Main Search Premium Members Advanced Search Disclaimer
Cites 26 docs - [View All]
A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem on 13 March, 1989
R.S.D.V. Finance Co. Pvt. Ltd vs Vallabh Glass Works Ltd on 3 February, 1993
M/S Swastik Gases P.Ltd vs Indian Oil Corp.Ltd on 3 July, 2013
Hakam Singh vs M/S. Gammon (India) Ltd on 8 January, 1971
Globe Transport Corporation vs Triveni Engineering Works And ... on 31 March, 1983

User Queries
Try out the Virtual Legal Assistant to take your notes as you use the website, build your case briefs and professionally manage your legal research. Also try out our Query Alert Service and enjoy an ad-free experience. Premium Member services are free for one month and pay only if you like it.
Madras High Court
Arunkarthik vs Preetimohan on 26 September, 2013
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26/09/2013

CORAM

THE HON'BLE MR.JUSTICE R.SUDHAKAR

APPLICATION.3735 OF 2013

BRAHMAPUTRA VALLEY FERTILIZER CORPN

VS

FENNER INDIA LTD


FOR PETITIONER : ARUNKARTHIK
FOR RESPONDENT : PREETIMOHAN


ORDER:

R.SUDHAKAR, J.

APPLICATION NOS. 3735 & 3479 OF 2013 APPLICATION NO. 3638 OF 2012 IN C.S. NO. 557 OF 2013 Application No.3735 of 2013 is filed by the defendant in the suit under Order XIV Rule 8 of the Original Side Rules read with Section 151 of the Code of Civil Procedure praying this Court to dismiss the present suit as not maintainable for want of jurisdiction.

2. Application No.3479 of 2013 is filed by the defendant in the suit under Order XIV Rule 8 of the Original Side Rules read with Section 8 of the Arbitration and Conciliation Act, 1996 and Section 151 of the Code of Civil Procedure praying this Court to refer the present suit for arbitration.

3. Application No.3638 of 2012 is filed by the plaintiff in the suit under Order XIV Rule 8 of the Original Side Rules read with Order XII Rule 6 of the Code of Civil Procedure praying this Court to pass a judgment and decree directing the defendant to pay the plaintiff a sum of Rs.1.52 Crores.

4. For convenience, the parties will be referred to by their rank in the suit.

5. The plaintiff is a company registered under the Companies Act having its registered office at Madurai and Branch Office in Chennai. They are in the business of manufacturing of equipment for unloading, loading, assembling and storage, and also carry out erection of those equipment at site.

6. The defendant placed two orders dated 8.5.2002 on the plaintiff, namely Purchase Order (Plaint Document No.1) and Work Order (Plaint Document No.2), both on the same day. The relevant portion of the Work Order dated 8.5.2002, reads as follows:

"The contract is hereby awarded to M/s.Fenner (India) Ltd. for assembly and erection, commissioning, guarantee test and final acceptance of urea handling system for HFCL Namrup Revamp Project subject to terms and conditions attached to ITB documents, standards, data sheet, specifications, drawings etc. and those referred therein.

SCOPE OF CONTRACT:

The scope of work shall include unloading, handling, storage, assembly and erection at site, comprehensive insurance, dismantling and removal job, site inspection, commissioning, guarantee test and handing over of Urea Handling System for Namrup-II and Namrup-III of HFCL Namrup Revamp Projects as per price break up given in the Annexure-I and technical scope of work enclosed, at a total contract price of Rs.1,16,52,500/= (Rupees One Crore Sixteen lakhs Fifty Two Thousand Five Hundred only).

7. The details of the Purchase Order dated 8.5.2002, read as follows:

(A) Purchase Order No.PNMM/1064/P/540R(A)/LR dated 8.5.2002 was for design and engineering charges, supply of equipment (mechanical and electrical) for Namrup-II & III, spares, testing charges, packing and forwarding charges, transportation charges for net order value (supply) for Rs.14,81,94,697.80 (Rupees Fourteen Crores Eighty-One Lakhs Ninety-Four Thousand Six Hundred Ninety Seven and Paise Eighty only).

The purchasing conditions were stipulated in Clause 19 and these included the conditions stipulated in attachment A01 (Instructions to Bidders) & A02 (General Conditions of Purchase) of ITB.

8. In terms of Clause (10) of the purchase order dated 8.5.2002, payment has to be made as follows:

10. Payment Terms :

Supply Portion I)10% interest bearing advance payment after release of LOI against submission of BG as per ITB terms (rate of interest  20% per annum as per ITB).

II)70% along with taxes and duties and transportation charges against receipted challan. Certified by PDIL/HFCL's Engineers at site, pro-rata for each consignment within 30 days of submission of invoices.

III)20% on acceptance of equipment duly erected and certified by HFCL/PDIL within 45 days of such certification."

9. The above payment term was amended on 10.9.2002 and the same reads as under:

"DESIGN & ENGG. CHARGES: BB (I)10% interest bearing advance payment after release of LOI and on submission of B.G. (Rate of Interest 20% P.A.) (II)70% payment shall be released within 30 days of submission of invoice. On pro-rata basis against approved billing schedule for design & Engg. for N-II & N-III. The invoice should be got duly certified by PDIL and countersigned by HFCL.

(III)Balance 20% shall be released after acceptance of the system duly erected & commissioning. The invoice should be duly certified by PDIL/HFCL at site and all the payment shall be released within 45 days after such certification.

Since payment terms are direct and not through bank the clauses at Sl.No.1, 2 & 3 of the "Note" stand deleted from payment terms."

10. The General Purchase Conditions for Hindustan Fertilizer Corporation Ltd., Namrup Unit attached with the purchase order in terms of Clause (19) of the Purchase Order, which are required for the purpose of adjudication of the present applications are extracted here under:

"27.3 LEGAL CONSTRUCTION Subject to provision of article 27.4, the purchase order shall be, in all respects, construed and operated as an Indian contract and in accordance with Indian laws as in force for the time being and is subject to the jurisdiction of the New Delhi or Calcutta Court.

27.4 ARBITRATION 27.4.1 In case of indigenous purchase orders all disputes which cannot be settled by mutual negotiations, the matter shall be referred for arbitration in accordance with Indian Arbitration Act, 1940, or enactment thereof for the time being in force.

27.4.2 In case of foreign supplier, all disputes which cannot be settled by mutual negotiations shall be settled under the rules of conciliation and arbitration of International Chamber of Commerce, Paris, by one or more arbitrators appointed in accordance with the rules.

27.4.3 Execution of purchase order shall be continued by the Supplier during the arbitration proceedings unless otherwise directed in writing by the Owner/Consultant.

27.4.4 The venue of arbitration in all cases shall be New Delhi (India) and shall be conducted in English language only. The Govt. of the seller's country is also not a party of this agreement.

11. There is no dispute that based on the Purchase Order (Plaint Document No.1) and the Work Order (Plaint Document No.2), the work for supply, erection and commissioning of the unit was executed. The contract was duly performed and the performance bank guarantee submitted by the plaintiff was discharged by the defendant from time to time. However, according to the plaintiff, there remained some amounts due. Based on certain correspondence, which, according to the plaintiff, shows clear admission of liability, the suit has been laid and thereafter under Order XII Rule 6 of the Code of Civil Procedure an application has also been filed for judgment on admission.

12. Notice was ordered and the defendant entered appearance and they have filed two applications, namely A.No.3479 of 2013 under Section 8 of the Arbitration and Conciliation Act read with Section 151 of the Code of Civil Procedure to refer the matter for arbitration. Another application, A.No.3735 of 2013 under Section 151 of the Code of Civil Procedure to dismiss the suit as not maintainable, for want of jurisdiction.

13. The learned counsel for the defendant referred to two clauses of the General Purchase Conditions annexed to Purchase Order (Plaint Document No.1) and submitted that since there is a specific arbitration clause, as stated aforesaid, the suit filed before this Court is a clear bar. Besides the above, in the affidavit filed by the defendant in support of the present applications, certain material facts are disputed. This Court, however, is not inclined to consider all those points, as I am inclined to take up the plea in Application No.3735 of 2013, which has been filed for dismissing the suit for want of jurisdiction, which requires to be considered as it relates to an issue on jurisdiction.

14. This plea is taken by the defendant on the ground that the specific terms in the General Purchase Conditions annexed to Purchase Order clearly provide that the suit should have been filed before the Court of competent jurisdiction, namely New Delhi or Calcutta. It is, therefore, pleaded that the suit ought not to be filed before this Court.

15. Mr.R.Murari, learned Senior Counsel appearing for the plaintiff relied upon the following decisions to sustain the plea that the cause of action for filing the present suit before this Court on the basis of the purchase order, work order and the conditions attached thereto, as part cause of action arose within the jurisdiction of this Court. He also pleaded that there is no specific ouster of jurisdiction of this Court and the suit is therefore maintainable. The decisions relied upon by the learned Senior Counsel are:

1)Rajasthan State Electricity Board v. Universal Petrol Chemicals Ltd., (2009) 3 SCC 107;

2)Hakam Singh v. Gammon (India) Ltd., (1971) 1 SCC 286;

3)Globe Transport Corpn. v. Triveni Engg. Works, (1983) 4 SCC 707;

4)R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd., (1993) 2 SCC 130;

5)Angile Insulations v. Davy Ashmore India Ltd., (1995) 4 SCC 153;

6)Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., (2004) 4 SCC 671;

7)New Moga Transport Co. v. United India Insurance, AIR 2004 SC 2154;

8)Shree Subulaxmi Fabrics v. Chand Mal Baradia & Ors., AIR 2005 SC 2164;

9)Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr. (2005) 7 SCC 791;

10)Balaji Coke Industry (P) Ltd. v. Maa Bhagwati Coke Gujarat (P) Ltd., (2009) 9 SCC 403;

11)Interglobe Aviation Ltd. v. N.Satchidanand, (2011) 7 SCC 463;

12)A.V.M. Sales Corporation v. Anuradha Chemicals Pvt. Ltd., (2012) 2 SCC 315;

13)A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, AIR 1989 SC 1239; and

14)Swastik Gases P. Ltd. v. Indian Oil Corporation Ltd., 2013 (8) SCALE 433.

16. The learned Senior Counsel appearing for the plaintiff also referred to the cause of action as pleaded in the plaint, which reads as under:

34. The plaintiff submits that the cause of action for the present suit arose in part in Chennai within the jurisdiction of this Hon'ble Court, where (i) The contract was concluded  The Purchase Order and the Work Orders were placed on the plaintiff in Chennai. The order was sent to the plaintiff's Chennai address, which at that time was at 82, Peters Road, P.B. No.661, Royapettah, Chennai. The Work Order and the Purchase Order required an acceptance to be sent within the stipulated 10 day period and this acceptance was also sent from Chennai; (ii) The contract was performed  The contract was performed from Chennai. More specifically : The supply of all the materials was made by the plaintiff both on sale-in-transit basis and on direct basis. All the delivery challans and invoices for such supplies were raised from Chennai. All payments were received at Chennai for supplies under the purchase order and services under the work order. The cause of action for the present suit arose on 23.10.2007 when the defendant issued the Final Acceptance Certificate to the plaintiff, thereafter on 03.05.2008, when the defendant discharged the two bank guarantees for performance security provided by the plaintiff thereby recognizing that it had no claims against the plaintiff, on 01.09.2009 when the defendant made part payment of a sum of Rs.88,95,098/= out of a sum of Rs.2.41 crores payable to the plaintiff on 01.11.2011 and 09.01.2012 when the defendant clearly admitted its liability to pay the plaintiff the sum of Rs.1.52 crores remaining to be paid and on 02.11.2011 when the plaintiff furnished a 'No-Claim' certificate for amounts apart from the Rs.1.52 crores due and payable at the request of the defendant. The plaintiff submits that despite the general purchase conditions containing a clause 27.4.1 which provides that disputes or differences which arise under or in connection with the purchase order are to be referred to arbitration, the said clause would have no applicability in the present case in light of the fact that there exists no dispute between the parties as to the issue of liability with respect to the suit claim. In the present case, the plaintiff's entitlement to the said sum of Rs.1.52 crores is not a dispute or a difference but is an admitted liability and therefore the present claim will not fall within the scope of the arbitration clause.

17. Per contra, the learned counsel appearing for the defendant submits that one of the documents, namely, invoice (Plaint Document No.26) is a supply to New Delhi address. Some of the invoices raised are to the New Delhi office of the defendant. The parties have clearly agreed that the jurisdiction court will be at New Delhi or Calcutta and, therefore, they are bound by the terms of the purchase order and work order conditions. Therefore, this Court should not entertain the suit. The plaintiff is bound by the terms of the agreement. The parties have agreed to two specific courts for resolution of disputes.

18. On considering the plea made by the respective parties, it is evident that primarily the cause of action for filing the present suit, as has been pleaded by the plaintiff, is the purchase order and work order dated 8.5.2002 (Plaint Document Nos.1 and 2). Condition No.27.3 of the General Conditions of Purchase annexed to the Purchase Order provides that the jurisdiction Court will be New Delhi or Calcutta in case of disputes.

19. The plaintiff cannot sustain two different plea on the document which is filed in support of the plaint, namely one to allege cause of action for laying the suit before this Court and the other to refute the plea of jurisdiction exclusively on the court at New Delhi or Calcutta. The plaintiff has two inconsistent plea on the very same document.

20. The plaintiff cannot be allowed to "approbate" and "reprobate" on this document and seek the remedy of filing the suit before this Court and further state that the document will not be binding insofar as jurisdiction is concerned.

21. This principle has been well recognized and emphasized by the Apex Court in Karam Kapahi & Ors. v. Lal Chand Public Charitable Trust & Anr., (2010) 4 SCC 753, wherein it has been held as follows:

"50. The phrase approbate and reprobate is borrowed from Scots law where it is used to express the common law principles of election, namely, that no party can accept and reject the same instrument.

51. In the instant case while filing its suit and questioning the title of the Trust, the Club seeks to reject the lease deed. At the same time while seeking the equitable remedy under Section 114 of the Transfer of Property Act, the Club is relying on the same instrument of lease. Legally this is not permissible. (See the observation of Scrutton, L.J. in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 KB 608, which has been approved by a Constitution Bench of this Court in Bhau Ram v. Baij Nath Singh., AIR 1961 SC 1327).

52. The principle of election has been very felicitously expressed in the treatise EquityA Course of Lectures by F.W. Maitland, Cambridge University, 1947. The learned author has explained the principle thus:

'The doctrine of election may be thus stated: That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it..'

53. In the old equity case of Streatfield v. Streatfield, Wh & TLC, 9th Edition, Vol.I, 1928, this principle has been discussed in words which are so apt and elegant that I better quote them:

'Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both. The principle is stated thus in Jarman on Wills: That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it'. The principle of the doctrine of election is now well settled.'

54. This principle has also been explained by this Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593. Speaking for a three-Judge Bench of this Court, Venkatarama Ayyar, J. stated in the Report:

'23.  The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.

It is clear from the above observations that the maxim that a person cannot approbate and reprobate is only one application of the doctrine of election...'

55. On the doctrine of election the learned Judge in Nagubai Ammal case has also referred to Halsburys Laws of England (Vol. XIII, p. 464, Para 512) in which this principle of approbate and reprobate has been described as a species of estoppel which seems to be intermediate between estoppel by record and estoppel in pais."

22. The above principle squarely applies to the facts of the present case. The plaintiff cannot plead cause of action for filing the suit before this Court based on plaint documents 1 and 2 and also state that the clause conferring jurisdiction on courts at New Delhi or Calcutta as not binding.

23. Therefore, this Court is of the considered view that the purchase conditions have to be treated in its entirety and read as a whole. Once the plaintiff relies upon the purchase conditions for the purpose of laying the suit before this Court, it is also bound by the terms in respect of jurisdiction, where the parties have specifically agreed that the jurisdiction Court will be either at New Delhi or Calcutta. The interpretation made by the learned Senior Counsel for the plaintiff, based on documents subsequent to the Purchase Order and Work Order dated 8.5.2002 stating that part of the payments have been made and the balance alone remains to be paid could be an issue, which has to be decided in the suit or in the arbitration proceedings as may be advised. The admission of liability cannot vest this Court with jurisdiction to maintain the suit as prayed for when parties have agreed to otherwise.

24. The decisions relied upon by Mr.R.Murari, learned Senior Counsel cannot improve the case of the plaintiff on the plea of jurisdiction for the following reasons:

(i)In Rajasthan State Electricity Board v. Universal Petrol Chemicals Ltd., (2009) 3 SCC 107, the Supreme Court on a reading of the ouster clause contained in the agreement, came to hold that the only the courts at Jaipur have jurisdiction.

(ii)In Hakam Singh v. Gammon (India) Ltd., (1971) 1 SCC 286, the Supreme Court, by referring to the agreement which expressly states that the Courts in the city of Bombay will alone have jurisdiction, held that there was nothing wrong in agreeing to settle the dispute in two courts or more, provided such courts have jurisdiction under the Code of Civil Procedure. In the case on hand, the parties have agreed to two specific courts for resolution of the disputes, if any. The said decision will not in any way help the plaintiff on the present plea.

(iii)In Globe Transport Corpn. v. Triveni Engg. Works, (1983) 4 SCC 707, the Supreme Court interpreting Clause 17 of the contract held that the court in Jaipur City alone will have jurisdiction to entertain claims and disputes arising thereunder.

(iv)The decision in R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd., (1993) 2 SCC 130 is also based on the principle that the parties have agreed to a particular jurisdiction, as in the present case.

(v)In Angile Insulations v. Davy Ashmore India Ltd., (1995) 4 SCC 153, the Supreme Court upheld the agreement which subjected the jurisdiction to a particular Court and held that if the parties to the contract in clear, unambiguous, explicit and not vague terms agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves, the agreement would be valid.

(vi)A similar view was taken by the Supreme Court in Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., (2004) 4 SCC 671.

(vii)In New Moga Transport Co. v. United India Insurance, AIR 2004 SC 2154, which is a contra case, the Supreme Court held that where two courts or more have jurisdiction to try the suit, the parties by their consent may limit the jurisdiction to one of the two courts. The broader principle of this decision is that parties by agreement cannot confer jurisdiction on a court which otherwise will not have jurisdiction to deal with the matter. In the case on hand, there is no change in the position that the parties agreed to the jurisdiction of the Court of competent jurisdiction and they are bound by the said terms.

(viii)Similarly, in the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr. (2005) 7 SCC 791, the Court upheld the clause in the agreement which conferred jurisdiction on Delhi High Court, thereby making it clear that if the Court had jurisdiction, the agreement between the parties is binding.

(ix)Similar view has been reiterated in Balaji Coke Industry (P) Ltd. v. Maa Bhagwati Coke Gujarat (P) Ltd., (2009) 9 SCC 403.

(x)The decisions in Interglobe Aviation Ltd. v. N.Satchidanand, (2011) 7 SCC 463 and A.V.M. Sales Corporation v. Anuradha Chemicals Pvt. Ltd., (2012) 2 SCC 315 also reiterate the view that where jurisdiction is conferred on a particular court, that court alone shall have jurisdiction.

(xi)The decision in A.B.C. Laminart (P) Ltd. v. A.P. Agencies, (1989) 2 SCC 163 has been followed in all the decisions referred to above and it will be useful to refer to paragraphs 16, and 20 to 22 of the said decision, which read as under:

"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 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?

.....

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 at a particular place. This would 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., AIR 1979 Madras 16 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 specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like alone, only, exclusive and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim expressio unius est exclusio alterius  expression of one is the exclusion of another  may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.

22. Coming to clause 11 we already found that this clause was included in the general terms and conditions of sale and the order of Confirmation No. 68/59 dated 2-10-1974 with the general terms and conditions was sent from Udyognagar, Mohmadabad, Gujarat to the respondents address at 12 Suramangalam Road Salem, Tamil Nadu. The statement made in the special leave petition that Udyognagar, Mohamadabad, Gujarat is within the jurisdiction of the civil court of Kaira has not been controverted. We have already seen that making of the contract was a part of the cause of action and a suit on a contract therefore could be filed at the place where it was made. Thus Kaira Court would even otherwise have had jurisdiction. The bobbins of metallic yarn were delivered at the address of the respondent at Salem which, therefore, would provide the connecting factor for court at Salem to have jurisdiction. If out of the two jurisdictions one was excluded by clause 11 it would not absolutely oust the jurisdiction of the court and, therefore, would not be void against public policy and would not violate Sections 23 and 28 of the Contract Act. The question then is whether it can be construed to have excluded the jurisdiction of the court at Salem. In the clause any dispute arising out of this sale shall be subject to Kaira jurisdiction ex facie we do not find exclusionary words like exclusive, alone, only and the like. Can the maxim expressio unius est exclusio alterius be applied under the facts and circumstances of the case? The order of confirmation is of no assistance. The other general terms and conditions are also not indicative of exclusion of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the court at Salem which court otherwise had jurisdiction under law through connecting factor of delivery of goods thereat was expressly excluded. We accordingly find no error or infirmity in the impugned judgment of the High Court."

(emphasis supplied)

(xii)The said view in A.B.C. Laminart (P) Ltd. v. A.P. Agencies, referred supra, was followed in Swastik Gases P. Ltd. v. Indian Oil Corporation Ltd., 2013 (8) SCALE 433, wherein the Supreme Court has held as under:

"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 an 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 the 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 concerned clause. 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.

It is not necessary to refer to the decisions rendered by this Court in Harshad Chimanlal Modi v. DLF Universal Limited, (2005) 7 SCC 791 and Inter Globe Aviation Limited v. N. Satchidanand, (2011) 7 SCC 463 since they deal with an issue that does not at all arise in this case. In this context it may only be mentioned that the appellant in the present case did not dispute - that a part of the cause of action arose in Kolkata, as observed by my learned Brother Justice Lodha."

This decision is relied upon by the learned Senior Counsel appearing for the plaintiff to canvas the plea that the words "only", "alone", "exclusively" and the like are not found in the present agreement and therefore the High Court, Madras also would have jurisdiction, if cause of action partly had arisen in this Court. I am unable to accept such a plea. Even though the words "only", "alone" or "exclusively" are not used in the present agreement between the parties, the fact remains that the agreement has been consciously signed to state that the jurisdiction court will be at New Delhi or Calcutta. The words used are plain and unambiguous and nothing more needs to be said, as the parties have agreed that the Courts at New Delhi or Calcutta will have jurisdiction. The fact that part of cause of action arose within the jurisdiction of the courts in New Delhi is also not in dispute. Therefore, the above decision does not in any way further the case of the plaintiff herein.

Hence, the applicant/defendants objection is sustained in view of the specific clause on jurisdiction.

25. The application in A.No.3735 of 2013 is filed in terms of Section 151 of the Code of Civil Procedure. In view of the above, this Court is not inclined to dismiss the suit as prayed for in the above application. However, in terms of Order VII Rule 10 of the Code of Civil Procedure, the plaint is returned to be presented before the Court of competent jurisdiction, if so advised.

Accordingly, Application No.3735 of 2013 is ordered in the above terms. Consequently, connected Application Nos.3479 of 2013 and 3638 of 2012 are closed.

26.09.2013 Index : Yes Internet : Yes GLN/sasi R.SUDHAKAR, J.

GLN/sasi APP. NOS. 3735 & 3479 OF 2013 APP. NO. 3638 OF 2012 IN C.S. NO. 557 OF 2012 26.09.2013