Jhun Jhunwala Brothers vs N.K.M. Subbaramier

(1) This is a petition under S. 25 of the Provincial Small Cause Courts by Act by the defendant in O. S. No. 583 of 1962 on the file of the

Subordinate Judge''s Court, Madurai, to revise the judgment and decree, decreeing the plaintiff''s suit.

(2) The plaintiff sued for recovery of a sum of Rs. 1077-45 being the excise duty collected by the defendant from him which he alleged he was not

entitled to do. The defendant has got his factory near Cuttack and he supplied some soda bottles to the plaintiff at Madurai. In his bill he had

claimed excise duty which was newly levied on the goods which according to him were produced after 1-3-1961. The defendant took objection to

the jurisdiction of the Madurai Court to try the suit. He also raised other objections with which we need not concern ourselves in the view that I

take on the question of jurisdiction.

(3) Ex. B-4 is the relevant document which reads as follows:

Dear Sir,

Please supply the under-noted goods as per your terms of contract, printed on the back and despatch the same on our account and risk to

Madurai.

The terms of the contract printed on the back of Ex. B-4 in so far as they are relevant read as follows--

This order is subject to confirmation by the Works at Barang, S.E. Rly, and shall be considered as having been made at Barang and subject to the

jurisdiction of Cuttack courts only.

The learned Subordinate Judge in dealing with the question of jurisdiction remarked that part of the cause of action arose in Madurai and therefore

the Madurai Court has also got jurisdiction. He did not specifically consider the point that only the Cuttack Courts have got jurisdiction and not the

Madurai Court under the terms of the contract.

(4) The established position in law is where there are two courts which will have jurisdiction it is open to the parties to agree that only one of those

courts will have jurisdiction to try the suit. The question in this case therefore reduces itself to this: ""Whether the contract as evidenced by Ex. B-4

in this case ousts the jurisdiction of the Madurai Court""? It will be necessary to refer to certain decisions in this connection.

(5) In Achratlal Kesavlal Mehta and Co., by Proprietor Achratlal and Kesavlal Vs. Vijayam and Co., , the term of the contract was ''in all legal

disputes arising out of this contract Ahmedabad will be understood as the place where the cause of action arose."" It was held that this agreement is

valid and must be given effect to and it is not open to the Madras Court of Small Causes to entertain the suit.

(6) In Kondepu Raghavayya Vs. Elukooru Vasudevayya Chetty, the term in the contract required that the suits should be filed in Nandyal. But the

suit was actually filed in Bezwada and the court held that the suit could not be filed in Bezwada.

(7) In Hoosen Kasam Dada (India) Ltd. Vs. Motilal Padampat Sugar Mills Co. Ltd., the relevant clause in the contract read as follows: ''All

disputes in respect of this contract shall be settled by arbitration failing which shall be settled by arbitration failing which shall be settled in court of

seller''s jurisdiction where this contract shall be deemed to have been entered into"". It was held that this was a valid contract and therefore, the suit

could be entertained only by the court within which the seller had his place of business.

(8) The only decision which takes a slightly different view is the one in Patel Bros. Vs. Vadilal Kashidas Ltd., . There the words ''subject to

Bombay jurisdiction'' were found in the bill issued by the defendant. Ramachandra Aiyar J. as he then was observed as follows--

Ex. P-1 says that the transaction is ''subject to Bombay jurisdiction''. But it does not exclude the jurisdiction of any other Court. In my opinion

ouster of jurisdiction of a court to which a person is entitled to resort to under the CPC 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. It cannot be said

that this test is satisfied in this case.

The learned Judge also relied upon the decision of Balkrishna Aiyar J. (Ramchandra Sahu v. Sirdarmal Kasarimal and Co.) in C. R. P. No. 1010

of 1953 (Mad) wherein the words ""subject to Berhampur Jurisdiction"" in the letter head of the defendant was held not to oust the jurisdiction of the

Madras Court. But it will be noticed that in the present case the ouster of jurisdiction is specifically made a term of the contract and the contract

also says that the contract shall be subject to the jurisdiction of Cuttack Courts only. In fact both in the decision in Achratlal Kesavlal Mehta and

Co., by Proprietor Achratlal and Kesavlal Vs. Vijayam and Co., , as well as in Hoosen Kasam Dada (India) Ltd. Vs. Motilal Padampat Sugar

Mills Co. Ltd., the word ''only'' was not used. Even so, the courts held that only the courts mentioned in the relevant terms of the contract had

jurisdiction and not any other court. The considerations that weighed with the learned Judge who decided the case in Patel Bros. Vs. Vadilal

Kashidas Ltd., do not apply here because there it was considered that the ouster of jurisdiction was not specifically a matter of contract. Here it is

clearly a part of the contract. I hold, therefore, that the Madurai court had no jurisdiction to entertain this suit.

(9) The result would be that the decree of the learned Subordinate Judge at Madurai would have to be set aside. The plaint will be returned for

presentation to the proper court. There will be no order as to costs. The plaint will have to be presented in the Cuttack court within a fortnight of

its return by the Sub-Court at Madurai to the plaintiff.

NRK/G.G.M.

(10) Petition allowed.