Madhya Pradesh High Court
Rajaram Maize Products vs M.P. Electricity Board, Jabalpur And ... on 6 May, 1997
Equivalent citations: AIR1999MP44, AIR 1999 MADHYA PRADESH 44
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. As both the appeals arise out of a common order and the question of law involved being the same, they are disposed of by this common Judgment.
2. In these appeals challenge is to the order dated 6-12-1994 passed by the learned District Judge, Rajnandgaon in civil suit Nos. 8-A/92 and 32-A/92 refusing toentertain the relief sought for by the plaintiff seeking certain declarations and permanent injunction.
3. The factual backdrop as has been depicted in that three meters have been installed at its three concerns, namely, M/s. Rajaram Maize Products, Rajaram Industries and Rajaram Brothers in view of it being consumer of electricity supplied by M. P. Electricity Board pursuant to the agreement with the M.P. Electricity Board. The Board has installed its own check meters and supply is made through the check meters to the plaintiff. In C.S. No. 8-A/92 it has been pleaded that in August, 1989, the meter installed in Rajaram Industry Division not being in order, the bills were prepared taking into consideration the average consumption of preceding three months. The same was duly paid by the plaintiff. However, by demand dated 5-12-1991 an additional bill amounting to a sum of Rs. 1,85,562/- was raised against the plaintiff. By order dated 7-12-1991 the Regional Accounts Officer, M.P.E.B. Rajnandgaon intimated that a sum of Rs. 18.367-24 had been adjusted towards subsidy and the balance amount of Rs. 1,67,195/- was to be paid by the plaintiff. It was further intimated that the check meter in the office was recording eight per cent less than the actual energy and, therefore, the bills raised earlier were incorrect owing to erroneous recording in check meters. By letter dated 27-1-1982 the defendant No. 2 called upon the plaintiff to pay the bill failing which the supply of electricity was to be disconnected. It has been further pleaded that as the defendants, i.e. M.P.E.B. and its functionaries were under legal obligation under Section 26(6) of the Electricity Act, 1910 to refer the dispute for adjudication and obtain a decision from the Electrical Inspector prior to raising the additional demand due to incorrect reading the check meter and the same having not been done, the demand and notice of disconnection are illegal, and are liable to be declared as such. With the aforesaid averments the plaintiff has sought for relief of declaration that the demand made is illegal, and for permanent injunction restraining the Board and its authorities from disconnection the supply of electricity to the plaintiff.
4. As far as C.S. No. 32-A/92 is concerned it has been averred that on the basis of reading reflected on the check meter the defendants have already recovered a sum of Rs. 1,98,388/-. Though the said amount is not recoverable by the Board and its authorities inasmuch as the plaintiff had cleared the dues, and the aforesaid amount was recovered on the basis of the additional bill which could not have been raised without adjudication of the disputes between the parties. The prayer is for reference of the disputes to the Electrical Inspector under Section 26 of the Electricity Act, 1910.
5. The defendants entered contest by filing written statements contending, inter alia, that the Court at Rajnandgaon had no territorial jurisdiction as the parties in their agreement had stipulated all the disputes would be triable only before a competent Court situated at Jabalpur. Apart from the stand taken with regard to ouster of jurisdiction, other factual assertions in the plaint were also traversed.
6. The learned trial Judge framing two issues, one relating toouster of jurisdiction as per Clause 42 of the agreement and the other one with regard to the grant of relief to the plaintiff. On discussion on the material on record and perusal of the agreement in vogue, the courts below rejected both the suits on the ground that it lacked jurisdiction to decide the controversy.
7. I have heard Mr. P.K. Verma along with Rcvish'Agarwal learned counsel for the appellants and Mr. R.S. Jaiswal learned counsel for the respondents.
8. Learned counsel for the appellants, Mr. Verma, has contended that the Court below has fallen into error in holding that it had no territorial jurisdiction to entertain the suit of the plaintiffs though ample evidence has been brought on record to'establish that part of the cause of action has arisen within the territorial jurisdiction of the Court. It is also submitted by him that the Court below has not scrutinised the conditions of the agreement in proper perspective as well as its place of execution.
Mr. Jaiswal, learned counsel for the respondents, per contra, has submitted that the agreement having been executed at Jabalpur and there being art ouster clause in the agreement the plaintiff could not have approached the Court at Rajnandgaon, and, therefore, the conclusion arrived at by the learned District Judge is unassailable.
9. The sole question that falls for consideration is whether the Court below was justified in negativing the contentions raised by the plaintiff with regard to determination of its jurisdiction to decide the controversy in issue. On perusal of the plaint I find that the disputes have arisen between the plaintiff and the M.P.E.B. Though averments have been made in the plaint with regard to supply of electricity and the disputes relating to the demands made for supply on the basis of reading of the metres, or other aspects incidental thereto, there is no mention of the agreement of the place of its execution. In the relevant paragraph relating to cause of action it has been pleaded in both the plaints that the cause of action had arisen within the territorial jurisdiction of Court of institution of the present suits. The defendants while denying all other aspects in the plaints have also taken plea of ouster of jurisdiction at the Court Rajnandgaon. After discussing the clause in the agreement the Court below has held that it had no jurisdiction to entertain the suit. In this regard it is appropriate to refer to Clause 42 of the agreement, which reads as follows :--
"42. The agreement shall be deemed to be entered into at Jabalpur and all disputes and claims, if any out of or in respect of this contract are to be settled at Jabalpur or be triable only in any competent Court situated at Jabalpur."
Reading the aforesaid clause in proper perspective it is absolutely clear that all disputes and claims in respect of the contract are to be tried in the competent Court situated at Jabalpur. The Court at Rajnandgaon, might have territorial jurisdiction to adjudicate the dispute arising between the parties due to arising of cause of action, within it but the jurisdiction of the Court is ousted because of the express ouster clause in the agreement existing between the parties. The exclusive jurisdiction, as per the agreement, has been vested with the competent Court at Jabalpur. It is well settled in law that the consent cannot confer jurisdiction but if two competent Courts have jurisdiction to try a dispute, the parties can exclude one and vest jurisdiction exclusively in the another. In this context reference may be made to the decision rendered in the case of Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740;
wherein the Apex Court has held as follows at page 741. :--
"It is not open to the parties by agreement to confer by their agreement jurisdiction on a court which it does not possess under the code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act."
In the case of A. B.C. Laminart Pvt. Ltd. v. A. P.. Agencies, Salam, AIR, 1989 SC 1239 the Apex Court has expressed thus at page 1246 :--
"When the Court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construeo the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the Courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, take away jurisdiction of other Courts. When an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius' expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another, when certain jurisdiction is specified in a contract an intention to exclude all other from its operation may in such cases be inferred. It has therefore to be properly construed."
I may now refer to the decision in the case of Angile Insulations v. Davy Ashmore India Ltd., AIR 1995 SC 1766 : (1995 AIR SCW 2763) wherein their Lordships after referring to the case of A.B.C. Laminart Pvt. Ltd. (supra) have held that the stipulations in the agreement excluding jurisdiction and conferring exclusive jurisdiction in courts at particular place which has also the jurisdiction to adjudicate are not against the public policy and also not hit by Sections 23 and 28 of the Contract Act. Dealing with the ouster clause in the said case their Lordships expressed as follows :--
"In this view of the law and in view of the fact that the agreement under which Clause (21) was incorporated as one such clause, the parties are bound by the contract. The contract had not been pleaded to be void and being opposed to Section 23 of the Contract Act. As seen, Clause (21) is unambiguous and explicit and that, therefore, the par-ties having agreed to vest the jurisdiction of the Court situated within the territorial limit of High Court of Karnataka, the Court of subordinate Judge, Dhanbad in Bihar State has no jurisdiction to entertain the suit laid by the appellant. Therefore, the High Court was right in upholding the order of the Trial Court returning the plaint for presentation to the proper Court."
Keeping in view the aforesaid enunciation of law it is to be a scrutinised whether the learned trial Judge has construed Clause 42 of the agreement in its true spirit. On close scrutiny of Clause 42 I notice that the language is clear and unambiguous as it stipulates that all disputes and claims, if any, out of or in respect of the contract are to be settled at Jabalpur, or triable in any competent court situate at Jabalpur. The word 'only' has to be given due weightage and on proper construction of the clause it can be stated with certitude that jurisdiction of other courts have been excluded. Use of the word only gains significance and there is no iota of doubt that it is an 'exclusive word' which excludes the jurisdiction of all other courts except the competent court at Jabalpur. In view of the penceding analysis, I am of the considered view that the judgment passed by the learned trial judge is not susceptible. The court below was justified in rejecting the plaints of the plaintiff to present the same in the proper court of law. It is hereby made clear that the observation in the lower court judgment touching the merit of the case would have no relevance when the plaintiff, would agitate their grievance before the competent court.
10. In the result, both the appeals fail and they are hereby dismissed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.