Gujarat High Court
Ikon Associates vs M/S Gopinath Enterprise Private ... on 2 August, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20148 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 147 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 127 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
IKON ASSOCIATES
Versus
M/S GOPINATH ENTERPRISE PRIVATE LIMITED
==========================================================
Appearance:
LD.SR.ADV.MR.MIHIR THAKORE ASSISTED BY MS VIDHI J BHATT(6155)
for the Petitioner(s) No. 1,2
LD.SR.ADV.MR.DEVANG NANAVATI ASSISTED BY MR. PRANAV D
THAKKAR(8501) for the Respondent(s) No. 1
VIJAYKUMAR B LIMBACHIYA(8763) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 02/08/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. All the three petitions are preferred under Article 227 of the Constitution of Page 1 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 India challenging the order passed below Exhibit 1 dated 24.11.2021 by the Principal Senior Civil Judge, Kalol in different suits filed by the original respondent- plaintiff. As the factual as well the legal issues are identical, they are being decided by this common order, where the facts are drawn from the Special Civil Application No.20148 of 2021 for the purpose of adjudication. The parties shall be addressed as defendants (petitioners) and plaintiff (respondent) respectively. 1.1 Special Civil Suit No.60 of 2020 has been preferred against the defendants for recovery of Rs.5,91,71,513/- along with interest at the rate of Rs.3,21,06,723/- totaling Rs.9,12,78,236/- under the Page 2 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 provision of Order XXXVII of the Code of Civil Procedure, 1908 ('the CPC' hereinafter), praying for a decree for a total amount against the defendants. 1.2 The plaintiff company preferred an application for attachment before judgment under the provision of Order XXXVIII, Rule 5 of the CPC. The defendants filed a written statement inter alia denying and disputing the contents of the suits and also raising the preliminary objections as to the territorial jurisdiction of the Commercial Court, Kalol to adjudicate the said suit and during the course of hearing, the Commercial Court framed a preliminary issue of territorial jurisdiction as in the invoice raised by the plaintiff company, Page 3 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the jurisdiction of Ahmedabad was chosen. 1.3 The defendants have strongly argued that Commercial Court, Kalol does not have the territorial jurisdiction to try the suit. After hearing the parties, learned Principal Civil Judge, Kalol directed that the Court has jurisdiction to hear and try the suit and both the parties were ordered to proceed with the matter.
1.4 The certified copy of the order was made available on 17.12.2021 and hence, the present petition by the original defendants questioning the impugned order.
1.5 According to the defendants, Section 6 of the Commercial Courts Act, 2015 provides the jurisdiction of the Page 4 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Commercial Court which permits all suits and applications relating to the commercial dispute of a Specific Value arising out of the territory of the State over which has been vested territorial jurisdiction to try such suits and applications. Section 20 of the CPC provides that the suit to be instituted where defendants reside or cause of action arises. Therefore, it is urged that as the defendants reside in Hyderabad and are carrying on the business from Hyderabad as per clause (a) and (b) of the Section 20 of the CPC, the Commercial Court, Hyderabad would have jurisdiction. 1.6 Again, it is admitted that as per clause (c) of Section 20 of the CPC within the local limit of the jurisdiction of the Page 5 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Court, where the cause of action has arisen wholly or in part, the same would empower to entertain the matter. It is a bundle of facts which are necessary to be proved in a given facts.
1.7 It is further the say of the defendants that in the matter of contract there may arise the cause of action of various kinds. In a suit for damages for breach of contract, the cause of action consists of making of the contract and its breach so that the suit may be filed either at a place where the contract was made or at a place where it should have been performed and the breach occurred. The determination of the place where the contract was made is a part of law of Page 6 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 contract, but making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract.
1.8 It is emphatically urged that the Principal Civil Judge, Kalol does not have the territorial jurisdiction to adjudicate the present suit as the defendant No.1-Firm is registered and located in Hyderabad and the agreement was accepted to supply the goods on issuance of purchase order at Hyderabad. Furthermore, from Hyderabad the purchase orders were issued for supply of the products and the products were to be delivered in different districts coming in the State of Telangana. Therefore also, the cause of action has arisen at Hyderabad for Page 7 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 acceptance of contract to supply product and the further cause of action would arise in the State of Telangana where the goods were delivered. No cause of action has arisen within the territorial jurisdiction of the Commercial Court of Kalol. Hence, the order needs to be interfered with. 1.9 Moreover, it has been urged that in the invoice raised and produced by the plaintiff, parties have agreed to and have chosen the jurisdiction as Ahmedabad. As per the invoices, the money was payable at Ahmedabad, the defendants have made the payment through RTGS to the Bank specified in the invoice, which is situated at Ahmedabad. Thus, the part of cause of action has arisen at Ahmedabad, where money Page 8 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 was expressly payable as per the invoice.
Moreover, the very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement clear, where the contract itself specifies the jurisdiction of the Courts at a particular place and such Court shall have jurisdiction to deal with the matter. It is further emphasized that an inference can be drawn that the parties intended to exclude all other Courts and therefore, Section 6 of the Commercial Courts Act when read with Section 20 of the CPC, the Commercial Court at Kalol does not have jurisdiction. Therefore, the following prayers:
"27...
(A) Your Lordships be pleased to quash and set aside Page 9 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the impugned Order below Exhibit 1 dated 24.11.2021 passed by the Hon'ble Principal Senior Civil Court, Kalol in Special Civil Suit No.60 of 2020 holding it has jurisdiction to hear and try the subject suit; (B) Pending admission and final hearing of the present petition, Your Lordships be pleased to direct the Hon'ble Principal Senior Civil Judge,Kalol not to proceed further with the hearing of Special Civil Suit No.60 of 2020;
(C) Pending admission and final hearing of the present petition, Your Lordships be pleased to direct the Hon'ble Principal Senior Civil Judge, Kalol not to pronounce the order below exhibit 5 filed by the respondent-plaintiff under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908; and (D) Your Lordships be pleased to pass any other appropriate order, as deemed fit, in the interest of Page 10 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 justice."
2. Affidavit-in-reply on issuance of the notice has been filed by the plaintiff, where it is contended that the petition has been preferred with an intent to delay and derail the proceedings in Special Civil Suit No.60 of 2020 pending before the Civil Court, Kalol and with an object to obstruct and delay the pronouncement of the order in an Application below Order XXXVIII, Rule 5 of the CPC.
2.1 With respect to framing of preliminary issue of jurisdiction, it is contended that the trial Court concerned has suo moto raised a query with respect to the territorial jurisdiction as invoice is raised by the plaintiff containing the Page 11 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 jurisdictional Clause "Subject to Ahmedabad Jurisdiction". Both the parties were heard at length, and the order was passed on 24.11.2021 holding that the Kalol Court has jurisdiction to try the suit. According to the defendants, the present case falls under the purview of Commercial Courts Act, 2015 and the appeal can be filed under Section 13 of the Act before the Commercial Courts Division of the High Courts and therefore, this petition under Article 227 of the Constitution of India is not maintainable. Moreover, the defendants also filed an application on 28.07.2021 under Order VII Rule 11 of the CPC for rejection of the plaint, which also has been rejected. In that application, the defendants have not taken any ground with Page 12 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 respect to jurisdiction of Ahmedabad Court based on the clause mentioned in the tax invoice.
2.2 It is the say of the plaintiff that the defendants approached the respondent for availing supply of plastic material because the plaintiff is an
approved/authorised vendor for the State of Telangana, Andhra Pradesh and Karnataka. The plaintiff's registered office as well as factory both are situated within the territorial jurisdiction of the Court at Kalaol. Purchase orders were received at the address of plaintiff's factory as well as at the registered office located at Kalol. The payment from the defendants was also received at the factory address and Page 13 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the plaintiff is also maintaining the account of the defendants-company at the said address as per the provision of the Companies Act. All transactions between the parties have entered into within the territorial jurisdiction of village Santej, Taluka Kalol. The Axis Bank's main Branch where plaintiff's account is maintained is situated at Ahmedabad and the defendants made payment in Bank Account maintained in the said Bank at Ahmedabad through RTGS as per the tax invoice raised by the plaintiff to the defendants, wherein at the bottom a printed clause, "Subject to Ahmedabad jurisdiction" has continued inadvertently, which was in practice before shifting of the company to the jurisdiction of Kalol Court in the year 2014. In fact, after Page 14 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 shifting of defenant-company to Santej address, there ought to have been discontinuation of stationary which printed the clause "subject to Ahmedabad jurisdiction", which is no longer a correct jurisdiction for the case in hands.
Therefore, the said unilateral clause whether is sufficient to decide the
jurisdiction of the Ahmedabad Court shall need to be answered in negation. Various grounds are raised to urge as to why the tax invoices would not lend the jurisdiction to the Court at Ahmedabad. 2.3 It is further denied that there is any express consent or acceptance of plaintiff as regards the jurisdiction clause mentioned in the invoice. The Page 15 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 written statement thus makes it clear that the defendants on one hand denied that there is any contract between the parties with regard to maintaining the account for supplying the Tarpaulins during the period from 2015 to 2020 and on the other hand, have not denied that the defendants received the invoices raised by the plaintiff without any protest. According to the respondent-plaintiff, to their utter shock and surprise, the defendants have raised the query of territorial jurisdiction in reply to the attachment application filed under Order XXXVIII Rule 5 of the CPC. During the course of arguments before the trial Court, the defendants never stated that it had chosen the jurisdiction of Ahmedabad Court. For Page 16 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the first time, the objection to the territorial jurisdiction has been raised when the query was made by the Kalol Court in respect of the jurisdiction clause in the tax invoice. Moreover, as per the tax invoice, the GST registration is also falling within the purview of Kalol- Gandhinagar GST Division. There is no remotest connection to the Ahmedabad jurisdiction except the main Bank Branch of Axis Bank of the plaintiff having been situated at Ahmedabad.
2.4 Relying on various decisions, it is urged that any unilateral affirmation or a statement by one of the parties cannot be held to be an agreement to confer exclusive jurisdiction on any Court. More Page 17 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 particularly, when it is not a term accepted by the other side by way of an agreement. Various decisions have been relied upon to urge that the order of the trial Court is unassailable and in a recovery suit, the cause of action surely has arisen only in the territorial jurisdiction of the Civil Court at Kalol.
3. Affidavit-in-rejoinder to the affidavit-in-reply had been filed which may not be necessary further to be dilated where the gist is that the cause of action has arisen at Ahmedabad. In the invoice, the answering plaintiff has chosen, agreed and submitted to the jurisdiction of Ahmedabad and by making payments in Ahmedabad, the defendants have signified Page 18 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 their consent to be subjected to Ahmedabad jurisdiction which thus forms part of agreement between the parties, the Ahmedabad Court has jurisdiction to deal with the matter and jurisdiction of other Courts is excluded.
4. We have heard extensively the learned senior advocate, Mr.Mihir Thakore for the defendants assisted by the learned advocate, Ms.Vidhi Bhatt, who also tendered the written submissions and therefore, there will be no requirement to elaborate the submissions extensively made along the line of the memo of petition, gist of which is the exclusion of jurisdiction of all other courts in wake of payment made at main branch of Axis Bank pursuant to the Page 19 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 invoice raised by the plaintiff and the clause in specific having been incorporated to "Subject to jurisdiction of Ahmedabad Court". Authorities which have been relied upon are as follows:
(i) A.B.C. Laminart Pvt. Ltd. and Another vs. A.P.Ahencies, Salem, reported in (1990) 2 SCC 163
(ii) Swastik Gases Private Limited vs. Indian Oil Corporation Limited, reported in (2013) 9 SCC 32
(iii) S.Manuel Raj and Co. vs. J.Manilal and Co., reported in 1962 SCCOnline (Guj.) 30
(iv) Auto Movers vs. Luminous Power Technologies Pvt. Ltd., reported in (2021) SCC Online Del. 4287
(v) State of Gujarat vs. Union of India, Page 20 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 passed in SCA No.737 of 2018.
5. per contra, learned senior advocate, Mr.Devang Nanavati assisted by the learned advocate, Mr.Pranav Thakkar has also fervently made the submissions and the written note also to assist the cause has been tendered and the reiterative emphasize is of denial of any agreement between the parties of agreeing to exclusionary clause in respect of Ahmedabad Court.
5.1 Reliance is heavily made on the following authorities to substantiate the line of arguments.
(1) Om Prakash Srivastava VS. Union of India & Anr., reported in (2006) 6 SCC 207 (2) Economic Transport Organisation vs. Page 21 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 United India Insurance Co.Ltd., reported in 1985 SCC Online (Ker) 169 (3) Maria Munnisa Begum vs. Noore Mohammad Saheb, reported in AIR (1965) AP 231 (4) North Bengal Das Brothers Zemindary Co Ltd. vs. Surendranath Das, reported in MANY/WB/0307/1955 (5) Satyapal vs. Slick Auto Accessories Pvt. Ltd., reported in 2014 SCC Online Del 998 (6) Soniram Jeetmull vs. R.D.Tata & Co., reported in 1927 SCC Online PC 34 (7) Bharumal Udhomal vs. Sakhawatmal Veshomal and Ors., reported in 1955 SCC Online (Bom) 64 (8) State of Punjab vs. A.K.Raha, reported in AIR 1964 Calcutta 418 (9) R.S.D.V. Finance Co.Pvt. Ltd. vs. Shree Page 22 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Vallabh Glass Works Ltd., reported in (1993) 2 SCC 130 (10)Greentose PVT LTD vs. Gujarat Narmada Valley Fertilizers Co. Ltd., passed in Second Appeal No.154 of 2013.
Questions to be determined:
6. The moot question that requires the address is as to whether the Court at Kalol would have a jurisdiction for entertaining the suit for recovery initiated by the seller against the purchaser, seller, having the registered office at Kalol against the purchaser, based at Hyderabad or whether the Court at Ahmedabad would have exclusive jurisdiction in wake of the specific inclusion of the term of making payment at Axis Bank located in Ahmedabad and the clause added at the bottom of tax Page 23 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 invoice "Subject to Ahmedabad jurisdiction."
7. Yet, another question raised by the plaintiff is with regard to the maintainability of the present petition, which is preferred under Article 227 of the Constitution of India as according to the defendants, the suit has been preferred under the Commercial Court's Act and therefore, any challenge that needs to be made has to be under Section 13 of the Commercial Courts, Commercial Appellate Courts, Commercial Divisions and Commercial Appellate Divisions of High Courts Act, 2015.
Maintainability of Petition:
Page 24 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 7.1 Apt would be to firstly consider the aspect of maintainability of petition.
Section 13 of the Commercial Courts Act provides for appeals of Commercial Court below the level of District Judge from decrees of Commercial Court to the Commercial Appellate Court within 60 days and before the Commercial Appellate Division of the High Court from the Commercial Court at the level of District Judge in original jurisdiction:
"13. Appeals from decrees of Commercial Courts and Commercial Divisions.--[(1)Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil Page 25 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).] (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act."
7.2 Here, the order is of Commercial Court below the level of District Judge for Page 26 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 having been passed by learned Senior Civil Judge, Kalol and therefore, the appeal would lie before the Commercial Appellate Court and not under Article 227 of the Constitution of India nor even before the Commercial Appellate division of the High Court. This petition under Article 227 of the Constitution of India in wake of this efficacious remedy could not have been preferred. Powers under Article 227 of the Constitution of India would always be available with the Courts for keeping the Courts below within the bounds of its jurisdiction in case of apparent error or grave injustice but, its exercise shall need to be done ordinarily when alternative and effective statutory remedy is not available.
Page 27 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Jurisdiction Issue:
8.Territorial jurisdiction is governed under Section 20 of the Code of Civil Procedure which provides thus:
"20.Other suits to be instituted where defendants reside or cause of action arises.-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually, voluntarily resides, or carries on business, or personally work for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises." Page 28 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Whereas Section 6 of Commercial Courts Act's provides for jurisdiction by following definite law on the subject of territorial jurisdiction in a suit for damage for breach of contract deserves discussion at this stage.
9. In case of A.B.C. Laminart Pvt. Ltd. and Another (supra) the Apex Court has held that when parties transacted on the basis of a clause in the agreement, the clause must be deemed to have formed the part of the agreement and the parties would be bound by it. Validity of the clause will depend upon the validity of an agreement. It further holds that where in a suit for damages for breach of contract when question arises of cause of action, making Page 29 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 of the contract is a part of a cause of action and a suit on contract can therefore be filed at the place where it was made. This decision further holds that when the Court has to decide the question of jurisdiction pursuant to an ouster clause what is necessary to be construed is the oust expression or clause to see whether there is an ouster of jurisdiction of other Courts. If such clause is unambiguous and specific, the same would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. When words like "alone", "only", "exclusive" and the "like" have been used there is no difficulty, but even without such words in appropriate cases the 'maxim expressio unius est Page 30 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 exclusio alterius' meaning-expression of one is the exclusion of another shall need to be applied. It is quite clear that there shall need to be a specified jurisdiction in a contract where an intention has to be clear or excluding all others from its operation.
8.1 Profitably the findings and observations of the Apex Court would need to be reproduced.
"11. The jurisdiction of the court in matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors.
12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to Page 31 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
13. Under Section 20 (c) of the Code of Civil Procedure subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier Section 7 of Act 7 of 1888 added Explanation III as under : Page 32 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Explanation III.-In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely:
(1) the place where the contract was made; (2) the place where the contract was to be performed or performance thereof completed;
(3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.
14. The above Explanation III has now been omitted but never theless it may serve as a guide. There must be a connecting factor.
15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of, its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part Page 33 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under at Page 34 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the court where the suit is filed and that contract is found to be invalid, such part of cause of action disappeared. The above are some of the connecting factors.
16. So long as the parties to a contract do not oust the jurisdiction of all the courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the court. If under the law several courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. 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 Page 35 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy. Would this be the position in the instant case?
17. In S. Manuel Raj & Co. v. J. Manilal & Co. where one of the parties to the contract signed an order form printed by the other party containing the words "subject to Madras jurisdiction" and sent the order form to the other party it was held that the party must be assumed to have agreed that Madras was the place for settlement of the dispute and it was not open to that person who signed the order form of the opposite party containing the printed words to show that printed words were not part of the contract and that those words in the contract was to exclude the jurisdiction of other courts and to keep solę jurisdiction to one court. It was observed that jurisdiction to one court. It was observed that the object of printing such words, as "subject to Madras jurisdiction" in the contract was to exclude the Page 36 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 jurisdiction of other courts and to give sole jurisdiction to one court and it was in consonance with the commercial practice in India. Similarly in Sri Rajendra Mills v. H. V. M. Hazi Hassan Dada where there was a contract between the plaintiff and defendant under which the parties agreed that all suits arising on or out of the contract, would be instituted in the court at Salem, the Division Bench held that it was true that the suit could have been instituted either at Salem or at Howrah under Section 20(c) of the Code of Civil Procedure, as the cause of action, admittedly arose in part in both the places and it was therefore a case where two courts had concurrent jurisdiction and, in such a case, it was open to the parties to make a choice restricting the court in which the suit under or upon the contract could be instituted. In other words, both the courts having territorial jurisdiction, the parties by their agreement waived their right, to institute any action, as aforesaid except at Salem. It was observed that under those circumstances it was not open to the plaintiff to Page 37 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 object to the order for return of the plaint for presentation to the court at Salem as the choice of forum in case of alternative forums lies with the plaintiff and the plaintiff having debarred or precluded itself from going to any other court except at Salem which would be a proper court as against the defendants it would not be just to allow the plaintiff at the instance of any other party or under cover of its objection to institute the suit except in the court at Salem.
18. In Hakam Singh v. M/s Gammon (India) Ltd. the appellant agreed to do certain construction work for the respondent who had its principal place of business at Bombay on the terms and conditions of a written tender. Clause 12 of the tender provided for arbitration in case of dispute. Clause 13 provided that notwithstanding the place where the work under the contract was to be executed the contract shall be deemed to have been entered into by the parties at Bombay and the court in Bombay alone shall have jurisdiction to adjudicate upon. On dispute arising between the parties the appellant Page 38 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 submitted a petition to the court at Varanasi for an order under Section 20 of the Arbitration Act, 1940 that the agreement be filed and an order of reference be made to an arbitrator or arbitrators appointed by the court. The respondent contended that in view of the clause 13 of the arbitration agreement only the courts at Bombay had jurisdiction. The trial court also held that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the courts at Bombay which they did not otherwise possess. The High Court in revision held that the courts at Bombay had jurisdiction under the general law and hence could entertain the petition and that in view of clause 13 of the arbitration agreement the petition could not be entertained at Varanasi and directed the petition to be returned for presentation to the proper court. On appeal therefrom one of the questions that fell for consideration of this Court was whether the courts at Bombay alone had jurisdiction over the dispute. It was held that the Code of Civil Procedure in its entirety applied to Page 39 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 proceedings under the Arbitration Act by virtue of Section 41 of that Act. The jurisdiction of the court under the Arbitration Act to entertain a proceeding for filing an award was accordingly governed by the provisions of the Code of Civil Procedure. By the terms of Section 20(a) of the Code of Civil Procedure read with Explanation II thereto the respondent company which had its principal place of business at Bombay was liable to be sued at Bombay. It was held that it was not open to the parties to agreement to confer by their agreement jurisdiction on a court which did not possess it under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try the suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts was not contrary to public policy and such an agreement did not con travene Section 28 of the Contract Act. Though this case arose out of an arbitration agreement there is no reason why the same rule should not apply to other agreements insofar as jurisdiction is concerned. Page 40 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Without referring to this decision a Division Bench of the Madras High Court in Nanak Chand Shadurain v. T. T. Elect. Supply Co. observed that competency of a court to try an action goes to the root of the matter and when such competency is not found, it has no juris diction at all to try the case. But objection based on jurisdiction is a matter which parties could waive and it is in this sense if such jurisdiction is exercised by courts it does not go to the core of it so as to make the resultant judgment a nullity. Thus it is now a settled principle that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen there within, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clear. unambiguous and explicit and not vague it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute. Mercantile law and practice permit such agreements. Page 41 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
19. In Naziruddeen v. P.A.Annamalai the question was whether Rule 35 of U.P.State Lottery Rules, 1969 confined the jurisdiction only to Lucknow. The rule said:
"35. Legal jurisdiction in all matters concering the State lottery shall be Lucknow."
The sole question for consideration therefore was whether the above rule had the effect of vesting exclusive jurisdiction only in the courts in Lucknow and thereby taking away the jurisdiction which the sub ordinate judge court at Vellore could have if it was established that the lottery ticket was stolen within the jurisdiction of that court from the first respondent. Held, it was well established that the jurisdiction of a civil court can be taken away only by an express provision or by necessary implication and ousting of a jurisdiction of civil court should not and ought not be inferred from an ambiguous provision. In that particular case it was common case of the parties that Rule 35 did not expressly take away the jurisdiction of any other court, and vest the exclusive jurisdiction only in the courts at Lucknow. A note of Page 42 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 caution was sounded by M. P. Thakkar, J. as he then was, in Snehalkumar Sarabhai v. E. T. Orgn. observing that the ouster clause could operate as estoppel against the parties to the contract, but it could not tie the hands of the court and denude it of the powers to do justice. Ordinarily, it was observed that the courts would respect the agreement between the parties which was borne out of the meeting of their minds out of consideration of convenience, but the courts were not obliged to do so in every case; and that a new approach to the question deserved to be made where the ouster clause was "calculated to operate as an engine of oppression and as a means to defeat the ends of justice". In such a case the free consent may be wanting and injustice may be avoided.
20. When the court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made as a particular place. This would Page 43 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 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, ipso facto take away jurisdiction of other courts. Thus, in Salem Chemical Industries v. Bird & Co. where the terms and conditions attached to the quotation contained an arbitration clause provided that: "any order placed against this quotation shall be deemed to be a contract made in Calcutta and any dispute arising therefrom shall be settled by an arbitrator to be jointly appointed by us", it was held that it merely fixed the situs of the contract at Calcutta and it did not mean to confer an exclusive jurisdiction on the court at Calcutta, and when a part of the cause of action had arisen at Salem, the court there had also jurisdiction to entertain the suit under Section 20(c) of the Code of Civil Procedure.
21. From the foregoing decisions it can be reasonably deduced that where such 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 Page 44 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 specific accented 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."
9. In case of Swastik Gases Private Limited (supra) the Apex Court was considering the question whether in view of Clause 18 of the consignment agency Page 45 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 agreement, the Calcutta High Court had exclusive jurisdiction in respect of the application made by the appellant under Section 11 of the Arbitration and Conciliation Act, 1996.
9.1 The plaintiff company was engaged in the business of storage, distribution of petroleum products and also manufactured and marketed various types of lubricating oils, grease, fluid and coolants. It appointed the appellant, M/s. Swastik Gases Private Limited situated at Jaipur in Rajasthan as the consignment agent. An agreement was entered into between the appellant and the plaintiff whereby the defendant, who was to act as an agent for marketing lubricants at Jaipur (Rajasthan). Page 46 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 There were divergent stands of the parties in respect of the place of signing the agreement. The dispute arose between the parties as huge quantity of stock of lubricants could not be sold by the appellant. When they could not resolved amicably, the arbitration clause was necessary to be invoked and hence, an application was made by the appellant before the Rajasthan High Court for appointment of an arbitrator where plea of lack of territorial jurisdiction of the Rajasthan High Court was raised.
9.2 The Apex Court has held that the very existence of the exclusion of
jurisdiction clause in the agreement would be rendered meaningless where it not given Page 47 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 its natural and plain meaning. The use of words like "only", "exclusively", "alone" and "so on" are not necessary to convey the intention of the parties in an exclusion of jurisdiction clause of an agreement. The Apex Court held that 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. The Apex Court held that the Courts in Kolkata had jurisdiction to entertain the disputes between the parties.
9.3 Apt would be to reproduce the relevant findings and observations of the Apex Court.
Page 48 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 "29. When it comes to the question of territorial jurisdiction relating to the application under Section 11, besides the above legislative provisions, Section 20 of the Code is relevant. Section 20 of the Code states that subject to the limitations provided in Sections 15 to 19, every suit shall be instituted in a court within the local limits of whose jurisdiction:
(a) the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part arises. Page 49 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
30. The Explanation appended to Section 20 clarifies that a corporation shall be deemed to carry on business at its sole or principal office in India or. in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, the Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of Clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other Page 50 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 words, whether in view of Clause 18 of the agreement, the jurisdiction of the Chief Justice of the Rajasthan High Court has been excluded?
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 Page 51 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 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 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.
33. The above view finds support from the decisions of this Court in Hakam Singh, A.B.C. Laminart, R.S.D.V. Finance, Angile Insulations, Shriram City, Hanil Era Textiles and Balaji Coke.
34. In view of the above, we answer the question in the affirmative and hold that the impugned order does not suffer from any error of law. The civil appeal is, accordingly, dismissed with no order as to costs. The Page 52 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 appellant shall be at liberty to pursue its remedy under Section 11 of the 1996 Act in the Calcutta High Court."
10. In case of S.Manuel Raj and Co.(supra) the revision was preferred by the original defendants. The plaintiffs placed an order on a printed form of the defendants on which it was printed in bold types "Subject to Madras Jurisdiction". An order form was signed by the plaintiffs and sent to the defendants. The contention was rejected by the learned judge of the small causes court that the Madras High Court alone had jurisdiction. The defendants, therefore, preferred the revision where the main contention urged was that the Madras High Court has jurisdiction in view of the fact that the order form signed by the Page 53 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 plaintiffs contained the bold types "subject to Madras jurisdiction" and it is also underlined in the print. It was argued that it must be taken that the plaintiffs agreed to the term that only the Madras High Court would have jurisdiction when the order form was signed by the plaintiffs. The opponents contended that these words "subject to Madras jurisdiction" would not mean that Madras High Court alone would have jurisdiction. This Court held that when one of the parties to a contract signs a printed form printed by the other party and sends the order form to the other party it must be assumed that party agreed to the place for settlement of the dispute. It is not for a person, who signs an order form of the opposite party containing the Page 54 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 printed words to say that the printed words are not part of the contract.
10.1 Profitably the findings and observations of the Apex Court would need to be reproduced.
"4. When one of the parties to a contract signs a printed form printed by the other party containing the words "subject to the jurisdiction of a place Q" and sends the order form to the other party it must be assumed that that party agreed that Q is the place for the settlement of disputes. It is not open to a person who signs an order form of the opposite party containing the printed words to say that the printed words are not part of the contract. To take the view taken by the learned Judge of the Madras High Court would be to upset the commercial practice of India, and unless such a position is necessary in view of the wording of any particular section, I am not prepared to take that view. I am not prepared to upset the commercial practice of India unless the law requires me to Page 55 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 do so. There is nothing in the law to hold that the expression "subject to jurisdiction of Q" printed at the top of a form may not bind M who signed the order form.
5. The learned counsel for the opponent has relied on Section 3 of the Indian Contract Act, which reads as follows:
"The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it." This section of the Contract Act must be given effect. On this point Mulla has observed as follows: "English authorities have established that the first point to be considered is whether the nature of the transaction is such that the person accepting the document may suppose, not unreasonably, that the Page 56 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 document contains no terms at all, but is a mere acknowledgment of an agreement not intended to be varied by special terms (per Stephen, J. in Watkins v. Rymill, (1883) 10 QBD 178, (at p. 189) In short is the ticket a contract or a mere receipt? In Chapelton v. Barry U.C., (1940) 1 KB 532, P took a deck-chair from a pile near a notice reading "Hire of Chairs 2 d. per session of 3 hours." The notice asked hirers to obtain a ticket from D's attendant, and retain it for inspection. P obtained a ticket, pocketed it unread, sat on the chair and was injured when it collapsed. D relied on a provision on the ticket excluding liability, but the Court of Appeal held for P on the ground that the ticket was not a contractual document.
If the defendant has established that the document was contractual, he must further prove that he did what was reasonably sufficient to give the plaintiff notice of the conditions. This is a question of fact. (In Henderson v. Stevenson, (1875) LR 2 Sc. and D. 470, Page 57 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 where an endorsement on a steamboat ticket was not referred to on its face, and Richardson, Spence and Co. and Lord Gough S.S. Co. v. Rowntree, (1894) AC 217, where the ticket was folded up so that no writing was visible without opening it, a finding of fact that the passenger knew nothing of any conditions was supported. The correct form of putting the question of fact was laid down by the C.A. in Parker v. South Eastern Rly. Co., (1877) 2 CPD 416. See Madras Railway Co. v. Govinda Rau, ILR 21 Mad 172 (at p. 174), and for a general summary of the law, Hood v. Anchor Line, (1918) AC 837, where both the contract and a notice on the envelope enclosing it pointedly called attention to the conditions. Failure to read is no excuse; Sheik Dawood v.
S.I. Ry. Co. Ltd., ILR (1945) Mad 174 (AIR 1944 Mad
444). In an English case, inability to read has been held to be no excuse; Thompson v. L.M. and S. Ry. Co., (1930) 1 KB 41 (Infra). It has been held that there is sufficient notice, if the face of a railway ticket refers to conditions on the back, which are not expressly reproduced, but Page 58 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 incorporated by a reference to the time-tables of the railway Company: (1930) 1 KB 41. But the passenger is not bound by a purported exemption from liability, if the ticket is printed in such a way or delivered to him in such a state, as not to give reasonable notice on the face of it that it does embody some special conditions: Sugar v. L.M. and S. Ry., (1941) 1 All ER 172. (Here the words "for conditions see back" were obliterated by the date stamp on the ticket) In determining these questions the class of persons to whom the special conditions are offered, and the degree of intelligence to be expected of them, may properly be taken into account. (See Lord Ashbourne's remarks in (1894) AC 217 (supra)."
6. It is the contention of the learned counsel for the opponents that only the part at the bottom of the order form contains the conditions of the contract and not the words printed at the top. This contention is that the Page 59 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 words "subject to Madras jurisdiction" are not a part of the contract but the rest of the document contains the terms of the contract. It is not their case that the printed form does not evidence the contract. It is conceded that the contract is contained in the document, namely, the order form. From the English cases cited by Mulla above, it would be clear that the words printed at the top would be a part of the contract and would be binding on the plaintiffs who have signed the order form. This is not a case of a ticket or a receipt taken by the plaintiffs but this is a case of an order placed by the plaintiffs themselves on a form signed by them and whatever is contained in the form would be binding on them in view of the signature on the form. It was easy for the plaintiffs to strike out the words "subject to Madras jurisdiction"
before signing it. As they did not do so, these words are binding on the plaintiffs.
7. It is next contended that the words do not mean that the jurisdiction of other Courts is excluded. Under the law Page 60 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 of Contract, certain Courts have jurisdiction, and it is with a view to exclude other Courts that the words like "subject to Bombay jurisdiction," "subject to Madras jurisdiction" and so on are written in printed forms. The object of printing such words in the contract is to exclude the jurisdiction of other Courts and to give sole jurisdiction to one Court With respect I find it difficult to agree with the View taken by the learned Judge of the Madras High Court, I am not prepared to upset the commercial practice of India."
10.1 The Gujarat High Court on the ground that there is no reason for upsetting the commercial practice of India when the object of printing such words in the contract is to exclude the jurisdiction of other Courts and to give sole jurisdiction to one Court, it had accepted the version of the original defendant and the revision Page 61 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 was allowed.
11. The Delhi High Court in case of Auto Movers (supra) was considering the question of jurisdiction which was raised as a preliminary issue. Referring to section 20 of the CPC, the Court held that the part of cause of action has arisen also on account of the payment made by the defendant directly into the Bank account of the respondent/plaintiff and even if, these were not on regular basis since there is nothing to show that the place of payment had been fixed, even without following the principle that the 'debtor must seek out the creditor', the Delhi Courts would have jurisdiction to try the suit and the invoice does not vest jurisdiction in a Page 62 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 court which has no jurisdiction at all. 11.1 Profitably the findings and observations of the Apex Court would need to be reproduced.
"13. This issue was treated as a preliminary issue. The respondent/plaintiff in para No. 23 of the plaint averred that the invoices raised by the respondent/plaintiff were "subject to jurisdiction of court of Delhi only" and payments were also to be made in the jurisdiction of New Delhi and the cheque, which had been dishonoured was also to be received and realized in New Delhi. It was further stated that in the light of the established rule of law that in case of goods sold and delivered, the suit for its price will lie where the same is to be paid. It is on this basis that the respondent/plaintiff stated that the Delhi courts had jurisdiction to try the suit. In para No. 17 of the written statement, however, the petitioner/defendant submitted that the 'doctrine of election' could not be applied to the present case Page 63 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 inasmuch as, no cause of action had arisen in Delhi. According to the petitioner/defendant, the order for supply of the goods was placed at Kolkata Regional Office of the respondent/plaintiff. Invoices were raised from that office and the blank cheques towards security were received by the Kolkata Office. Further, the goods were supplied by the respondent/plaintiff at Suri, Birbhum, West Bengal. Therefore, the clause "subject to jurisdiction of court of Delhi only" was inconsequential.
14. Section 20 of CPC governs the jurisdiction and reads as under: "Section 20. Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or Page 64 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution;
or (c) The cause of action, wholly or in part, arises."
15. Section 20 clearly provides that a court within whose local limits the cause of action, "wholly or in part", arises, would have territorial jurisdiction to try the suit. Admittedly, the registered office of the petitioner/defendant is at N.S. Bose Road, Post Suri, Birbhum, West Bengal-731101. The learned counsel for the petitioner/defendant submitted that the invoice itself recorded a Kolkata address. The warehouse was also stated to be located at Kamahati, Panihati, West Bengal and therefore, the goods were neither dispatched from Page 65 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Delhi nor the invoices were raised at Delhi. On the other hand, learned counsel for the respondent/plaintiff pointed to the "subject to jurisdiction of court of Delhi only"
clause in the invoices. There does not appear to have been any demurrer by the petitioner/defendant against this clause.
16. Thus, on two counts, under Section 20 of CPC, there is some strength in the contention of the respondent/plaintiff that on the basis of the 'place of work' of the petitioner/defendant, as well as the part cause of action of supply of goods, both reflect jurisdiction of the West Bengal courts. However, the respondent/plaintiff has also claimed that payments were to be received in Delhi and therefore, part cause of action has arisen in Delhi and as such, the clause in the invoices referred to hereinabove did not confer jurisdiction at a place which had no jurisdiction.
17. In its reply to the present petition, the respondent/plaintiff has submitted that in relation to a Page 66 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 claim for the price of the goods sold and delivered, the suit is to be filed where the payments were to be made. Further, a debtor had to seek the creditor. It was claimed that the Cheque No. 170120 dated 17th May, 2012 for a sum of Rs. 28,48,947/- had been delivered by the petitioner/defendant to the respondent/plaintiff at the Delhi office and the petitioner/defendant knew well that the cheque would be deposited by the respondent/plaintiff at the Delhi Branch. The criminal complaint under Section 138 of N.I. Act was filed in Delhi. The bank statements of the respondent/plaintiff also clearly depict that the petitioner/defendant had made direct payments to the respondent/plaintiff into its account with ICICI Bank at J- 12/18, Rajouri Garden, New Delhi-110027. Thus, when on facts and in law, the suit could be filed at Delhi, the learned Trial Court had not committed any error in answering the preliminary issue in favour of the respondent/plaintiff.
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18. What is to be noticed here is that these averments of previous payments being made directly into the bank account of the respondent/plaintiff at Delhi, have not been denied by the petitioner/defendant. In its rejoinder, it has dismissed this averment by saying that "accidental" or "even regular deposits of cheques" for "encashment at a branch of respondent's choice cannot clothe the court with territorial jurisdiction". But, this would fortify the claim of the respondent/plaintiff that the invoices did not vest jurisdiction in a court that had no jurisdiction at all.
19. The learned Trial Court has followed the decision of this court in Satyapal (supra) that where the place of payment has not been fixed, as appears to be the case here, payment was to be made at the place of the creditor i.e., at Delhi in the present case. The learned Trial Court has not misdirected itself in following the said judgment. The contention of the learned counsel for the petitioner/defendant that Satyapal (supra) was decided in the manner it did, only because the contract was entered Page 68 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 into at Delhi and the orders were placed at Delhi, is not wholly correct, inasmuch as this court had quoted with approval, the judgment of the learned Trial Court, which clearly held that in cases where the place of payment was not specified in the contracts/bills/invoices, parties had to follow the general rule that the payment had to be made at the place of the creditor.
20. As held by the Supreme Court in Surya Dev Rai (supra), the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within the bounds of their jurisdiction. It is only when the courts below have assumed jurisdiction which they do not have or have failed to exercise the jurisdiction vested in them, that powers under Article 227 of the Constitution of India ought to be exercised. No error is manifest and apparent on the face of the impugned order nor does it cause a grave injustice nor gross failure of justice has been occasioned thereby. Page 69 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 There is no occasion, therefore, to interfere with the impugned decision of the learned Trial Court.
21. Before concluding, reference is made to the decisions relied upon by the learned counsel for the petitioner/defendant. The decision of the Karnataka High Court in Base Corporation Ltd. v. Amrutha Power Corporation, [judgment dated 25th September, 2018 in MFA 6564/2011] is not applicable as it relates to the vesting of jurisdiction in a court which otherwise did not have such jurisdiction. That is not the case here. In Shridhar Vyapaar (supra), the payments were made through RTGS into the bank at Kolkata whereas, in the present case, such payments were made into the account maintained by the respondent/plaintiff at ICICI Bank at Rajouri Garden, New Delhi. The decision in Mountain Mist Agro India (supra) was in relation to the N.I. Act and is not relevant for the determination of territorial jurisdiction in civil matters. Similarly, the decision of the Punjab High Court in Piyara Singh v. Bhagwan Das, 1950 Page 70 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 SCC OnLine Punj 108 is limited to the inapplicability of the principle 'debtor seeking the creditor' under the N.I. Act.
22. When, in the present case, the part cause of action has arisen also on account of the payments made by the petitioner/defendant directly into the bank account of the respondent/plaintiff, even if these were not on regular basis, since there is nothing to show that the place of payment had been fixed, even without following the principle that the 'debtor must seek out the creditor', it is clear that the Delhi Courts have jurisdiction to try the suit and the invoice does not vest jurisdiction in a court which had no jurisdiction at all."
12. In case of R.S.D.V. Finance Co.Pvt. Ltd. vs. Shree Vallabh Glass Works Ltd. (supra) the issue again was in respect of jurisdiction where the appellant R.S.D.V. Finance Company Limited filed a summary Page 71 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 suit against the respondent Shri Vallabh Glass Works Limited in the original civil jurisdiction of the High Court. As per the case of the plaintiff, it had deposited a sum of Rs.10,00,000/- with interest with the defendant for a period of 90 days and it was given to the defendant company through cheque in the Bank account of the defendant at Bombay. The deposit receipt contained an endorsement to the effect 'Subject to Anand jurisdiction'. The date of maturity of the amount was on 03.10.1983. When the defendant failed to pay the amount of Rs.10,00,000/- and requested the plaintiff to continue the said deposit till the end of November, 1983 and it also handed over to the plaintiff five post dated cheques drawn on a Bombay Page 72 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 bank. Thereafter, the defendant issued a cheque for a sum of Rs.22,288.32/- by way of interest on the said amount of Rs.10,00,000/- in favour of the plaintiff payable in Bombay. The five cheques for payment were submitted, but the same were dishonored because of "insufficient funds". These five post dated cheques each one was drawn on a Bombay Bank.
12.1 The summary suit was filed for the principal amount and interest at the rate of 90% with 90 days rests. The endorsement 'Subject to Anand Jurisdiction' was raised as a contention in the written statement and the Bombay High Court was averred not to have jurisdiction to entertain the suit. According to the plaintiff, it never agreed Page 73 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 to the condition of the Anand jurisdiction made on the deposit receipt. However, that contention was accepted and since the suit was based on five post dated cheques and the cheques were being payable in Bombay, the Court at Bombay was said to have jurisdiction. The High Court at Bombay had already granted leave to the plaintiff under clause XII of the Letters Patent. The money was deposited by the plaintiff with the defendant at Bombay in defendant's account in the Bank of Baroda, Nariman Point Branch, Bombay. The cheques of repayment of the deposit were given by the defendant drawn on Bank of Baroda, Nariman Point Branch, Bombay.
12.2 On an appeal by the defendant, the Page 74 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Division Bench of the Bombay High Court held that the leave granted under clause XII of the Letters Patent must be revoked and it must be held that the Bombay High Court had no jurisdiction to entertain and try the suit.
12.3 Aggrieved against the judgment of the Division Bench of the Bombay High Court, the plaintiff came in appeal before the Apex Court. The defendant company had a Branch Office and also carried on business in Bombay. It also admitted the leave to sue under Clause XII of the Letters Patent was given by the Bombay High Court. The Apex Court considered the effect of the endorsement 'Subject to Anand jurisdiction' made on the deposit receipt issued by the Page 75 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 defendant. The Apex Court also held that in the facts and circumstances of this case it cannot be disputed that the cause of action had arisen at Bombay as the amount of Rs.10,00,000/- itself was paid through a cheque of the Bank at Bombay and the same was deposited in the Bank account of the defendant in the Bank of Baroda at Nariman Point Bombay. The five post dated cheques were also issued by the defendant being payable to the plaintiff at Bombay. The endorsement 'Subject to Anand jurisdiction' has been made unilaterally by the defendant while issuing the deposit receipt that did not contain the ouster clause using the words like 'alone', 'only', 'exclusive' and the "like". Therefore, on the ground that the the maxim 'expressio unius est excusio Page 76 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 alterius' cannot be applied and it cannot be held that merely because the deposit receipt contained the endorsement 'Subject to Anand jurisdiction' it excluded the jurisdiction of all other Courts. As per the view taken by the Apex Court in case of A.B.C Laminart Pvt. Ltd. (supra).
13.In case of Om Prakash Srivastava (supra) the question was of invocation of the jurisdiction of the High Court. The appellant filed a Writ Petition before the Delhi High Court which refuse to consider by holding that though it may have jurisdiction to deal with the grievances of the appellant, but this could be more effectively dealt with by the Allahbad High Court. The Apex Court held that the Page 77 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 question whether or not cause of action wholly or in part for filing a writ petition had arisen within the territorial jurisdiction of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. The writ petitioner-defendant has to establish to maintain the writ petition that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the plaintiff within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof. In the matter before the Apex Court it held that the Delhi High Court had not dealt with the question as to Page 78 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 whether it had jurisdiction to deal with the writ jurisdiction. It only observed that it may have jurisdiction, but the issue is relating to conditions of prisoners in the State of U.P. can be more effectively dealt with by the Allahabad High Court. It was open for the Delhi High Court to say that no part of the cause of action arose within the territorial jurisdiction of the Delhi High Court, however, it did not say so. On the contrary, it says that jurisdiction may be there, but the Allahabad High Court can deal with the matter more effectively. That was not found to be a correct way to deal with the writ petition. Accordingly, the order was set aside.
Page 79 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 13.1 Findings and observations of the Apex Court reiterating well laid down law are as follows.
"9.By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit.
10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment.
11. It is settled law that "cause of action"
consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act Page 80 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise.
12.The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action".
13. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more Page 81 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit.
14. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. Page 82 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
15. In Halsbury Laws of England (Fourth Edition) it has been stated as follows:
"Cause of action has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
16. As observed by the Privy Council in Payana v. Pana Lana (1914) 41 IA 142, the rule is directed to securing Page 83 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action or different causes of action, even though they arises from the same transaction. One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions.
17. It would be appropriate to quote para 61 of the said judgment, which reads as follows:
"61.(1) The correct test in cases falling under Order 11 Rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit."
(2) The 'cause of action' means every fact which will be necessary for the plaintiff to prove it tranversed to order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. Page 84 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 (4) The causes of action in the two suits may be considered to be away if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers ... to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. This observation was made by Lord Waston in a case under Section 43 of the Act of 1882 where plaintiff made various claims in the same suit."
14. In case of State of Gujarat vs. Union of India, passed in Special Civil Application No.737 of 2018 the question which was raised before the Court in a petition under Article 227 of the Constitution of India was whether Section 8 of the Commercial Courts Act affects the powers of the High Court under Article 227 Page 85 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 of the Constitution of India. On extensive consideration of the decisions of the Apex Court including in case of Surya Dev Rai vs. Ram Chander Rai And Others, reported in (2003)6 SCC 675 and of Shalini Shyam Shetty And Another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 and other decisions, this Court had held that bar contained under Section 8 of the Commercial Courts Act shall not affect the jurisdiction of the High Court under Article 227 of the Constitution of India. It went to an extent of same that if the contention on behalf of the plaintiff that considering Section 8 of the Commercial Courts Act, the writ jurisdiction under Article 227 of the Constitution of India is barred, it accepted such a provision would Page 86 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 suffer from the vice of unconstitutionality as observed by the Apex Court in these decisions. The power vested in the High Courts to exercise judicial superintendence over the decisions of the courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution and no legislature can take away such power of superintendence conferred under Article 227 of the Constitution of India.
15. In case of Rajasthan High Court Advocate's Association vs. Union of India and others, reported in (2001) 2 SCC 294 the question of jurisdiction of the Court and the meaning of cause of action had been considered by the Apex Court to hold thus: Page 87 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 "17. The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in cause of action.
It has to be left to be determined in each individual case as to where the cause of action arises. The Chief Justice of the High court has not been conferred with the legislative competence to define cause of action or to declare where it would be deemed to have arisen so as to lay down artificial or deeming test for determining territorial jurisdiction over an individual case or class of cases. The permanent bench at Jaipur has been established by the Presidential Order issued under sub-section (2) of Section 51 of the Act. The territorial jurisdiction of the permanent bench at Jaipur is to be exercised in respect of the cases arising in the specified districts. Whether the case arises from one of the specified districts or not so as to determine the jurisdictional competence to hear by Page 88 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 reference to territory bifurcated between the principal seat and the bench seat, shall be an issue to be decided in an individual case by the judge or judges hearing the matter if a question may arise in that regard. The impugned explanation appended to the Order of the Chief Justice dated 23rd December, 1976 runs counter to the Presidential Order and in a sense it is an inroad into the jurisdiction of the judges hearing a particular case or cases, pre-empting a decision to be given in the facts of individual case whether it can be said to have arisen in the territory of a particular district. The High Court is right in taking the view which it has done.
18. It was submitted at the end by the learned counsel for the appellant that the Division Bench of the High Court in its impugned order has observed that the permanent bench at Jaipur shall have exclusive jurisdiction to hear the cases arising out of the 11 specified districts and the High Court at Jodhpur shall not have jurisdiction to hear those cases which fall within the territorial jurisdiction of Jaipur Bench. He submitted that the use of word exclusive pre-fixed to jurisdiction is uncalled for. We find no substance in this contention as well. The purpose of the Presidential Order is to carve out and define territorial jurisdiction between the principal seat at Jodhpur and the permanent bench seat at Jaipur. The cases are to be heard accordingly unless the Chief Page 89 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Justice may exercise in his discretion the power vested in him by the proviso to para 2 of the Presidential order. Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court. Although the said clauses do not deal with principal seat or permanent bench of any High Court but in our opinion, there is no reason why the principle underlying thereunder cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and permanent bench seat of any High Court. In case of a dispute arising whether an individual case or cases should be filed and heard at Jodhpur or Jaipur, the same has to be found out by applying the test from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution."
16. In case of Economic Transport Organisation (supra) the issue that arose before the Munsiff's Court, Kozhikode in Kerala was whether the court had territorial jurisdiction to try the suit. The Court answered the issue in favour of Page 90 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the plaintiffs, which was challenged before Kerala High Court in revision. The plaintiff consigned goods from Calicut to Sohranpur for carriage by the defendants revisionist, who constituted a transport undertaking. Consignment was not delivered at the destination and the goods had been insured with the first plaintiff. Insurer paid value of the goods to the second plaintiff and both of them filed the suit for recovery of damages from the transport undertaking. Head Office of the transport was at Calcutta, contract was entered into and the Branch Office of the transport undertaking was also situated at Calicut within the jurisdiction of the Munisiff's Court, Calicut. Consignment was to be delivered at a place within the Page 91 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 jurisdiction of Kerala Court. There was no dispute that part of the cause of action arose within the jurisdiction of two courts and both the Courts had jurisdiction to entertain and try the suit for damages. The defendant's Branch Office was situated within the jurisdiction of Calicut Court and therefore, the Calicut Court also had jurisdiction.
16.1 Thus, the plaintiffs had choice of forums and they had exercise their choice. The trial Court had found that it had not been proved that the parties had entered into a binding contract ousting the jurisdiction of the Calicut Court and choosing the exclusive jurisdiction of the Calcutta Court. This was the finding which was assailed by the revisionist Page 92 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 petitioners. The agreement between the parties in the case is said to be contained in the consignment note given by the transport undertaking to the second plaintiff. Note had been prepared which was in a printed form containing various columns. At the bottom of the first page, the three sentences were printed and the third sentence reads: "Subject to Cacutta jurisdiction only". According to the revision petitioners, this amounts to agreement between the parties ousting jurisdiction of the Calicut court and investing exclusive jurisdiction in Calcutta High Court.
16.2 This was rebutted by the plaintiffs and had been rejected by the court below. Therefore, the question that arose for Page 93 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 consideration was whether the printed words in small letters at the bottom of the first page of the consignment note "subject to Calcutta jurisdiction only" would constitute the term of agreement between the parties.
16.3 After considering number of cases, the Kerala High Court held that when there is a choice of forum, it is open to the parties to agree on any exclusive forum for settlement of disputes. But such an agreement must be clearly spelling out either by express words or by necessary implication. Ouster of jurisdiction of courts cannot be lightly assumed or presumed and if there is such a concluded agreement, it will certainly operate as Page 94 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 estoppel against the parties to the contract. It is merely a unilateral affirmation or statement made by one of the parties, as long as it is not shown that the statement has been accepted by the other party as a term or condition of the agreement, it cannot be held that there is an agreement to confer exclusive jurisdiction on any court. Particular caution is necessary in regard to such a clause contained in a printed form, as in the case before Kerala High Court. It further held that where the printed form is signed by both the parties or where a form printed by one party is singed by the other party and forwarded by the letter to the former and the printed form contains clear words conferring exclusive jurisdiction on Page 95 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 a court at any particular place or ousting jurisdiction of the Court at any place, it may not be difficult to hold that the parties have agreed on such a term.
However, in such a situation also, the Court may not have to be oblivious of the fact that the people often sign order forms containing a good deal of printed matter without caring to read what is printed and therefore, it cannot be said that everything which is printed may be deemed to form the part of the contract and where a printed form by one party is sent and is signed only by that party and delivered to the other party, without anything more, it would be difficult for the court to hold that there has been consensus parties are ad-idem in regard to the particular clause. Page 96 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Accordingly, the revision was dismissed. 16.4 The Apex Court extensively dealt with this issue of jurisdiction in the following manner:
"10. L.T. Societa v. Lakshminarayan (AIR 1959 Calcutta
669) dealt with a bill of lading containing several detailed clauses, one of which said that all requests for compensation shall be submitted for settlement to the agencies of the shipping company at the place of discharge and failing the agreement party to the claim intending to take legal steps against the company may summon them before the judicial authorities of Treiste or Genoa and expressly renounced the competence of any other judicial authorities. It was held that this detailed clause forms part of the agreement accepted by the parties and therefore parties are bound by the same. In M.B.T. Co. Madras v. A. Narasinha Rao (1968 (1) Andhra W.R.
424), the Court was dealing with a forwarding note, reverse of which contained printed terms and conditions, one of which was that the court in Madras city alone had jurisdiction in respect of claims and matters arising under the consignment and the court at Sattenapalle had no jurisdiction to entertain suit. The Court upheld the agreement as not being violative of S. 28 of the Act. Page 97 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 However, there was no specific contention before the Court that the clause did not form part of the contract and therefore the Court had no occasion to decide that question. In S. Manuel Raj & Co. v. J. Manilal & Co. (AIR 1963 Guj. 148), Court was dealing with a printed form, printed by A and signed by B. Order in the printed form was sent by A to B. It was treated as a contract by correspondence and it was held that the clause in the printed form stating "subject to jurisdiction of a place Q"
conferred exclusive jurisdiction on that Court and that the agreement was enforceable.
11. In E.I.D. Parry (India) Ltd. v. Savani Transport (AIR 1980 A.P.30), the Court was dealing with two Way Bills at the top of which were printed in red link the words "subject to Bombay jurisdiction", and on the reverse of which were printed a clause. "The Court in Bombay State alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport." and also the clause "The contract shall be deemed to have been entered into and made with the Administrative and Head Office of the Company at Bombay." Court treated these clauses as being part of the agreement. In this case also it was not specifically contended before the Court that the clauses did not form part of the agreement.
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12. In Hassani Stores v. Larsen & Toubro Ltd. (1961 K.L.T. 314), a Division Bench of this Court was dealing with the provisions in a contract note whereby the plaintiff was bound to institute suit in a court in Bombay and nowhere else. It was not contended before the Court that the clause was not part of the agreement. The contention was that it was only a provisional agreement. This contention was overruled. It was held to be valid. In Sri Prasad Industrials v. Savani Transports (P) Ltd. (1978 K.L.T. 248), a single Bench of this Court considered a regular contract between the seller and the transporter, Clause (17) of which stated:
"This contract shall be deemed to have been entered into and made with the administrative and Head office of the company at Bombay. It is therefore expressly agreed that the courts in Bombay alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport."
13.Contention was that the contract was not binding on the buyer. This contention was overruled by this Court. In Jafko Engineers v. Kerala State S.S.I. Corporation (1979 K.L.T. 206), a single Bench of this Court was dealing with a regular contract as per the terms of which exclusive jurisdiction was given to courts at one place. In this case also there was no contention that the particular clause Page 99 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 was not part of the agreement. The court upheld the agreement.
14. Patel Bros. v. Vadilal (AIR 1959 Madras 227) dealt with a case of contract evidenced by a bill on which were printed at the top the words "subject to Bombay jurisdiction". The court held that the clause did not exclude jurisdiction of any other court. Ouster of jurisdiction of a court to which a person is entitled to resort to under the Civil Procedure Code or any other statute cannot be a matter of assumption or presumption but one to be proved by express words contained in the contract or at least by necessary or inevitable implication and that the test was not satisfied in that case. It was further held that the mere printing of those words cannot amount to a contract that both parties agreed to have Bombay as the venue for settlement of disputes.
15. C. Satyanarayana v. L. Narasimham (AIR 1968 A.P.
330) dealt with a letter written in letter head at the top of which were printed the words "subject to Madras jurisdiction." It was held that merely because defendants had caused such printed words, it cannot become part of the contract, unless they were expressly agreed to by the plaintiff. It was held that there was no agreement. G.P. Venkataraju v. Palukuri (AIR 1975 A.P. 32) dealt with the case of a bill prepared by the defendant and addressed to Page 100 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the plaintiff. The bill contained at the top printed words "subject to Calcutta jurisdiction". The court held that the words did not amount to contract between the parties to confer exclusive jurisdiction on the Calcutta Court.
16. The Allahabad High Court in Kanpur Sugar Supply v. Harsukh (AIR 1971 Allahabad 502) dealt with a case of a series of bills and letters at the top of which were written the words "subject to Rajkot courts only." The court said that by accepting the hundi or the bill, the receiver thereof was not agreeing to the condition that only Rajkot courts shall have the exclusive jurisdiction over the dispute. He may accept the bill and take delivery of the goods to avoid unnecessary disputes. But where in spite of the clear provision 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 Rajokt courts alone shall have the exclusive jurisdiction. In Surajmall v. Kalinga Iron Works (AIR 1979) Ori. 126), the defendant sent a purchase order to the plaintiff and the plaintiff sent work order to the defendant. The words "subject to Calcutta jurisdiction" were printed at the top of the purchase order. The purchase order was not signed by the plaintiff. It was only a communication sent by the defendant to the plaintiff. The court held that it cannot be said that the plaintiff agreed to confine settlement in Page 101 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 allegation of disputes between the parties only at one place namely Calcutta. Ouster of court's jurisdiction should not be easily construed and could not be assumed or presumed very easily. It must be proved by necessary or inevitable implication.
17. In Jagannath v. Nanakkal (1972 M.P.L.J. 981), Madhya Pradesh High Court considered an agreement relating to sale of goods. Body of the agreement contained no stipulation regarding jurisdiction. But the original agreement was on printed form with a heading "subject to Vikarabaugh jurisdiction". The Court held that inference of agreement to oust the jurisdiction cannot be drawn from the printed words of such a nature in the absence of any other evidence to show that it was actually a term of the agreement.
18. In Secretary, Vikalanga Sevaka Co-op. Society Ltd. v. Sheth Brothers (1983 K.L.T. 652), Kader J. considered a long line of decisions of various courts to decide whether the printed words at the top of a bill "subject to Delhi jurisdiction" amounted to ouster of jurisdiction of other courts. The learned Judge held that the words did not constitute an agreement between the parties by which they agreed to oust the jurisdiction of all the courts except the courts in Delhi.
Page 102 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
19. When there is choice of forum, it is certainly open to the parties to agree on an exclusive forum for settlement of disputes. But such an agreement must be clearly spelled out either by express words or by necessary implication. Ouster of jurisdiction of courts cannot be lightly assumed or presumed. If there is such a concluded agreement, it will certainly operate as estoppel against the parties to the contract. If it is merely a unilateral affirmation or statement made by one of the parties, as long as it is not shown that the statement has been accepted by the other party as a term or condition of the agreement, it cannot be held that there is an agreement to confer exclusive jurisdiction on any court. Particular caution is necessary in regard to such a clause contained in a printed form, as in this case. Where the printed form is signed by both the parties or where a form printed by one party is signed by the other party and forwarded by the latter to the former and the printed form contains clear words conferring exclusive jurisdiction on a court at any particular place or ousting jurisdiction of the Court at any other place, it may not be difficult to hold that the parties have agreed on such a term. Even in such cases, courts must remember that people often sign order forms containing a good deal of printed matter without caring to read what is printed. It cannot always be said that everything which is printed may be deemed to form part of the contract. Where a form printed by one party is signed only by that Page 103 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 party and delivered to the other party, without anything more it will be difficult for the court to hold that there has been consensus ad idem in regard to the particular clause. Of course, if there is some other material to indicate acceptance or consent of the party who received the printed form, then the court is free to infer that the clause formed part of the agreement.
20. If it can be held that the printed clause in the consigment note in this case formed part of the agreement, there is clearly ouster of jurisdiction of courts at Calicut. The form was got printed by the transport undertaking. It was signed by an employee of the undertaking. It was not signed by the consignor, second plaintiff. It was merely delivered to the consignor. Contract was entered into not by correspondence. It was a case of a single transaction covered by a single bill. The words themselves are printed in small letters at the very bottom of the way bill. There is no other material before the Court to show that this printed material was brought to the notice of the second plaintiff or that the second plaintiff had accepted the same. In these circumstances, I hold that this particular clause did not form part of the agreement between the parties. Parties did not agree to oust the jurisdiction of the Court at Calicut or to vest exclusive jurisdiction in courts at Calcutta. Page 104 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
21. There is another aspect to this question. As pointed by Thakkar J. of the Gujarat High Court (as he then was) in Snehalkumara Sarabhai v. E.T. Organisation (AIR 1975 Guj. 72) while parties can lawfully enter into an agreement to restrict a dispute to a particular Court having jurisdiction, that stipulation though valid cannot take away the jurisdiction of the Court which admittedly has jurisdiction. The ouster clause can operate as estoppel against the parties to the contract. It cannot the hands of the court and denude it of the power to do justice. Ordinarily, Courts would respect agreement between the parties which is born out of the meeting of their minds and out of consideration of convenience. But the Courts are not obliged to do so in every case. Where the ouster clause is calculated to operate as an engine of oppression and as a means to defeat the ends of justice, it would be oppressive to drive the plaintiff to a court in a distant place to recover a comparatively small sum. The stipulation can be ignored by the excluded Court which otherwise possesses jurisdiction if it is considered to be oppressive having regard to the surrounding circumstances including the stakes involved. This is particularly so, when the defendant firm has its office and is doing business within the local limits of the courts and it would be unjust to enforce the stipulation against the plaintiff whilst it would not cause any real prejudice to the other side. In such case, the Court would refuse to entertain the contract Page 105 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 made by the contesting parties. On this reasoning, the Court interfered with the judgment of the Court below denying decree to the plaintiff on the ground that the court had no jurisdiction. Kader J. in 1983 K.L.T. 652 referred to these observations of the Gujarat High Court with approval. With great respect, I agree that this rule of reason and equity must also guide courts.
17. Delhi High Court in case of Satyapal (supra) was considering the substantial question of law in the second appeal where one of the questions was pertaining to territorial jurisdiction. The case of plaintiff was that goods were supplied from Delhi, and hence, the cause of action partly arose in Delhi. As per the pleadings, the good were supplied at Bhiwadi in Rajasthan. The pleadings did not indicate that any part of cause of action accrued in favour of the plaintiff in Delhi. The Court considered the findings Page 106 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 and observations of the first appellate court by holding that first appellate court's observations were perverse because the trial Court by a very exhaustive judgment had held that the Court at Delhi had territorial jurisdiction; firstly because the payment was to be made in Delhi as once no place of payment is specified, the debtor has to seek the creditor, and since the creditor/plaintiff was at Delhi, therefore, the payment needed to be made at Delhi and part of the cause of action would accordingly arise at Delhi and the second reason for holding that civil courts at Delhi had territorial jurisdiction was because the contract was entered at Delhi as the order was placed upon the appellant/ plaintiff at Delhi. The Court held thus: Page 107 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022
C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 "22. It is a well established principle of law that where, under a contract no place of payment is specified, the debtor must seek his creditor and therefore a suit for recovery is maintainable at the place where the creditor resides or works for gain, because a part of the cause of action arises at that place also with the contemplation of section 20(c) of the Code of Civil Procedure. Reference may be made to the judgments titled as "State of Punjab v. A.K. Raha" reported as AIR 1964 CALCUTTA 418 (DB), "Jose Paul v. Jose" reported as AIR 2002 KERALA 397 (DB), "Rajasthan State Electricity Board v. Dayal Wood Works" reported as AIR 1998 ANDHRA PRADESH 381, "Munnisa Begum v. Noore Mohd." Reported as AIR 1965 ANDHRA PRADESH 231 and "State of U.P. v. Raja Ram"
reported as AIR 1966 Allahabad 159.
23. In the judgment titled as "State of Punjab v. A.K. Raha" reported as AIR 1964 CALCUTTA 418 (DB) it was clearly held:
..The general rule is that where no place of payment is specified in the contract either expressly or impliedly, the debtor must seek the creditor, see The Eider (1893) P 119 at p. 136, Drexel v. Drexel. (1916) 1 Ch 251 at p. 261, North Bengal, Das Brothers Zemindary Co. Ltd V. Surendera Nath Das, ILR (1957) 2 Cal 8. The obligation to pay the debt involves the obligation to find the creditor and to pay him at the place where he is when the money Page 108 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 is payable. The application of the general rule is not excluded because the amount of debt is disputed...."
24. In the judgment titled as Sreenivasa Pulvarising vs Jal Glass & Chemicals pvt. Ltd. reported as AIR 1985 Cal 74 it was also held:
"......In a contract of the nature now under consideration performance of the contract consists not only of delivery of the goods but also of payment of the price. Therefore, cause of action for a suit on breach of such a contract would arise not only where the goods were to be delivered but also where the price would be payable on such delivery....."
It was further held:
".......9. Therefore, the law continues to remain the same and in a suit arising out of a contract, a part of the cause of action arises at the place where in performance of the contract any money to which the suit relates in payable. ..."
Adverting to the facts of the present case office/factory of the Plaintiff is situated at Jwala nagar, Shahdara, Delhi-32. No place of payment has been specified in the contract/bills/invoices. The defendants are liable to make the payment for the goods supplied to them. No application was made by the defendants to the plaintiffs Page 109 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 for fixing a place of payment and Sec. 49 of the Indian Contract Act cannot apply to the facts of the case. Therefore, the payment was to be made at the office of the plaintiff. Further the purchase order was placed at Jwala Nagar, Shahdara, Delhi-32 and the goods were supplied from Jwala nagar, Shahdara, Delhi-32 Therefore a part of th cause of action definitely arises at Jawala Nagar, Shahdara, Delhi-32. Hence the present suit for recovery of the sale price can be filed before this court as the office of the plaintiff is situated within the territorial limits of the jurisdiction of the court.
25. I therefore hold that this court has the territorial jurisdiction to try and entertain the present suit. This issue is therefore decided in favour of the plaintiff and against the defendants."
Debtor to seek creditor:
18. This Court in Greentose PVT LTD vs. Gujarat Narmada Valley Fertilizers Co.
Ltd., in Second Appeal No.154 of 2013 was also considering the issue of jurisdiction where the respondent- original plaintiff had submitted that the alleged condition on Page 110 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 jurisdiction did not form part of the contract between the parties. The plaintiff had no knowledge about the so-called clause relied on until the contract was completed. It was in a printed form on the printed invoice which was raised by the defendant after the plaintiff dispatched the purchase order. It was his contention that the contract was completed with sending of purchase order. Any clause on jurisdiction was not brought to the knowledge of the plaintiff and hence, was not part of contract. The suit was for damages for breach of contract, for which the defendant had given guarantee and had undertaken to indemnify for faulty material.
18.1 The principal point raised by the appellant about the jurisdiction was based Page 111 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 on the documents forming part of the transactions which showed that there was a clause regarding the court at Bombay having jurisdiction, and it was agreed between the parties and it being in the nature of exclusionary clause on jurisdiction, the suit instituted at Bharuch was not competent in law. For considering whether the contract between the parties contained any condition as to confer the jurisdiction on the courts at Bombay only and whether such condition was impliedly agreed upon or emanated from the correspondence leading the contract, the material aspect considered by the Court was the point of time the contract could be said to have been completed between the parties. Considering section 4 of the Contract Act, Page 112 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 1872 which provided as to when communication of acceptance of offer becomes complete, the Court held that the acceptance of offer becomes complete as against the proposer when it is put into transmission to the defendant and when it goes out of control or power of the acceptor i.e. the plaintiff. Thus, as soon as the Purchase Order is sent by the plaintiff accepting the proposal, the communication of a proposal is complete when it comes to knowledge of the person to whom it is made as per Section 4 of the Contract Act, 1872. The Purchase Order was sent from the place of plaintiff in Bharuch, Gujarat to the defendant at Bombay. The acceptance of offer in so far as the plaintiff was concerned, became Page 113 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 complete with dispatch of the Purchase Order by the plaintiff. It was the issuance of Purchase Order which was the point of co-terminus when the contract between the parties completed.
18.2 The reference was also made to the
decision of ONGC vs Modern Construction
Company, reported in [1997 Law Suit
(Gujarat) 123] where facts were that the contractor's tender was accepted by ONGC at Bombay, the work order was issued by the Superintending Engineer, Gujarat, the work was to be performed at Hazira, Surat, the payment was made at Bombay and Surat. This court observed that when the offers came to be accepted by ONGC, communication of acceptance was sent by ONGC to the contractor from Surat to Mansa by Page 114 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 telegrams, it was clear therefore that the communication of acceptance became complete qua the contractor, who was original proposer when intimation was sent into transmission by telegram from Surat to Mansa.
18.3 Thus, communication of acceptance of offers maturing into conclusion of contract got completed as against the contractor when telegrams were sent from Surat and as against the acceptor O.N.G.C. When the telegrams were received by the proposer-contractor which means that contract came to be concluded the moment telegrams were sent from Surat as there was completion of acceptance of offers in so far as proposer of the offer was concerned and qua proposer-contractor and proposal Page 115 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 became promises. But insofar as acceptor O.N.G.C. was concerned, it had an option to revoke the acceptance of offers till communication was received by the proposer.
Therefore, the Court held that the contention that contract was completed at place, Mansa, in Mehsana District, on the ground that intimation of communication of acceptance, i.e., the telegrams were received was not sustainable. The Court, therefore, in case of Greentose Pvt.Ltd. (supra) had also held that until the time the contract culminated and was completed, the clause in respect of jurisdiction was not in picture. The mention about "Bombay jurisdiction" was in the invoice raised pursuant to the Purchase Order of the plaintiff. What was stated in the invoice Page 116 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 was that "This sale is subject to our business terms. Bombay jurisdiction and interest at 18%". According to the Court, it was debatable in itself whether the above words would constitute in its effect a clause on jurisdiction, much less an exclusionary clause, whereby it could be construed that the jurisdiction would be of Bombay court only.
18.4 The findings and observations of the Court would need to be reproduced below:
"6.4 In Hakam Sing Vs Gammon [(1971) 1 SCC 286], the Apex Court held, "But such an agreement must be spelled out either by express words or by necessary implication. Ouster of jurisdiction of Courts cannot be lightly assumed or presumed. If there is such a concluded agreement, it will certainly operate as estoppal against the parties to the contract. If it is merely a unilateral affirmation Page 117 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 or statement made by one of the parties, as long as it is not shown that the statement has been accepted by the other party as a term or condition of the agreement, it cannot be held that there is an agreement to confer exclusive jurisdiction on any Court. Particular caution is necessary in regard to such a clause contained in a printed form, as in this case. Where the printed form is signed by both the parties or where a form printed by one party is signed by the other party and forwarded by the latter to the former and the printed form contains clear words clear words conferring exclusive jurisdiction on a court at any particular place or ousting jurisdiction of the court at any other place, it may not be difficult to hold that the parties have agreed on such a term. Even in such cases, Courts must remember that, people often sign order forms containing a good deal of printed matter without caring to read what is printed. It cannot always be said that everything which is printed may be deemed to form part of the contract. Where a form printed by one party is signed only by third party and delivered to the other party, without anything more it will be difficult for the court to hold that there has been consensus ad idem in regard to the particular clause. Of course, if there is some other material to indicate acceptance or consent of the party who received the printed form, Page 118 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 then the court is free to infer that the clause formed part of the agreement."
6.5 Relying on Hakam Sing (supra), the Kerala High Court in United India Insurance Company Limited vs Associated Transport Corporation Private Limited and another [AIR 1998 Kerala 36](supra), set out the position of law. In the case before the Kerala High Court Exhibit. B1 contained printed words "subject to Bombay jurisdiction alone", and the Kerala High Court observed thus, "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. Hut 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 court other the court specified."
Page 119 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 6.6 In order that a condition becomes binding to the parties to the contract, and which applies to the conditions or clause as to the jurisdiction as well, the sine qua non is firstly, it must form part of the contract itself. Secondly, it ought to have been conveyed in the proper manner. The courts have held as noted above that merely because the standard printed form of invoice mentioned the jurisdiction subject to a particular place, it cannot exclude the jurisdiction of the court at other places where part of cause of action may arise. The next requirement is that the party must have knowledge of the condition and that both the sides must be ad idem. In any view, this essential ingredient was not there.
xxx 7.1 The cause of action in the suit arising out of contract, would arise within the meaning of Section 20(c) of the Code of Civil Procedure, 1908. Such cause of action may arise at the place where the contract is made. It may arise at the place where contract is to be performed or came to be performed. The cause of action may also arise at a place where in performance of the contract, any money due thereunder expressly or impliedly has to be carried out.
Page 120 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 7.2 In a suit for damages for breach of contract, the origination of cause of action is the bundle of facts by which the breach takes place and is felt. In this regard, the place where the contract is to be performed and in course of performance, the breach is noticed becomes significant fact for arising of cause of action. Since the cause of action consisting breach of the contract, the suit can be filed where the breach of the contract occurred. The plaintiff's suit in the present case was for damages for breach of contract-the performance guarantee and the breach occurred when the department concerned found at Bharuch in course of practical use of the goods-the conveyor belts that they were defective and they were defective and faulty. It could not be gainsaid that at least, a part of cause of action accrued that the place where the contract was performed and therefore, the court at Bharuch could be the proper jurisdictional venue for instituting the suit for damages on the ground of breach of contract.
19. The Privy Council's decision in case of Soniram Jeetmull (supra) shall also need to be regarded. The question of course was with regard to the jurisdiction. The Court held that where there is an obligation to Page 121 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 pay money and either from the terms of the contract of from necessities of the case, a further obligation is implied to find the creditor so as to pay him, section 49 of the Indian Contract Act, 1872 as to the place for performance of the promise, when no place is fixed, does not apply.
19.1 It was a case where by a contract was made in Calcutta, the appellants agreed to make good to the plaintiffs' defaults in payments to them in respect of sales and purchases of grains in Rangoon, where the plaintiffs had a business branch. By leave of High Court at Rangoon, the plaintiffs sued appellants in that Court or money due under their agreement. It was held by the Privy Council that the appellants were under an implied obligation to pay in Page 122 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Rangoon and that consequently part of cause of action arose there and there was jurisdiction under clause 10 of the High Court Charter.
19.2 The appellants were a firm carrying on business in Calcutta and the plaintiffs were a limited Company whose registered office was in Bombay, carrying on business at Calcutta, Bombay and Rangoon and in 1919 they had taken over and had since continued the business of Tata Sons and Co. By a contract made in Calcutta in 1911, the appellants agreed to assist Tata, Sons and Co. in securing constituents to purchase and/or sell grains in Rangoon, on constituents' account as common agents only and they would make good any undisputed claim which Tata, Sons and Co. might lose Page 123 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 owing to the failure or suspending payment of constituents. In consideration, Tata, Sons and Co. agreed to pay the appellants one-quarter of the commission they received.
19.3 In 1924, the plaintiffs sued the appellants in the High Court at Rangoon to recover under the agreement the amount of two unsatisfied judgments which they had obtained against Calcutta firm. The High Court, on an ex parte application granted leave under clause 10 of the Charter to bring the suit. Under that clause the High Court has jurisdiction where a defendant does not reside or carry on business within the local limit of the jurisdiction and if, the cause of action arises wholly, or with leave of the Court, in part within those Page 124 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 limits, this was objected to in the written statement, that did not give the jurisdiction in the suit and the question was directed to be tried as a preliminary issue. In this backdrop, the Court held that it is a duty of debtor to seek creditor and the place of payment is impliedly fixed.
20. In case of State of Punjab vs. A.K.Raha (supra) the appeal was by defendant-State of Punjab against a decree directing an inquiry as to the amount due and payable to the plaintiff company in respect of their claim. The question was the place of payment of the final bill when is not stated in the contract in terms, whether by necessary implication from the nature and the terms of the contract and the Page 125 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 surrounding circumstances, the place of payment of the final bill may be fixed. The Court held that general rule in that where no place of payment is specified in the contract either expressly or impliedly, the debtor must seek the creditor. The obligation to pay the debt involves the obligation to find the creditor and to pay him at the place where he is when the money is payable. The application of the general rule is not excluded because the amount of debt is disputed.
20.1 Profitably the findings and observations of the Apex Court would need to be reproduced.
"3.The place of payment of the final bill is not stated in the contract in express terms. If no place of payment is specified in the contract in express terms, the place may sometimes be fixed by necessary implication from the Page 126 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 nature and the terms of the contract and the surrounding circumstances, see Mahaluxmi Bank Ltd. v. Chotanagpore Industrial and Commercial Association. 95 Cal L J 64 :
(UK 1955 Cal 413), Sailendra Nath v. Ramsundar Ghosh, 16 Cal L J 279, Riley v. Holland (William) & Sons Ltd., (1911) 1 K B 1028 at p. 1031. In Soniram Jeetmull v. R. D. Tata & Co., Ltd. the Judicial Committee found that the obligation to pay the plaintiff company involved the obligation to pay them at their branch office 'at Rangoon.
In Thompson v. Palmer, (1893) 2 Q B 80, the Court held that the obligation to pay the plaintiff, a civil engineer, his travelling expenses and percentage of commission on the value of the work of construction done under his superintendence outside England involved an obligation to pay him at Newcastle where he generally earned on business and where the necessary plans and calculations for the work would be available and he would have the means of ascertaining the correctness or otherwise of the amount tendered. The fact that the moneys are payable to limited company may support the conclusion that the payment should be made at their registered office, which is the only place where in point of law they can be considered as legally existing: See Charles Duval & Co., Ltd. v. Gans, (1904) 2 K. B. 685, at p. 692, The question is whether in the instant case, the place of payment of the final bill may be fixed by necessary implication from the nature and terms of the contract and the surrounding Page 127 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 circumstances. During the relevant period of time, the Government of Punjab had its head-quarters at Simla but it is not suggested that Simla is the place of payment. Nangal is the place where the work was done and where the Executive Engineer had his office and measurement books and where the final bill was submitted. Mr. Ghose does not, however, claim that Nangal is the place of payment of the monies due under the final bill. The suggestion in the written statement was that the monies due to the plaintiff were payable at the treasury at Una, district Hoshiarpur, Punjab. The suggestion is not supported by the evidence on the record. Before us Mr. Ghose did not attempt to support the case so made ia the written statement. On behalf of the defendant the only positive suggestion was that the final bill was payable at one of the treasuries of the defendant in the Punjab, but we cannot accept this suggestion. We cannot find any necessary implication in the contract that the plaintiffs were obliged to receive payment of their final bill at any one of the numerous treasuries of the Punjab Government in the Punjab. Mr. Ghosh did not make any other positive suggestion with regard to the place of payment of the final bill. On the other hand, we find that the plaintiff company lad all along their registered office in Calcutta. They lad a temporary establishment at Nangal during the progress of the work; but with the conclusion of the work the temporary establishment was closed down. Before the Page 128 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 commencement of the work the defendant sent to the plaintiffs at their registered office at Calcutta the tender notice, the request in writing to send the security deposit and also the order to commence work. After the conclusion of the work, the plaintiff company sent all their communications to the defendant from their registered office at Calcutta. The final bill was sent by the plaintiff company from their registered office where their measurements and cumulations were available. In the light of these surrounding circumstances and on a tair reading of the contract, we think that the obligation under the contract to pay to the plaintiff company the amount due on their final bill by necessary implication involved the obligation to pay them at their registered office at Calcutta wheretheir measurements and calculations were available. The breach of this obligation therefore took place at Calcutta.
4. The case has been argued on the alternative footing that no place for payment can be fixed by necessary implication. No application was made by the defendant to the plaintiffs for fixing a place of payment and Section 49 of the Indian Contract Act cannot apply to the facts of the case. The general rule in that where no place of payment is specified in the contract either expressly or impliedly, the debtor must seek the creditor, see The Eider (1893) P 119 at p. 136, Drexel v. Drexel. (1916) 1 Ch 251 at p. Page 129 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 261, North Bengal, Das Brothers Zemindary Co. Ltd. v. Surendra Nath Das, ILR (1957) 2 Cal 6. The obligation to pay the debt involves the obligation to find the creditor and to pay him at the place where he is when the money is payable. The application of the general rule is not excluded because the amount of debt is disputed. On behalf of the appellant it is argued that the our attention was drawn to the case of Sabjee Sahib v. Noordiu Sahib, ILR 22 Mad 139. We cannot accept this contention. The claim for damages has been abandoned. The claim, as it stands now, is for refund of the security deposit and for payment of the price of the work done. The bill gives the quantities and particulars of the work done and the rates charged. Part of the claim is for price of the work done, including extras, to be ascertained by measuring each particular class of work and pricing it in accordance with the contract schedule. Beyond doubt, this claim is a debt or liquidated demand, see Halsbury's Laws of England, Third Edition Volume 3, Article 917, page 474. The rest of the claim is on a quantum meruit for reasonable price for work done for which no price is fixed. It is again well settled that an action of debt can be maintained for the value of work and labour upon a quantum meruit, see Lagos v. Grunwaldt, (1910) 1 K B 41 at pp. 46, 48, Stephenson v. Weir, (1879) 4 L R Ir 369 at p. 373. The value of the work done and of goods sold and delivered for which no price is fixed, formerly recoverable under Page 130 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 the Courts known as quantum meruit and quantum valeabat could be sued for under the indebitatus accounts, see Bullens and Leake Pleadings, Second Edition, p. 28. By the application of the general common law rate also the defendant was under an obligation to pay to the plaintiffs their dues under their final bill at their registered office at Calcutta and the breach of this obligation took place there.
21. It is thus clear from the catena of decisions that in a suit for damage for breach of contract, the cause of action would arise within the meaning of section 20(C) of the Code of Civil Procedure. Such cause of action may arise at the place where contract is made or at the place where contract is to be performed or came to be performed. The origination of cause of action being the bundle of facts by which the breach takes place and is noticed and therefore, the breach which is noticed Page 131 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 become significant fact for arising of cause of action.
22. It is always open to the parties to agree on any exclusive forum for settlement of dispute, but such an agreement must be cleared which spells out either by expressed or by necessary implication ouster of jurisdiction of the Court. The ouster of Court's jurisdiction cannot be lightly assumed and if there is a concluded agreement, it will surely operate as estoppel against the parties to the contract. If it merely a unilateral statement or affirmation made by one of the parties, unless shown that the other party has accepted such term or condition, it cannot be held that there is an agreement Page 132 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 to confer exclusive jurisdiction on any Court where the printed form is by one of the parties forwarded by way of a letter to the other which contains the words conferring exclusive jurisdiction on a court at any particular place or ousting the jurisdiction of the Court. It may not be difficult to hold that parties have agreed on such a term. The Court also must be conscious at that juncture to note that many printed forms are in a routine manner signed by the parties. If a printed by one party is dispatched and is signed only by that party and if delivered to the other party without expressing anything more, consensus with regard to the particular jurisdiction is difficult to be gathered. Page 133 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022
23. The Courts have very zealously guarded the ouster of jurisdiction of the Courts. The clause ousting the jurisdiction has to be absolutely clear, unambiguous and specific so as to bind the parties where unless the agreement on exclusion of other jurisdiction is noted. The other courts would surely have jurisdiction. The construction of the ouster clause with the words like 'exclusive only', 'alone' and 'like' are feasible, however, even without these words the maxim expression of one is the exclusion of another 'expressio unius est exclusio alterius' can be applied.
24. Every case shall need to be examined on the basis of the facts and the intention of the parties to exclude all others from its Page 134 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 operation shall need to be inferred on the basis of the facts adduced. In the matter on hand, the question is with regard to the territorial jurisdiction of Principal Civil Judge, Kalol. The defendant firm is registered and located at Hyderabad. The agreement was accepted to supply the goods on issuance of purchase order at Hyderabad. The purchase orders were issued from Hyderabad and the products were to be delivered in different districts coming in the State of Telangana. In the invoices raised and produced by the plaintiff, it is a case of the defendant that parties have agreed to and has chosen the jurisdiction at Ahmedabad. The money, according to the plaintiff, was payable at Ahmedabad and the payments have been made by the defendants Page 135 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 through RTGS in the Bank specified in the invoice, which is situated at Ahmedabad.
Thus, the part of cause of action, according to the plaintiff, had arisen at Ahmedabad where money was expressly payable as per the invoice. Again, as per the say of the plaintiff, the existence of a jurisdiction clause in an agreement would make the intention of the parties to an agreement clear and the contract specified the jurisdiction of the court at particular place. Therefore, such court has jurisdiction to deal with the matter. It is also emphasized that an inference can be drawn that the party intended to exclude all others and therefore, Section 6 of the Commercial Courts Act when read with Page 136 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 Section 20 of the CPC, the Commercial Court at Kalol would have no jurisdiction.
25. What can be noticed is that the trial Court has suo moto raised the query with respect to the territorial jurisdiction as invoice raised by the plaintiff contained jurisdiction clause 'subject to Ahmedabad jurisdiction'.
26. The court after by-partite hearing had ordered holding that the Kalo Court has jurisdiction. The application under Order VII Rule 11 of the CPC filed by the defendant for rejection of the plaint also has been rejected by the Court.
27. In the opinion of this Court, no interference is warranted so far as the Page 137 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 order of Kalol Court is concerned as it would have the jurisdiction to try the suit for the facts and law discussed as also for the following reasons.
28. The defendant approached the respondent plaintiff for availing supply of plastic material as a plaintiff is an authorised vendor for the State of Telangana, Andhra Pradesh and Karnataka. The plaintiffs's registered office as well as the factory both are situated within the territorial jurisdiction of the Court at Kalol.
Purchase orders were received at the address of plaintiff's factory as well as at its registered office located at Kalol. The payment from the defendant was also received at the factory address and the Page 138 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 plaintiff maintained the account of the defendant's company as per the provisions of the Companies Act.
28.1 All transactions between the parties have been entered into within the territorial jurisdiction of village Santej, Taluka Kalol. The Axis Bank's main Branch where plaintiff's account is maintained is situated at Ahmedabad and the payment had been made by the defendant in Bank Account maintained in the said Bank at Ahmedabad through RTGS as per the tax invoice raised by the plaintiff to the defendants. At the bottom a printed clause, "Subject to Ahmedabad jurisdiction" has continued and therefore, according to the defendant, this printed material would govern the Page 139 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 jurisdiction of the Court in exclusion of all other Courts. Such interpretation is not to be endorsed as the plaintiff has explained that before shifting of the company to the jurisdiction of the Kalol Court in the year 2014, the printed material continued to be used without getting the new invoices and material. The old stationary ought to have been discontinued containing such printed clause 'subject to Ahmedabad jurisdiction'. That is no longer correct jurisdiction for the case on hands.
28.2 Again, this being a unilateral clause is not sufficient to decide the jurisdiction of the Ahmedabad Court. Again, there is a complete absence of any express Page 140 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 term or acceptance which reflects the ad idem of the parties as regard the jurisdiction clause mentioned in the invoice. It is also to be seen that the defendant in its written statement has denied that there is any contract between the parties with regard to maintaining the account for supplying the Tarpaulin during the period from 2015-2020 and at the same time, it is not denied that it received the invoices raised by the plaintiff. This query of territorial jurisdiction has been raised in reply to the attachment application filed under Order XXXVII Rule 5 of the CPC. The objection has been raised in respect of territorial jurisdiction when the query was raised by the Kalol Court by looking at the tax invoice. The GST Page 141 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 registration is also falling within the purview of Kalol-Gandhinagar GST Division. There does not appear to be any connection to the Ahmedabad jurisdiction except the main Branch of the Axis Bank of the plaintiff being situated at Ahmedabad. It is quite clear that unilateral affirmation or statement by one of the parties cannot confer exclusive jurisdiction in any Court. There does not appear to be any such term accepted by the other side by way of an agreement.
29. The order of the trial Court, in the opinion of this Court is therefore not assailable and the cause of action surely has arisen in the territorial jurisdiction of the Civil Court, Kalol.
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30. In the invoice the plaintiff has chosen to mention the jurisdiction of Ahmedabad and by making payment at Ahmedabad, the defendant though had signified their consent to be subjected to the Ahmedabad jurisdiction, the Ahmedabad Court also may have a jurisdiction to deal with the matter, but the same cannot be in exclusion of other courts, much less the Court at Kalol. The Validity of the clause will depend upon the validity of an agreement in a suit for damages for breach of contract when question arises of cause of action making of the contract is a part of a cause of action and a suit on contract can therefore be filed at the place where it was made. When the Court needs to decide the question of jurisdiction pursuant to an Page 143 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 ouster clause as held by the Apex Court in a suit for damages for breach of contract when question arises of cause of action, making of the contract is a part of a cause of action and a suit on contract can therefore be filed at the place where it was made. There has to be an unambiguous and specific clause to bind the parties and in absence of any such clause, the jurisdiction of other courts surely cannot be ousted. The intention has to be cleared of excluding all others from its operation. The cause of action means the facts which if traversed, it would be required for the plaintiff to prove in order to support its rights to a judgment. These being a bundle of facts to which the law is applied and would eventually give a relief to the Page 144 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022 C/SCA/20148/2021 JUDGMENT DATED: 02/08/2022 party. There has to be some act done by the defendant raising the cause of action.
31. Here also in a matter of contract, there may arise the cause of action of various kinds and in a suit for damage for breach of contract, the suit can be filed either at the place where contract was made or at the place where it should have been performed and the breach occurred. The suit on a contract, therefore, can be filed at the place where it was made. It is not difficult to determine the place where the contract was made and Kalol being that place where such contract was made, the territorial jurisdiction of Kalol Court surely can be confirmed.
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32. Resultantly, these petitions preferred under Article 227 of the Constitution of India challenging the order dated 24.11.2021 in different suits filed by the original respondent-plaintiff shall require to be dismissed and are dismissed accordingly.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) M.M.MIRZA Page 146 of 146 Downloaded on : Sat Dec 24 22:34:34 IST 2022