Delhi District Court
M/S Sav Engineers vs M/S Easum Reyrolle Ltd on 15 February, 2016
ID No.02401C0538542011
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CS. No.97/2011
M/s SAV Engineers ..........Plaintiff
versus
M/s Easum Reyrolle Ltd. ........Defendant
O R D E R
15.02.2016
1. By this order, I shall dispose of the preliminary issue ie., issue no.1 regarding maintainability of the present suit. The present suit has been filed by the plaintiff for recovery of Rs.16,64,795/ alongwith pendentelite and future interest @ 18 % p.a. The plaintiff is running the business of trading of electrical equipments and articles and turnkey job work of installation and commissioning of electrical items/goods etc. The defendant is engaged and running the business of manufacturing Prepaid/Postpaid Automatic Meter Reading Systems (AMRs). The plaintiff approached the defendant and inquired about the detailed specifications of the PrePaid AMR Systems from the defendant. Plaintiff was satisfied with the specifications of the AMRs provided by the defendant. The plaintiff placed three purchase orders bearing Nos. PO001, PO002 and PO003 all dated 07.10.2008 to defendant for supply of ISI Marked Three Phase, Dual Source Energy Meters and two number of Dual Source Energy Meters to plaintiff at Delhi and 1/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
raised invoices for the same. The plaintiff has placed purchase orders of 25 Dual Source Energy Meters and three DCU but defendant failed to provide the PrePaid software with SMS alert. The PrePaid AMR system purchased by the plaintiff were to be installed and commissioned at different locations/site of M/s Vatika Ltd., M/s Rishab Platinum and M/s Reliant Infratech i.e. Customers of plaintiff. The said goods supplied by the defendant were found defective. The plaintiff immediately intimated the defendant about the said fault. The defendant engineer visited the site of M/s Rishab Platinum and revealed that the meters in question were not having automatic inbuilt disconnector and reconnector feature. Therefore, all the meters and goods were returned by the customers of the plaintiffs. In the same way M/s Vatika Ltd. returned the goods/meter supplied by the plaintiff. The defendant failed to replace the faulty meters as agreed upon. After great pursuasion defendant installed PrePaid software. After great pursuasion, defendant agreed for installing the Prepaid software at M/s Rishab Platinum's site in November 2009 but that was also defective. The defendant failed to rectify and the present suit was filed.
2. The defendant filed written statement stating therein that this court has no territorial jurisdiction. The plaint is to be rejected. It is further submitted that there is no privity of contract between the defendant with the third party/customer of the plaintiff. The defendant is legally obliged for the performance of the contract and honor the commitment made with the plaintiff. Two purchase orders were placed by the plaintiff both dated 07.10.2008 and the offer of plaintiff was accepted and goods were supplied and the defendant has performed the contract as per law. The plaintiff has not made the payment of the goods supplied in terms of purchase order 2/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
No.PO003. Some of the meters got damaged due to mishandling by the plaintiff. It is further submitted that on account of some technical fault that might have developed in the meters/goods, a provision in the agreement for 'on site service and repair of the product, if any, reported was in corporated. But there is no provision in the contract to replace the already delivered products at the site after due inspection and satisfaction of the quality and efficiency of the said product by the plaintiff. Defendant demanded his balance payment of Rs.3,41,907/ on 08.01.2011. Therefore, defendant is entitled for counter claim of Rs.4,30,803/ with future interest @ 20 % as well as Rs. 3 lacs towards damages on account of harassment. The plaintiff is not entitled for any claim as alleged in the plaint. Plaintiff filed replication denying each and every allegations made in the WS. Thereafter, completion of pleadings, issues were framed and issue no.1 has been treated as preliminary issue. Arguments on the preliminary issue already heard.
3. Ld. Counsel for the defendant has submitted that the court has no territorial jurisdiction to try and entertain this suit as no cause of action arose in Delhi. The contract was concluded 'in the registered office of the defendant at Chennai. The defendant sent quotations to the plaintiff at Delhi and thereafter, plaintiff raised purchase order, in response thereof, the defendant supplied goods and raised invoices containing the 'exclusionary clause' that 'subject to Chennai jurisdiction only'. The plaintiff in para 7 of the plaint has mentioned about the invoices so raised by the defendant, which, got incorporated in the plaint as per mandate of law laid down in "Church of Christ Charitable Trust & Educational Charitable Society" represented by its Chairperson/Managing Trustee, 2012 VII 3/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
AD (S.C.)1.
4. It is submitted that the quotation issued by defendant are different from the price mentioned in the purchase order in respect of different items, therefore, the quotation of the defendant is an invitation to make an offer and purchase order placed by the plaintiff upon defendant in an offer. The defendant accepted the offer and delivered the goods after raising invoices from its registered office, therefore, contract stood concluded at Chennai. Even the legal notice is issued by plaintiff at the registered office of defendant at Chennai as well as its Head Office Bangalore. As such suit can be filed and maintainable at Chennai only. Reliance is placed upon "Shri Kuldeep Singh vs. Union of India and Others" AIR 1986 Delhi 56 (Full Bench), Bajaj Electrical Limited vs. Rana Sugar Limited, CSOS 1259/2009 Delhi High Court, Ms Gopal Singh vs. Punjab National Bank", AIR 1976 Delhi 115, Degremont Limited vs. Kolkatta Municipal Corporation, judgment passed by the Hon'ble Delhi High Court in CS (OS) No.276/2012. The 'exclusionary clause' is legal and plaintiff made payments in terms of the invoices raised by defendant, therefore, it is not against the public policy as plaintiff never raised any objection while making payment of the amount detailed in invoices . Reliance is placed upon "Hanil Erra Textile Ltd. vs. Puromatic Filters (P) Ltd." (2004) 4 SCC 671; "A.C.B. Laminart Pvt. Ltd. And another vs. A.P. Agencies Salem" AIR 1989 SC 1239; "New Moga Transport Company vs. United India Insurance Company Limited" AIR 2004 SC 2154; "W.V.C. Pvt. Ltd. vs. Sterling Tools Ltd." 177 (2011) DLT 731 and "Mittal Extrusion Works Private Ltd. vs. Biogenetic Drugs Pvt. Ltd. 4/21 CS. No.97/2011
M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
& Ors." 2013 (134) DRJ 723"
5. Per contra, ld. Counsel for the plaintiff has submitted that the defendant has placed quotations from Bangalore office but the price of goods detailed in the said quotations was on higher side but after negotiations the defendant reduced the price of goods telephonically and asked the plaintiff to accept the goods at reduced price. The plaintiff agreed to purchase goods at reduced price and placed purchase orders dated 07.10.2008 to the defendant from its Delhi Office. The negotiations regarding offer and acceptance were made by defendant from its Bangalore and Delhi Office and no cause of action accrued in Chennai. After formation of the contract, the goods were supplied from Hosur Factory site of the defendant as per delivery challancum invoices. Although the offer was already made by the defendant and was accepted by the plaintiff by placing orders yet, even if, for the sake of arguments, it is presumed that plaintiff offered to purchase the goods by placing purchase order and defendant accepted it at its Bangalore Office and acted upon; The said contract was concluded at Delhi as the supply of the goods to the plaintiff was made from defendant's Hosur Factory site.
Therefore, the receipt of goods and invoices by plaintiff in either case i.e. irrespective of the fact that the offer was accepted by plaintiff at Delhi or by the defendant at Bangalore by issuance of invoices. The receipt of invoices by by the plaintiff at Delhi was an act subsequent to the conclusion of the Contract. The said act of raising invoices cannot be treated as acceptance of contract as the contract had already come into existence either at Delhi as per case of the plaintiff or at Bangalore as per the case of the defendant.5/21 CS. No.97/2011
M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
6. It is further submitted that it cannot be agitated by defendant that contract concluded at the time of raising invoices containing 'exclusionary clause' as after the contract having concluded between the parties, the raising of unilateral invoices cannot be binding between the parties to confer exclusive jurisdiction to a particular court having no jurisdiction. The case law relied upon by the defendant W.V.C. Pvt Ltd case (supra) also support this view.
7. It is further submitted that defendant failed to place on record any document to infer that any part of the cause of action accrued in Chennai, therefore, exclusionary clause is not binding as the place from where goods are dispatched is not the place where whole or part of the contract is said to be performed. Reliance is placed upon "Dentsply India (pvt.) Ltd. vs. Excel Internation, judgment passed by Hon'ble High Court in (C.S. (OS) No.410/1999)". The exclusionary clause in the invoices is unilaterally incorporated in the invoices by the defendant which was never agreed upon by plaintiff is not binding. Reliance is placed upon " United India Insurance Co. Ltd. vs. ATC Pvt. Ltd." AIR 1988 KER 36, "P. R. Ltd. vs. Jagannath" AIR 2003 Orissa 17; "Rajiv Kumar vs. Kewal Cargo" AIR 2007 DEL 27; Judgment dated 29.07.2013 in CS(OS) No.276/2012 titled as "Degremont Ltd. vs. Kolkata Municipal Corporation" , "V.I. & S Ltd. vs. Press Weed Engineers" KAR. L. J. 1982 (2) Page 57 and "
D.V.V. Subbayya Firm vs. Biswanath" AIR 1962 AP 338. The defendant is having registered office at Chennai but also having is Corporate office at Bangalore and subordinate office at Noida. Therefore, suit is maintainable against defendant not only at its registered office but also at subordinate 6/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
office where a part of cause of action accrued. Reliance is placed upon "
Patel Roadways Ltd. vs. Prasad Trading Co." 1991 (3) SCR 391.
8. It may be noted that so far as exclusionary clause is concerned law is well settled that parties by agreement can confer exclusive jurisdiction on any court so long as that court is one of the court where some cause of action arises. The legal position has been settled in "A.B.C. Laminart Pvt.
Ltd. vs. A. P. Agencies" AIR 1989 SC 1239 which was reiterated in Hanil Era (supra).
9. In Degremont case (supra) the defendant (therein) award a contract to the plaintiff (therein) to operate and maintain a 20 M G D Water Treatment Plant which was affected upon April 2006, in the meantime, the Union of India imposed service tax on the plaintiff which plaintiff paid and sought recovery of the service tax from the defendant despite having the "exclusive clause regarding jurisdiction of the court at Calcutta". It was stated that as regards acceptance of a contract via letters, the place of formation of a contract is the place where the acceptance was dispatched which was Kolkata. It was further observed in para 11 as under :
In the present case, the defendant is situated in Kolkata and was constituted by the West Bengal Act, LIX 1980. The functions of the defendant corporation are confined within State of West Bengal. It is not the plaintiff's case that the defendant operated from, or has various branches or subordinate offices all over the country through which it is operating. It has no operation in Delhi. Though the Plaintiff may have deposited the cheques in Delhiwhich were received by it in Kolkata, that would not vest jurisdiction in the Courts at Delhi. If this submission were to be accepted, a party 7/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd. may deposit the cheque received by it at its place of choice anywhere in the country, and create jurisdiction in the Court having jurisdiction over such place. Similarly, because the Plaintiff may have issued its invoices from New Delhi, this Court would not have jurisdiction. The defendant is not concerned, and has no control over such unilateral acts of the plaintiff who may choose to issue invoices from any of its several offices. None of these facts are a part of bundle of essential facts, which constitute cause of action. What is of relevance is where the invoices were sent to the defendant, and where they were expressly or impliedly repudiated/rejected. It is the rejection of the invoices raised by the plaintiff (from where ever they may have been raised) which gives rise to cause of action.
10. In V.I. & S Ltd. (supra), the question involved was whether modified quotation sent by plaintiff were accepted at Bhadravathi and the defendant sent the goods from Bombay but goods were defective and in suit for recovery of amount of goods the place where goods were delivered was held to have jurisdiction and in para no.8 it has been observed as under :
"8. The acceptance of the offer i.e. The quotations submitted by the defendant had taken place at Bhadravathi only. Unless the quotations submitted by the respondent were accepted, there was no question of placing the order as per Ex D1, for supply of the equipment by the defendant was subject to performance guarantee which had to take place at Bhadravathi only. Thus, part of the contract was required to be performed at Bhadravathi because the supply of the equipment was subject to the guarantee of satisfactory performance of the equipment at Bhadravathi.
Therefore, when the equipment was installed at Bhadravathi, the performance of it was to be observed at Bhadravathi. According to the plaintiff, the performance was not upto the mark, 8/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
therefore, they demanded the refund of the amount paid pursuant to the contract. When the contract itself was subject to performance guarantee and that performance was to take place at Bhadravathi, it was not at all possible to say, rather it was too much on the part of the Courts below and the defendant respondent to say, that no part of the performance of the contract had taken place at Bhadravathi. Both the Courts below have failed to notice this aspect of the matter."
11. In Indian Oil Corporation case (supra), it was observed that collecting bank acted as mere agent for transmission of the money. It is the bank on which the cheque are drawn which determines the place of payment and in para 11, it has been observed as under :
"11. With this background of the facts, it is apparent that the Delhi court has jurisdiction to try this petition.
Respondent's tender for the supply of goods was received at Delhi and its acceptance also took place by the petitioner at Delhi. In fact the meetings in which the various terms of the contract were settled took place between the parties at Delhi and the minutes thereof were signed by both of them at Delhi. The telex of the purchase order which the petitioner later placed with the respondent was received on latter's behalf by its representative at Delhi. The bills for payments were presentable by the respondent at Delhi and they in fact were so presented. Some of the payments were received by cheques which were drawn on plaintiff's bank at Delhi. Simply because the respondent got them collected 9/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
through its bank at Kota would not make that the place of payment. The collecting bank acted as mere agent for transmission of the money. It is the bank on which the cheques are drawn which determines the place of payment. See in this regard the full bench decision of the Madras High Court In K.E.P.V. Venkatachalam Pillai vs. Rajaballi M. Sajun, AIR 1935 Mad 663. Similarly part of cause of action arises at a place where presentment for pavement has to be made vide J N Sahni vs. State of Madhya Bharat, AIR 1954.
12. In Parma Nand case (supra) it was held that that whatever the relationship between the parties may on fact, if payment for the goods purchased be was to be made at A then part of the cause of action arises within the jurisdiction of the court at A and that court is competent to entertain the suit.
13. In D. V. Venkata Subbayya case (supra) it was observed that in cases of contract of sale of goods, the place where the goods have to be delivered or the place where the payment of money towards the price of the goods is to be made is the place of performance of the contract and the court of that place will have jurisdiction to entertain the suit. The goods were to be supplied by the seller at Vijaywada on payment by the buyer at Vijaywada so that Vijaywada was not only the place of delivery of goods but the place of payment of money was also at Vijaywadda. In 'United India Insurance 10/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
Co. Ltd. Vs. Associated transport Corporation case (supra)', it was held that unilateral 'exclusive clause' regarding jurisdiction is not binding on the parties, in para 5 it has been observed as under :
"5. We are in respectful agreement with the view expressed in the above decision. Ext. B1 series in this case also contain printed words "subject to Bombay jurisdiction alone". Apart from the existence of these printed words, respondent has no case that there was a meeting of minds between the consignor and the carrier and there was a specific agreement in that behalf. The consignment was delivered to the carrier, the carrier took custody of the goods and thereafter issued the receipt or consignment note which contained the printed words. The note was signed only by an employee of the respondent. No doubt, they were handed over to the consignor. But there was nothing to indicate that there was an agreement between the parties to confer exclusive jurisdiction to Bombay Court. These printed words by themselves and without anything more would not be sufficient to constitute an agreement to oust the jurisdiction of all Courts other than the Court specified. In these circumstances, we set aside the findings of the Court below had answered all the issues either in favour of one party or the other. The parties have no right of appeal against those findings in as much as the plaint itself was returned. In these circumstances, we deem it expedient to direct the Court below to retry all the issues and dispose of the suit afresh. Learned counsel for the respondent pointed out that the Counsel below had held that the appellant was incompetent to sue. This issue also will be retried alongwith the other issues." So is the ratio of the South Eastern Railways (supra) & Prakash Roadways Ltd. (supra).11/21 CS. No.97/2011
M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
14. In W.V &C. Pvt. Ltd. case (supra),the purchase order contained 'exclusive clause' of Faridabad and those purchase order accepted, therefore, courts at Faridabad were held to have exclusive jurisdiction to entertain the suit and in para 18 and 19 it has been observed as under :
"18. A reading of the aforesaid three conditions together leaves no room for doubt that the purchase order placed by the respondent was subject to the conditions that the disputes, if any would be subject to Faridabad jurisdiction and that the order placed was subject to terms and conditions which include the issue of jurisdiction also".
"19. No doubt, the copies of the bills raised by the appellants also contain a jurisdiction clause by stating"All disputes are subject to Delhi Jurisdiction." However, this condition is again subject to the acceptance of the purchase order. Therefore, once, the appellant agreed to supply the goods in terms of the purchase order placed by the respondent which provides that jurisdiction in case of dispute would be that of the Faridabad Courts only, mere mention of the term 'subject to Delhi jurisdiction' in their invoices will not annul the terms and conditions contained in the purchase order which is the basis of accepting the purchase order by the appellant."
15. In Rock lite Resins & Chemicals case (supra) it was observed that even if the invoice containing exclusionary clause regarding jurisdiction for Courts at Delhi, a suit can be maintained in Delhi only if some part of the cause of action has arisen in Delhi.
16. In Dentsfly case (supra), the principles for determination of place for filing suit were laid down and in para 5 and 6, it has been observed 12/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
as under :
"5. The defendants urge framing of an issue as to lack of territorial jurisdiction of this Court. In a contractual matter, the jurisdiction of a Court arises from four aspects. The first is where the contract is entered into. Second is where the contract is to be performed. The third is where moneys have to be paid under the contract and fourthly where the defendants in the suit are residing or voluntary working for gain. This is the ratio of the judgment of Supreme Court in the case of ABC Laminart Pvt. Ltd. & Anr. vs. A. P. Agencies, Salem, AIR 1989 SC 1239. if there is more than one Court which has territorial jurisdiction, then parties by contract can restrict the jurisdiction to one or more of the Courts which have jurisdiction, however, parties by consent restrict the jurisdiction on one or more of the Courts which have jurisdiction, however, parties by consent restrict the jurisdiction to one or more of the Courts which have jurisdiction, however, parties by consent cannot confer jurisdiction on a Court which otherwise does not have any. In the present case, the only reason is urged for pleadings that this Court has no territorial jurisdiction is because the goods are alleged to be supplied by the plaintiff from its godowns at Gurgaon."
"6. In my opinion no issue arises as to lack of territorial jurisdiction of the Delhi in as much as merely because the goods are dispatched from particular place, such place cannot be the court where territorial jurisdiction arises in contractual matter. It is the place where the goods are to be delivered is the place which would have territorial jurisdiction as that is the place where whole or part of the contract is said to be performed in as much as the buyer/defendant has not accepted delivery at Gurgaon. In the present case, Courts at 13/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
Haryana thus have no territorial jurisdiction as no part of cause of action has arisen in such Court, and therefore, once Courts at Haryana are not such Courts where whole or part of the cause of action has arisen, then parties cannot by consent confer jurisdiction on such Court which does not have any. I thus decline to frame the issue of territorial jurisdiction, as mere pleading does not mean that issues have to be compulsorily once the issue is answered i.e. does not arise."
17. In Bajaj Electrical Ltd. case (supra) the purchase order issued by the defendant was containing exclusionary clause for Courts at Chandigarh and plaintiff supplied goods to the defendant in terms of the said purchase orders and therefore, it was observed that defendant was having permanent office at Chandigarh and as such court at Chandigarh will have jurisdiction.
18. In Kuldeep Singh case (supra), the headquarters of the Railway at a place held to be a particular place where suit can be filed and it has been observed as under :
"Reading the case of Gupta (AIR 1985 Delhi 122) (FB) (supra) it is now not open to dispute that the Union of India is carrying on business of running the railways. It is also beyond doubt that the UOI could be sued at the principal place of general superintendence and management. As mentioned above Lucknow being within the Northern Railway and the headquarters of the Northern Railway being at Delhi suit could be filed against the UOI at Delhi. Obviously, for the same reason an application under the Arbitration Act can also be filed in Delhi . (See Shri Ram Rattan Bhartia vs. Food Corporation of India, AIR 1978 Delhi 183 (FB) 14/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
and N. D. Sud v. Union of India ILR (1973) 2 Delhi
503.) Mr. Syal did make an effort to distinguish Lado Lal (supra) and Gupta's case (Full Bench) but without any success because there is in effect no distinction on principle which have been laid down by these two cases."
19. In Gopal Singh case (supra), the head office of a bank held to be a place where suit can be filed and in para 26 it has been observed as under :
"26. This issue is based on the plea of the bank that in as much as the bank was not negligent, the suit was not maintainable. In the written arguments on behalf of the bank a suggestion was also made that the suit was not maintainable because the Delhi high Court had no jurisdiction to entertain it. I do not see how merely because the bank may not ultimately be found to be negligent or to be liable to the plaintiff, the suit is not maintainable. The maintainability of a suit and the sustainability of a claim ultimately fails and could not succeed, the suit may still be maintainable unless there is any legal bar of it and none was pointed out. The plea that this court had not jurisdiction is equally unsustainable. The jurisdiction of the court is clearly justified with reference to the situs of the residence of the bank. The bank admittedly had its head office during all material time in Delhi and that being so, the Delhi Court had the necessary jurisdiction to take seizin of the suit. I have, therefore, no hesitation in holding that the suit was maintainable."
20. In Patel Roadways's case (supra), it was held that the place where no cause of action occurred cannot be held to be place having the 15/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
jurisdiction to file the suit and in para 9 it has been observed as under :
" 9. In the instant two cases since clause (c) is not attracted to confer jurisdiction on courts at Bombay and the appellant has admittedly its subordinate offices at the respective places where the goods in these two cases were delivered to it for purposes of transport, the courts at Bombay had no jurisdiction at all to entertain the suit filed by th e respondents and the parties could not confer jurisdiction on the courts at Bombay by an agreement. Accordingly, no exception can be taken to the findings in this behalf recorded by the trial court and the High Court."
21. In Mittal Extrusion Works Private Ltd. case (supra), the invoice containing clause of jurisdiction was acted upon by making payment, therefore, exclusive clause was held valid. in para 10 and 11 it has been observed as under :
"10. This Court is of the opinion that the contention of the plaintiff that the ouster clause contained in the invoice issued by it, would not be binding upon the parties, is misconceived. As soon as the invoices were sent by the plaintiff and the defendant no.1company admittedly accepted the goods under the said invoices without any protest, the contract between the parties stood completed and both parties were bound by the said ouster clause."
"11. The reliance upon the judgments by the learned counsel for plaintiff is misplaced in so far as the judgments cited by the plaintiff deal with situations wherein there had been contrary stipulations with regard to conferment of exclusive territorial jurisdiction in the purchase order placed by one party and the invoices by the other party. Moreover, the cases relied upon by the plaintiff, one 16/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
party has sent a communication containing ' a right determining clause' and the other party has raised an objection to it. This is, however, absent in the present case whereby the defendants have not raised any objection to the ouster clause. In fact, even during the course of hearing, Ms. Oberoi, learned counsel for defendant no.1 Company took a specific stand that defendants No.1 to 5 never protested as far as the ouster clause is concerned and are willing to submit to the jurisdiction of the courts in Ghaziabad as contained in the invoices raised by the plaintiff.
22. In New Moga Transport Co. (supra) case, 'exclusive clause' regarding jurisdiction was held to be valid as a part of cause of action accrued at Udaipur and in para 19 it has been observed as under :
"19. The intention of the parties can be culled out from use of the expressions "only", "alone", "exclusive" and the like other referene to a particular court. But the intention to exclude a Court's jurisdiction should be reflected in clear, unambiguous, explicit and specific terms. In such case only the accepted notions of contract would bind the parties. The first appellate Court was justified in holding that it is only the Court at Udaipur which had jurisdiction to try the suit. The High Court did not keep the relevant aspects in view while reversing the judgment of the trial Court. Accordingly, we set aside the judgment of the High Court and restore that of the first appellate court and restore that of the first appellate Court. The Court at Barnala shall return the plaint to the plaintiff no.1 (respondent no.1) with appropriate endorsement under its seal which shall present it within a period of four weeks from the date of such endorsement of return before the proper Court at Udaipur. It it is so done, the question of limitation shall not be raised and the 17/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
suit shall be decided on its own merits in
accordance with law. The appeal is allowed. No
costs."
23. This court has gone through the pleadings and heard the counsel for parties. In the present case, the defendant sent quotations but plaintiff after reducing the price of the goods detailed in quotations issued purchase order from Delhi to defendant at its corporate office at Banglore and subsequenlty the goods were dispatched by the defendant from its factory at Hosur (Tamil Nadu) to plaintiff at Delhi. In view of the aforesaid, this court is of the opinion that since parts of the cause of action has arisen at all of the above mentioned three places, the courts at all these places would be competent to entertain any dispute arising out of these transactions between the parties. Otherwise also in a contractual manner, the jurisdiction of a court arises from four as aspects. The first is where the contract is entered into, second is where the contract is to be performed. The third where money has to be paid under the contract and fourthly where the defendant is residing or voluntarily working for gain so is the ratio of V.I.D.D Ltd (supra) & Indian Oil Corporation (supra), Parmanand (supra), D.V.V Subbaya Firm (supra) and M/s Phoenix (supra).
24. So far as the issue regarding the principles of forum selection is concerned, it is a settled law that where there may be more than one competent court which can entertain a suit consequent upon a part of the cause of action having arising therein, the parties to the contract can agree to jest jurisdiction in one of such competent courts to try the dispute which might arise between the parties and such an argument would be valid and 18/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
binding upon the parties as per law laid down in Hanil Dra case (supra) and New Moga Transport Co. (supra) and Thakral & Sons Vs. Indian Petro Chambers (surpa). Even the settled law is that as per section 20 (a) Explanation the defendant company if having a principal office as well as a subordinate office that court alone will have the jurisdiction and not where the principal office of the defendant is situated. But no case of action in present case has arisen at principal/registered office of defendant at Chennai.
25. This court is of the opinion that the contention of the defendant that the outer clause contained in the invoices issued by it, would be binding upon the parties, is misconceived in as much as no part of the cause of action has arisen in Chennai where the registered office of the defendant is situated and mere raising of invoice from a particular place did not vest jurisdiction in the court of that particular place unless a part of cause of action accrued at that particular place. Here the invoices are raised from Hosur and not from Chennai. In this regard relevance is placed upon Degremont case (supra) & M/s Rocklite Resins case (supra).
26. The case law W.V & C pvt ltd case (supra) on which reliance is placed upon by the defendant also mandates that if the parties agreed upon an 'exclusionary clause' for a particular place at which a part of case of action accrued such clause is binding on parties. In that case appellant (therein) had accepted the purchase order containing the clause " subject to Faridabad" and appellant (therein) supplied goods in terms of these purchase order through invoices containing the clause" "subject to Delhi jurisdiction" therefore, appellant (therein) had acted upon the purchase order 19/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
and supplied the goods through invoice containing subject to 'Delhi jurisdiction' therefore, the court at Faridabad were held to have jurisdiction. But in the present case the invoices issue from Hosur containing clause "subject to Chennai jurisdiction from where no part of cause of action has accrued in the transactions between the parties. Therefore, this case law has no applicability to be the present case. In the same manner is Mittal Extrusion (supra) the purchase order contained a clause 'subject to Ghaziabad only" from where the goods were dispatched, therefore the facts of the present case is distinguishable to the facts of the above said case. In Bajaj Electrical Ltd (supra) the defendant (therein) raised purchase order containing clause "subject to Chandigarh jurisdiction" and plaintiff (therein) accepted their purchase order and supplied goods through invoice, therefore plaintiff' (therein) accepted to the said condition in purchase order and supplied goods at Chandigarh to defendant. But in the present case defendant raised invoices cum delivery challan from Hosur (Tamil Nadu) containing a clause " subject to Chennai jurisdiction" but no part of cause of action has accrued in Chennai, therefore facts of the present case is distinguishable from the facts of the aforesaid case.
27. So far as U. Can Migrate Consultants Pvt Ltd case (supra) is concerned in that case parties has agreed to have their disputes resolved through courts at Canada, therefore Delhi court was held not to be having jurisdiction but in present case even though plaintiff has accepted invoices cum delivery challan issued from the factory of defendant containing Hosur clause of "subject to Chennai jurisdiction", no cause of action accrued at Chennai, therefore Chennai court cannot be conferred jurisdiction by the defendant. In Gopal Singh case it was held that head office of bank was at 20/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.
Delhi, therefore Delhi court has jurisdiction but in this case there was no 'exclusionary clause' as in the present case.
28. Therefore the outer clause in invoice cum delivery challan issued by defendant from its factory at Hosur itself cannot debar plaintiff from going to any other court except courts at Chennai, Cosequently, the preliminary issue is decided in favour of plaintiff and against the defendant. Accordingly, it is held that this court has jurisdiction to entertain the suit. This issue is disposed off accordingly.
Announced in Open Court today, (Dr. VIJAY KUMAR DAHIYA) i.e. on 15thday of February, 2016. ADJ(Central07/Delhi 15.02.2016 21/21 CS. No.97/2011 M/s SAV Engineers Vs M/s Easum Reyrolle Ltd.