/s. Rajaram Maize Products v. M.P. Electricity Board, Jabalpur and others, reported in AIR 1999 MP 44, it has been pointed out that where an agreement was executed between plaintiff and the Electricity Board and it contained an ouster clause having clear and unambiguous language, which stipulated that all disputes and claims arising out of said contract are to be settled at place 'J' or triable 'only' before any Competent Court at place 'J', the word 'Only' in this case has to be given weightage, which on proper construction means that jurisdiction of all other Courts is excluded.
8. Taking into consideration the implications arising under the decision of Apex Court and this Court referred hereinabove, it is well settled that in order to give effect to the ouster clause in an agreement regarding jurisdiction, it has to be shown that the parties specifically agreed or acknowledged through agreement to exclude the jurisdiction of the Court envisaged under provision of Section 20 of the CPC. In facts and circumstances, the printing of words "subject to Agra jurisdiction only" on the invoices in itself is not the ground to indicate that it was a part of agreement between both the parties to oust the jurisdiction resulting from any disputes out of the business transaction as settled between the parties. The learned Trial Court in the circumstances has committed no error in assuming the jurisdiction of Court at Bhind.
9. Consequently, this revision fails and is dismissed. However, it is made clear that nothing in this order shall prevent the petitioners to raise the ground of jurisdiction in the written statement or to lead evidence on this point. The Court, shall in such a situation may decide the point of jurisdiction at any of the subsequent stage of the trial as permissible under law, without being influenced of the observations made hereinabove.
10. Civil Revision dismissed.