Madhya Pradesh High Court
Sureshchandra Jain vs A.H.Wheeler And Company Private ... on 1 February, 2018
-1-
Writ Petition No.6685/2016
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
SINGLE BENCH : HON'BLE SHRI JUSTICE S. C. SHARMA
Writ Petition No.6685/2016
Sureshchandra Jain
Versus
A. H. Wheeler and Co. Pvt. Ltd. & Others
Shri Veer Kumar Jain, learned senior counsel with Shri Vaibhav Jain,
learned counsel for the petitioner.
Shri S. C. Agrawal, learned counsel for the respondent No.1.
Shri H. Y. Mehta, learned counsel for the respondents No.2 and 3.
O R D E R
st (Delivered on this 01 of February, 2018) The petitioner before this Court is aggrieved by order dated 31/01/2015 passed by learned Civil Judge, Class-II, Ratlam in Civil Suit No.17-A/2014 by which the learned Civil Judge has allowed the application preferred by the defendant under Order VII Rule 10 read with Section 151 of the Code of Civil Procedure, 1908. The petitioner is also against the order dated 22/09/2016 passed in Misc. Civil Appeal No.24/2016 by learned II Additional District Judge, Ratlam.
02- The facts of the case reveal that the petitioner, who is plaintiff before the trial Court, has filed a civil suit for declaration and for grant of permanent injunction. It was stated in the suit by the plaintiff - petitioner that the defendant No.1 A. H. Wheeler and Company Pvt. Ltd. has appointed the plaintiff as commission agent -2- Writ Petition No.6685/2016 and he is being evicted from the shop which is subject matter of the suit and in those circumstances, a prayer was made for grant of permanent injunction and for restraining the respondent from evicting the petitioner from the shop in question. 03- The defendant No.1 A. H. Wheeler and Company Pvt. Ltd. filed an application under Order VII Rule 10 and 10-A read with Section 151 of the CPC and it was stated by the defendant No.1 that the plaintiff is working as commission agent on account of an agreement executed in the year 1990 and as the agreement provides for a specific clause in respect of jurisdiction, the suit is not maintainable for want of jurisdiction at Ratlam. 04- The trial Court has allowed the application on the ground that as per specific clause relating to jurisdiction which provides that in case of dispute of any kind only the Allahabad Court will be having jurisdiction. The trial Court has allowed the application and has consigned the record to the record room, against which an appeal was preferred and the appellate Court has taken a similar view by an order dated 22/09/2016. Hence, present petition has been filed under Article 227 of the Constitution of India. 05- Shri Jain, learned senior counsel has placed reliance upon a judgment delivered in the case of Pratyush Chaterjee Vs. M/s. Super Auto Forge Pvt. Ltd. and Anr. reported in 2001(4) MPLJ 472 and his contention is that in light of the aforesaid judgment, the issue of territorial jurisdiction cannot be looked into -3- Writ Petition No.6685/2016 on an application preferred under Order VII Rule 10 of the CPC. In the aforesaid case, there was no such clause under the agreement providing a place in respect of jurisdiction and in those circumstances it was held that the issue of jurisdiction is a mix question of law and fact, whereas in the present case there is a specific clause which was accepted by the plaintiff and therefore, the judgment is of no help to the petitioner.
06- Reliance has also been placed upon a judgment delivered in the case of Punjab National Bank Vs. Sarman & Ors. in First Appeal No.23 of 1988 decided on 17/07/1995 and it was a case relating to mortgage of immovable property and in those circumstances it was held that the Court within the local limits of whose jurisdiction the property is situated, is having jurisdiction, whereas in the present case no such contingency is involved. There is a specific agreement between the parties and there is a clause in respect of jurisdiction and therefore, the judgment is of no help to the petitioner.
07- Reliance has also been placed upon a judgment delivered in the case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & Anr. reported in (2005) 7 SCC 791 and in the aforesaid case it has been held that agreement restricting jurisdiction to one of the many Courts having jurisdiction, not opposed to public policy, and is legal, valid and enforceable. In the present case agreement has been executed in respect of various -4- Writ Petition No.6685/2016 licensees / agents by A. H. Wheeler and Company Pvt. Ltd. all over India and in those circumstances, the clause relating to jurisdiction at Allahabad is certainly permissible in light of the aforesaid judgment and the judgment is again of no help to the petitioner. 08- Reliance has also been placed upon the judgment delivered in the case of Om Prakash & Anr. Vs. Anar Singh & Ors. reported in AIR 1973 Allahabad 555, Praking Vs. State Bank of Indore reported in AIR 1996 MP 28, Ananda Bazar Patrika Ltd. & Ors. Vs. Biswanath Prasad Maitin reported in AIR 1986 Patna 57, Mrs. Rosy Joseph & Ors. Vs. Union Bank of India reported in AIR 1978 Kerala 209 and lastly upon Swastik Gases Pvt. Ltd. Vs. Indian Oil Corporation Ltd. reported in (2013) 9 SCC 32 and paragraph No.32 of the aforesaid judgment reads as under:-
"For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like 'alone', 'only', 'exclusive' or 'exclusive jurisdiction' have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement - is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the 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."-5- Writ Petition No.6685/2016
09- In light of the aforesaid and keeping in view the intention of the parties, at the time the agreement was executed which contains jurisdiction clause, this Court is of the opinion that the Courts below were justified in passing the impugned order. 10- A coordinate bench of this Court in the case of Archana Vs. Tupperware India Pvt. Ltd., Gurgaon reported in 2014(4) MPLJ 476 in paragraph No.8 to 10 has held as under:-
"8. In the concurring judgment, Hon'ble Justice Madan B. Lokur has expressed that :-
"55. It will be seen from the above decisions that except in A.B.C.laminart where this Court declined to exclude the jurisdiction of the courts in Salem, in all other similar cases and inference was drawn (explicitly or implicitly) that the parties intended the implementation of the exclusion clause as it reads notwithstanding the absence of the words "only", "alone" or "exclusively" and like. The reason for this is quite obvious. The parties would not have included the ouster clause in their agreement were it not to carry any meaning at all. The very fact that the ouster clause is included in the agreement between the parties conveys their clear intention to exclude the jurisdiction of courts other than those mentioned in the clause concerned. Conversely, if the parties had intended that all courts where the cause of action or a part thereof had arisen would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties.
57. For the reasons mentioned above, I agree with my learned Brother that in the jurisdiction clause of an agreement, the absence of words like "alone", "only", "exclusively" or "exclusive jurisdiction" is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The very existence of a jurisdiction clause in an agreement makes that intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the courts in Kolkata had jurisdiction to entertain the disputes between the parties."
9. In the present case in the jurisdiction clause 30 the parties by agreement have given exclusive jurisdiction to the courts at New Delhi. the -6- Writ Petition No.6685/2016 intention of the parties to exclude the jurisdiction of all other courts except the courts at New Delhi, is very clear.
10. Counsel for the applicant has referred to Section 2(1)(e) of the Act in support of his plea relating to the meaning of the word "Court" and has placed reliance upon the judgment of the Delhi High Court in the matter of International Breweries Pvt. Ltd. Vs. Mohan Meakins Ltd. and Anr., reported in 153(2008) DLT 399, but the Supreme Court in the matter of Swastik Gases Pvt. Ltd. (supra) has duly considered Section 2(1)(e) of the Act while holding contrary to what has been submitted by the applicant before this Court."
11- In light of of the aforesaid judgment as the parties by their agreement have excluded the jurisdiction of all other Courts except the Court at Allahabad, the Courts below were justified in passing the impugned orders.
12- Not only this, the scope of a petition filed under Article 227 of the Constitution of India is quite limited. The jurisdiction of High Court under Article 226 and 227 of the Constitution of India is separate and distinct and operates in different fields. This Court does not find any reason to interfere with the impugned orders specially in light of the agreement between the parties. Hence, the admission is declined.
Certified Copy as per rules.
(S. C. SHARMA) JUDGE Tej Tej Prakash Vyas 2018.02.12 15:51:26 -08'00'