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Judgment
S. Rajeswaran, J.—This Tr.O.P. No. 428/2006 has been filed u/s 34 of the Arbitration and Conciliation Act, 1996, hereinafter called "the Act", to set aside the award dated 9.2.2001 made by the 2rd respondent and directing the 1st respondent to pay the cost of this petition.
This O.P., has been filed by the petitioner who is the son of one K.R. Varghese who stood as guarantor to 2nd respondent herein in a hire purchase agreement dated 30.5.1995 entered into between respondents 1 and 2 in respect of Comet 1611/All vehicle bearing Regn. No.
KLA.3135.
2nd respondent as a hirer had to pay a total hire purchase money of Rs. 6,72,039/- in monthly instalments commencing from 30.5.1995 and ending on 29.5.1998. As 2nd respondent committed default, 1st respondent repossessed the vehicle and sold the same for Rs. 1,50,000/-. After adjustment of sale proceeds, there was a due of Rs. 2,13,667/- and therefore 1st respondent filed a claim statement before the 2 rd respondent arbitrator against 2nd respondent and the father of the petitioner, who was the guarantor. 2nd respondent-arbitrator by award dated 9.2.2001 directed the 2nd respondent and the petitioner herein to pay 1st respondent jointly and severally a sum of Rs. 2,54,231/- with simple interest at 18% per annum from 10.2.2001. Aggrieved by this award, the petitioner has filed the above O.P., u/s 34 of the Act, 1996.
It is the case of the petitioner that his father alone is the guarantor who passed away and in such circumstances a notice should have been issued to him by 2 rd respondent-arbitrator before making the petition jointly and severally liable to pay the awarded amount.
Heard the learned Counsel for the petitioner and the learned Counsel for 1st respondent. 2nd respondent did not appear before this Court nor he challenged the award separately. I have also perused the documents filed and the judgments referred to by them in support of their submissions.
The learned Counsel for 1st respondent agreed that notice should have been served on the petitioner before making him liable to pay the amount on behalf of his father who was the guarantor to the hire purchase agreement. But the learned Counsel for 1st respondent submitted that the O.P., is not maintainable before this Court for want of territorial jurisdiction.
The learned Counsel for the petitioner however submitted that in view of the fact that 1st respondent's office is situated in Chennai and in view of the Clause 21 of the Hire Purchase Agreement, this Court has jurisdiction to entertain this O.P.
I have considered the rival submissions very carefully with regard to facts and citations.
Since the counsel for 1st respondent admitted that the award is bad for want of service of notice insofar as the petitioner is concerned, the only question that arises for consideration is that whether this Court has territorial jurisdiction to entertain the above O.P.
The Hire Purchase Agreement dated 30.5.1995 was executed at Kochin by 1st respondent's Kochin's office with 2nd respondent and the father of the petitioner herein. It is an admitted fact that both of them are residents of Kerala state and the address given in the agreement reflects the place at Thrissur. The vehicle was also registered at the Additional Registering Authority, Thrissur, Kerala. The default was also committed in that State and the vehicle was repossessed there only. In such circumstances none of the cause of action arose within the jurisdiction of this Court.
It is true that under Clause 22 of the Hire Purchase Agreement dated 30.5.1995 it is stated that the venue of arbitration shall be at Madras and the courts at Madras alone and no other courts whatsoever will have jurisdiction to try any dispute arising out of the agreement. It is also not in dispute that the Registered office of 1st respondent is situate in Chennai. But when there is no cause of action within the jurisdiction of this Court, the parties cannot by agreement and consent confer jurisdiction on this Court and merely having the Registered office at Chennai is not sufficient to bring a part of the cause of action in Chennai.
In Hakam Sing Vs. Gammon (India) Ltd., the Hon'ble Supreme Court after going through the particular clause in the written tender that notwithstanding the place where the work under this contract is to be executed, it is mutually understood and agreed by and between the parties hereto that this Contract shall be deemed to have been entered into by the parties concerned in the City of Bombay and the Court of law in the City of Bombay alone shall have jurisdiction to adjudicate thereon held that in terms of the clause of the agreement and also of the fact that the Head Office was in Bombay, the courts in Bombay alone shall have jurisdiction to try the proceedings.
In Ram Rattan Bhartia Vs. Food Corporation of India and Others, , the Full Bench of the Delhi High Court after following the Hakam Singh's case (cited supra) held that the residence or carrying on business of a party was relevant for determining that the territorial jurisdiction in arbitration cases.
In A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies, Salem, , the Supreme Court held as follows:
From the foregoing decisions it can be reasonably deducted 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.
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 respondent's address at 12 Suramangalam Road Salem, Tamil Nadu. The statement made in the SLP 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 exclusive 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.
In the result, this appeal fails and is dismissed. We, however, leave the parties to bear their own costs.
Citing the above decisions, the learned Counsel for the petitioner submitted that in this case also the registered office of 1st respondent is situated in Chennai and Clause 22 of the agreement confers exclusive jurisdiction on the courts in Chennai alone and therefore the above O.P., is maintainable before this Court.
I am unable to accept the above submission of the learned Counsel for the petitioner.
In M/s. Patel Roadways Limited, Bombay Vs. M/s. Prasad Trading Company, , the three Judges Bench of the Hon'ble Supreme court after going through the decision reported in Hakam Singh's case (cited supra) (which was rendered by two Judges Bench), held that when Clause "c" of Section 20 CPC is not attracted to confer jurisdiction on courts at Bombay and the appellant admittedly has its subordinate office at respective places where the goods in the two cases before Supreme Court were delivered to it for the purpose of transport, the courts at Bombay, where the principal office is situated had no jurisdiction at all to entertain the suits and the parties could not confer jurisdiction at courts at Bombay by an agreement.
In view of the above decisions of the Supreme Court, I am of the considered view that this Court has no jurisdiction to entertain the above O.P., on the basis of Clause 22 of the agreement as parties cannot confer jurisdiction on courts at Chennai, when Section 20(c) of CPC is not attracted to confer jurisdiction on courts at Chennai.
Hence the above Tr.O.P., is dismissed for want of territorial jurisdiction and it is open to the petitioner to take appropriate steps to follow the matter further in accordance with law. No costs.