Delhi District Court
Aristo Paper Mart Through Its Partner vs Tulsi Enterprises Through Its Partner ... on 14 November, 2024
IN THE COURT OF SH. RAJESH KUMAR GOEL
District Judge (Commercial Court) -02,
Central, Tis Hazari
DLCT010019042022
CS (COMM.) No. 347/2022
CNR No. DLCT010019042022
M/s Aristo Paper Mart,
Through its partner Vipin Kumar Jain
3649,Gali Lohe Wali,
Chawri Bazar,
Delhi 6 ......Plaintiff
Versus
M/s Tulsi Enterprises
Through its partner Nishit Kothari
B-11, Nilamber Complex
Near Bank of Baroda
H.L College Road,
Nagvrangpura,
Ahmedabad 380009 ......Defendant
Date of filing of suit : 29.11.2022
Date of Argument : 13.11.2024
Date of Judgment : 14.11.2024
JUDGMENT (Exparte)
1. Vide this judgment, I shall dispose off the present suit for recovery of Rs.16,49,600/- (Rs Sixteen Lakh Forty Nine Thousand and Six Hundred M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 1 of 15 ) only) filed by the plaintiff M/s Aristo Paper Mart through its partner Mr. Vipin Kumar Jain (herein after referred to as "plaintiff firm") against the defendant M/s Tulsi Enterprises through its partner Nishit Kothari (herein after referred to as "defendant firm").
FACTUAL MATRIX
2. Brief facts of the case as made out from the plaint are that the plaintiff firm is doing business of trading in paper, boards of all kinds, printing ink, prints, varnishes etc, ( hereinafter refer to as 'papers') as merchants, agents, dealers, distributors, indenters etc; defendant firm is an importer, wholesale trader of papers; plaintiff firm placed an order with the defendant for import of C2S-AP-Gloss-90-23.0 inch paper and also C2S-Ap-Gloss-90-26.0 Inch paper for supply of total 150 tons reels; as per oral agreement mutually agreed between them, an amount of Rs 13,11,903/- advance/security was paid by the plaintiff to the defendant and the balance was to be paid upon delivery of the ordered material on bill wise at the godown of the plaintiff firm.
3. It is the case of the plaintiff firm that defendant M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 2 of 15 ) firm vide their invoice dated 29.5.2020 supplied 48 reels of C2S-AP-Gloss-90-23.0 inch paper amounting to Rs 23,66,903/- and vide invoice dated 30.06.2020 supplied 12 reels of C2S-Ap-Gloss-90-26.0 inch paper amounting to Rs 16,51,194/-; plaintiff firm paid a sum of Rs 27,00,000/- ( Rs 20,00,000/- vide cheque on 23.06.2020 and Rs 7,00,000/- through RTGS on 29.06.2020); upon checking the paper rolls were found to be wet and also there was a sizeable variation in the GSM; the discrepancy was informed to the defendant firm telephonically as well as through email dated 08.07.2020; defendant vide their email dated 09.07.2020 indirectly acknowledged the same and asked the plaintiff firm to take delivery of the balance material; plaintiff firm vide email dated 10.07.2020 and 16.07.2020 again requested the defendant firm to inspect the already supplied material and expressed their willingness to take the delivery of balance material upon written assurance by the defendant about the quality of the paper rolls but no heed was paid. It is averred that plaintiff firm had suffered losses as they further supplied the aforesaid paper rolls to their clients.
M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 3 of 15 )
4. It is the further case of the plaintiff firm that due to the acts of the defendant, plaintiff firm has suffered a total loss of Rs 15,15,678/-(Rs 2,03,775/- for supplying wet reels + Rs 13,11,903/- which has been arbitrarily adjusted by the defendant citing booking cancellation charges); as per the ledger account maintained by the plaintiff firm, Rs 15,15,678/- is due and outstanding against the defendant firm; plaintiff firm has also claimed @ 18% to the extent of Rs 1,33,922/-; legal demand notice dated 01.02.2021 was issued but no payment was made by the defendant firm. Hence the present suit was filed.
5. In terms of Section 12 A of the Commercial Courts Act, 2015, plaintiff firm appears to have gone for pre-institution mediation and a non-starter report dated 31.08.2021 was issued by the Central District Legal Services Authority.
6. Summons of the suit were issued to the defendant firm but defendant firm failed to appear before the court despite the service, therefore, the defendant firm was proceeded exparte vide order M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 4 of 15 ) dated 13.10.2022, by the Ld. Predecessor of this Court.
7. In support of its case, the plaintifffirm has examined its partner Vipin Kumar as PW1 who has filed his evidence by way of an affidavit Ex.PW1/1 and additional exparte evidence ExPW1/2 ( allowed vide order dated 08.05.2024).
8. PW1 Vipin Kumar has relied upon the documents i.e certificate of registered partnership deed Ex. PW1/A, partnership deed Ex. PW1/B, letter of authority from other partner Ex. PW1/C, second copy of material supplied by the defendant to the plaintiff Ex.PW1/D, statement of account Ex.PW1/E (ExPW1/K), ten photographs of damaged paper rolls Ex.PW1/F(Colly 1- 10), copy of Emails exchanged between the parties Ex.PW1/G(Colly), second copy of invoiced raised by the defendant firm canceling the booking of the plaintiff firm Ex. PW1/H, legal notice with postal receipt Ex.PW1/I(Colly), copy of reply to legal notice received from defendant Ex.PW1/J and the certificate u/s 65 B of the then Indian Evidence Act ExPW1/L, plaint ExPW1/M, M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 5 of 15 ) copy of builty dated29.05.2020 ExPW1/N, e-way bill receipt dated 29.05.2020 ExPW1/O e-way bill receipt dated 30.06.2020 ExPW1/P.
9. Ld. Counsel for the plaintiff firm has filed the written synopsis and has argued orally as well, more or less on the lines of the averments made in the plaint and deposition of the plaintiff's witness PW1 and submitted that plaintiff firm has been able to establish its case. Regarding the issue of jurisdiction, Ld. Counsel for the plaintiff has relied upon one authority reported as Shridhar Vyapaar Pvt. Ltd. Vs Gammon India Ltd, 2018 SCC OnLine Cal 11749.
10. I have perused the record and heard the Ld. Counsel for the plaintiff firm. I have also gone through the judicial authority as relied upon by the Ld. Counsel for the plaintiff firm.
11. Before touching the merits of the present case, I deem it appropriate firstly to decide whether this court has territorial jurisdiction to entertain and try the present case.
12. It is the case of the plaintiff firm that plaintiff firm had placed an order for import of the papers M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 6 of 15 ) and pursuant to that defendant firm supplied the goods vide invoice dated 29.5.2020 in the sum of Rs 23,66,903/- and invoice dated 30.06.2020 in the sum of Rs 16,51,194/- ExPW1/D. The plaintiff firm has also not disputed the invoice dated 01.09.2020 ExPW1/H raised by the defendant firm in respect of booking cancellation charges.
13. A careful examination of aforesaid invoices would reveal that one of the terms and conditions, as mentioned in the invoices is " jurisdiction subject to Ahmedabad only" which has been further repeated at the bottom of the invoice as " subject to Ahmedabad Jurisdiction".
14. Having noted the aforesaid facts, now, the core question to be decided would be what would be the effect of said jurisdiction clause as mentioned on the invoices. Before proceeding further, it would be appropriate to refer to the observations of the Hon'ble Supreme Court pertaining to the issue in question.
15. In A.B.C. Laminart (P) Ltd. v. A.P. Agencies, (1989) 2 SCC 163 , Hon'ble Supreme Court was M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 7 of 15 ) concerned with Clause 11 in the agreement which read, "any dispute arising out of this sale shall be subject to Kaira jurisdiction". The disputes having arisen out of the contract between the parties, the respondents therein filed a suit for recovery of amount against the appellants therein and also claimed damages in the Court of the Subordinate Judge at Salem. The appellants, inter alia, raised the preliminary objection that the Subordinate Judge at Salem had no jurisdiction to entertain the suit as parties by express contract had agreed to confer exclusive jurisdiction in regard to all disputes arising out of the contract on the Civil Court at Kaira. When the matter reached Hon'ble Supreme Court one of the questions for consideration was whether the Court at Salem had jurisdiction to entertain or try the suit. While dealing with this question, it was stated by Hon'ble Supreme Court that the jurisdiction of the court in the matter of contract would depend on the situs of the contract and the cause of action arising through connecting factors. The Hon'ble Supreme Court referred to Sections 23 and 28 of the Contract Act, 1872 and Section 20(c) of the Civil Procedure Code and also referred to Hakam Singh v. Gammon M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 8 of 15 ) (India) Ltd., (1971) 1 SCC 286 and in para 21 and 22 of the Report held as under:
"21. ... When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of 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 others from its operation may in such cases be inferred. It has therefore to be properly construed."
"22. ... We have already seen that making of the contract was a part of the cause of action and a suit on a contract therefore could be filed at the place where it was made. Thus, Kaira Court would even otherwise have had jurisdiction. The bobbins of metallic yarn were delivered at the address of the respondent at Salem which, therefore, would provide the connecting factor for Court at Salem to have jurisdiction. If out of the two jurisdictions one was excluded by Clause 11 it would not absolutely oust the jurisdiction of the court and, therefore, would not be void against public policy and would not violate Sections 23 and 28 of the Contract Act. The question then is whether it can be construed to have excluded the jurisdiction of the Court at Salem. In the clause 'any dispute arising out of this sale shall be subject to Kaira jurisdiction' ex facie we do not find exclusionary words like 'exclusive', 'alone', 'only' and the like. Can the maxim expressio unius est exclusio alterius be applied under the facts and circumstances of the case? The order of confirmation is of no assistance. The other general M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 9 of 15 ) terms and conditions are also not indicative of exclusion of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which court otherwise had jurisdiction under law through connecting factor of delivery of goods thereat was expressly excluded."
16. In the case of "Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd.", (2013) 9 SCC 32, wherein the case of A.B.C. Laminart (P) Ltd. (Supra) was referred to and discussed, it was held that :-
"32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like "alone", "only", "exclusive"
or "exclusive jurisdiction" have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties--by having Clause 18 in the agreement--is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 10 of 15 ) courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner."
57. For the reasons mentioned above, I agree with my learned Brother that in the jurisdiction clause of an agreement, the absence of words like "alone", "only", "exclusive" or "exclusive jurisdiction" is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the courts in Kolkata had jurisdiction to entertain the disputes between the parties."
17. If the proposition of law and the observations made by Hon'ble Supreme Court in the cases of A.B.C. Laminart (P) Ltd. (supra) and Swastik Gases (P) Ltd. (supra) is applied to the facts and circumstances of the present case, then there would not be any difficulty for this court to arrive at a conclusion that this court lacks territorial jurisdiction to entertain and try the present dispute between the parties.
18. In the present case, the order of the papers is said to have been placed from Delhi to the defendant M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 11 of 15 ) fir at Ahmedabad; the part supply of the goods was made at Delhi from Ahmedabad; the part payment was made by the plaintiff firm from Delhi to Ahmedabad. That being so, in normal circumstances, the cause of action would arise at Delhi as well as at Ahmedabad. In case, there are no terms and conditions regarding the jurisdiction, in that eventuality, any of the parties could have filed the case either at Delhi or at Ahmedabad.
19. Reverting back to the present case, admittedly, the present case of the plaintiff firm is based upon the said invoices. Therefore, at least the plaintiff firm is bound by the terms and conditions as mentioned in the said invoices. In the jurisdiction clause, it has been categorically mentioned that the jurisdiction shall be of Ahmedabad only. Here, I may mention that the parties to the business dealings can confer the jurisdiction in the court where cause of action or part cause of action has arisen but not in the court where no cause of action has arisen. The dealings between the parties would clearly indicate that the cause of action either arose at Ahmedabad from where the goods were supplied or where purchase orders appear M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 12 of 15 ) to have been placed or at the most at Delhi where the goods were actually supplied and from where the plaintiff firm made the payment to the defendant firm.
20. There is nothing on record suggesting that plaintiff firm was not ready to accept the terms and conditions as mentioned in the invoices, including the jurisdiction clause, in that eventuality the plaintiff firm cannot be allowed to disown those conditions as these invoices have been raised on the plaintiff firm by the defendant firm, which have been duly reflected in the statement of account ExPW1/K (ExPW1/E) also, maintained by the plaintiff firm.
21. I have also gone through the judgment as relied upon by the Ld. Counsel for the plaintiff firm but same is distinguishable on facts and would not be helpful to the plaintiff firm. At the cost of repetition, I may say that when there is a choice of Forum, it is certainly open to the parties to agree on an exclusive forum for settlement of disputes. From the overall facts and circumstances of the present case, it can easily be inferred that the plaintiff firm has accepted the terms and conditions as mentioned on the M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 13 of 15 ) invoices. In the backgrounds of the fact that plaintiff firm was in regular touch with the defendant firm through e-mails, no such objection was ever raised regarding any terms and conditions as mentioned on the invoices including the jurisdiction clause. That being so, it is difficult to hold in the given circumstances, that there has been no consensus ad idem in respect of the jurisdiction clause.
22. Accordingly, as per the said jurisdiction clause, the court situated only at Ahmedabad would have the jurisdiction to entertain and try the present case. Thus, in view of the settled preposition of law as elucidated in the cases of A.B.C. Laminart (P) Ltd. (supra), Swastik Gases (P) Ltd. and Patel Roadways Ltd. (supra), this court has no jurisdiction to entertain and try the present case.
23. Since this court lacks the territorial jurisdiction to entertain and try the present case, therefore, it would not be appropriate to give findings and opinion on the rest of the issues touching the merits of the present case.
24. In view of my aforesaid discussion, the plaint is directed to be returned under Order VII Rule 10 M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 14 of 15 ) CPC as per the rules.
25. File be consigned to Record Room, after due compliance. RAJESH Digitally signed by RAJESH KUMAR KUMAR GOEL Date: 2024.11.14 GOEL 14:51:55 +0530 (Rajesh Kumar Goel) District Judge (Commercial)-02 Central, Tis Hazari Courts 14.11.2024 Announced in the Open Court today i.e:14.11.2024 (digitally signed on 14.11.2024) M/s Aristo Paper Mart vs M/s Tulsi enterprises date of judgment 14.11.2024 (Page 15 of 15 )