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27. Shri Vashi in fact relied upon the above two cases to show that Exh. 49, consignment note constituted a contractual document between the parties and last term and condition No. 18 clearly stated that plaintiffs were bound by the same whether they have read it or not or whether they are ignorant of the precise legal, effect of the same.

28. In order, to test this contention of Shri Vashi it will have to be first ascertained as to whether a document i.e. Exh. 49 can be identified as a contractual document. Admittedly it is an unsigned document either by the consignor or consignee. It is merely a consignment note which was not signed but merely delivered or handed over, after the oral agreement according to which the defendants undertook to transport the consignment from Calcutta to Kirloskarwadi. Shri Vashi has relied upon the admission by Shri Gole, plaintiffs witness No. 1 who is the accountant of the plaintiff No. 1 at Kirloskarwadi, that there was correspondence between the plaintiff No. 1 and the defendants in respect of the suit consignment and that they have documentary evidence to show that they had engaged the defendants as their carriers. Further he Roes on to say as follows:--

30. In our judgment, these contentions of Shri Vashi are wholly misconceived. As held by the Division Bench of this Court in Ghatge and Patil case (supra), a person who signs a document which contained contractual terms is unquestionably bound by them even though he has not read them and even though he is ignorant of their precise legal effect. It is only when an unsigned document is merely delivered to consignor or consignee the question would arise whether the terms of the said document are adequately brought to his notice. Admittedly in this case the consignment notte is not signed either by consignee or consignor. On this ground alone, it is therefore, difficult to hold that Exh. 49 is a contractual document.

32. As observed earlier, the consignment note is not signed. The clause restricting the jurisdiction to only one court is sought to be enforced. In such a case of an unsigned document, the question would be whether reasonable, notice of the terms contained therein has been given to the plaintiffs. The English cases laying down the principle that when a document is not signed but is merely delivered to the plaintiff, attention of the other side should be adequately and specifically drawn to such terms and conditions are legion. This was the crucial test pronounced by Mellish L.J., in 1877 in the case of Parkar v. South Eastern Rail Co. ((1877) 36 LT 540) "where the defendants claimed that a passenger was bound by terms stated on a cloakroom ticket of which he was ignorant. The question that was raised was had the defendants done what was sufficient to give notice of the term to the person or class of persons to which the plaintiff belonged?" It was observed in that case "the question was one of fact, and the court must examine the circumstances of each case."

43. In this case Shri Vashi has to face a number of difficulties. Firstly as held earlier Exh. 49 is not a contractual document. The defendants have further failed to prove, that Ex. 49 was either a contractual document or an integral part of the contractual document. Then it is an unsigned document, Therefore, it will now be examined whether the attention of the other party i.e. that of the plaintiff was adequately and specifically drawn to the term, excluding the jurisdiction of any other court and confining all the disputes to the jurisdiction of Calcutta Court alone. As Shri Vashi has conceded that there is no contract in writing, he could not possibly refer to the other terms and conditions of Ex. 49 limiting the liability of his clients except the last one. which excluded jurisdiction of any other court except that of Calcutta Court, As observed earlier where a document is signed by the parties and which expressly incorporates contractual terms both limiting the liability as well as confining the jurisdiction of the court to particular forum to try the suit, it is no defence in the eyes of law that the parties which had signed the document had not read the terms of such a contractual document. However, when the document is not signed and is merely delivered to the other party, after the contract is concluded the question that falls for determination is whether the terms of such document are adequately and specifically brought to the notice of the other party. Shri Vashi further relied on the judgment of Court of Appeal in England in J. Spurling Ltd. v. Bradshaw (1956) 2 All ER 121 in which on facts of that case it was held that the defendant had sufficient notice of the conditions and they formed part of the contract of bailment. It was further held that although an exempting clause availed a party to a contract only when he was carrying out the contract and would not avail him if he were deviating from it or were in breach of a term which went to the root of the contract, yet since the defendant's counter-claim against the plaintiffs was based on negligence but nothing more, as exempting clause protected them and the counter-claim failed. In that case question for decision was whether the clause exempted liability for any loss or damage and protected bailee by the said exemption clause. In order to appreciate the decision in that case, a brief reference may here be made to the, facts of that case :--