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Judgment
The present appellant, who before the court of learned 4th Jamnagar in Special Civil Suit No. is the original defendant Joint Civil Judge (S. D.),
205/1991, has challenged the judgment and decree passed by the trial Court on 20th March 1999. The present respondent is original plaintiff before the
trial Court. For the sake of convenience and brevity, the parties are hereinafter referred to as the “plaintiff†and “defendantâ€.
Short facts of the present case may be referred to as under:
That, the plaintiff is a partnership firm carrying on business of salt at Salaya of Jamnagar District. The defendant, being a limited company, is doing its
business at Chandigadh. On behalf of the defendant, Mr. Jindal contacted on telephone on 11th May 1991 and ordered the plaintiff to supply two rakes
of industrial salt, which was accepted by the plaintiff and the agreed rate fixed was of Rs. 245/- F.O.R. loading station per M.T. As per contention of
the plaintiff, it was agreed in the course of telephonic communication that the plaintiff would be responsible only to load goods in the wagon, its weight
was to be made on public weigh bridge and receipts thereof would be sent to the defendant along with the goods. Thereafter, on 11th May 1991, a
contract was placed and confirmation was sent by the plaintiff through phonograph on 15th May 1991 to the defendant. On 21st May 1991, printed
purchase order was dispatched by the defendant, wherein, plaintiff put his signature as a routine work. In the purchase order, certain conditions were
imposed contrary to law and agreed contract. That, once contract was concluded and completed on telephone at Jamnagar, conditions imposed in the
purchase order had no legal effect. The plaintiff dispatched first rake of salt weighing about 1700 MT on 1st July 1991 and another on 29th July 1991.
That, necessary bills were sent along with weigh bridge slips to the defendant. That, as agreed, payment of the goods was to be made at Jamnagar by
the defendant. Therefore, Rs. 8,52,424.62 Ps. was to be paid by the defendant at Jamnagar. However, out of the said amount, defendant paid only Rs.
6,83,695/50 ps. That, as such, the plaintiff was entitled to recover balance amount which was withheld illegally by the defendant. Hence, civil suit was
filed by the plaintiff. On receipt of the summons issued by the Court, defendant appeared and resisted the suit on various grounds by filing its written
statement vide Exh. 18. Primarily, it was objected that the Court of law at Jamnagar had no jurisdiction in the matter, in view of conditions
incorporated in the purchase order dated 21st may 1991, which was confirmed by the plaintiff vide letter dated 29th May 1991. It was also denied that
Mr. Ajay Jindal had contacted the plaintiff on telephone on 11th May 1991 and contracted to supply of salt, as alleged in the plaint. That, the
defendant, being a Public Limited Company, having no system of placing orders on telephone. That, plaintiff was to supply 3400 M.T. of salt at the
rate of Rs. 245/- per MT FOR loading station. That, the terms and conditions incorporated in the purchase order were binding to both the parties.
That, deduction made by the defendant company was legal and correct. That, the goods were unloaded at Naya Nangal in presence of plaintiff’s
representative and it was agreed that the payment would be made on the basis of actual receipt of salt at Naya Nagnal, after deducting penalty etc.
That, the defendant had not received full quantity of salt, as per the order and as per weightment slips, and therefore, penalty was imposed for a
shortage as per debit notes supplied by the plaintiff. That, defendant was not liable to make further payment as prayed by the plaintiff. At the end, it
was requested by the defendant to dismiss the suit with exemplary costs.
Learned trial Judge framed issues vide Ex. 9. After recording evidence both-oral as well as documentary, learned trial Judge was pleased to decree
the suit of the plaintiff directing the defendant to pay Rs. 1,78,855.12 ps. (Rupees One Lac Seventy Eight Thousand Eight Hundred Fifty Five and
Twelve paisa only) to the plaintiff with interest at the rate of 6% per annum from the date of filing of the suit till its realization. Hence, this appeal.
Heard learned advocate Mr. Baiju Joshi for Mr.Shirish Joshi, learned advocate for the appellant/original defendant and Mr. E. K. Parmar for Mr.
Nirav C. Thakkar, learned advocate for the respondent/original plaintiff It was submitted by learned advocate for the appellant/original defendant that
the judgment and decree passed by the trial Court is completely against the terms and conditions incorporated in the purchase order dated 21st May
1991 (Ex. 55). That, no amount remains due and payable to the plaintiff by the defendant. That, purchase order (Ex.55) was signed by the plaintiff.
That, no objection was raised by the plaintiff regarding the contents and conditions of purchase order. That, it was specifically admitted by the plaintiff
that Chandigadh court has exclusively jurisdiction in any dispute which arises between the parties. That, in the document Ex. 55, it was clearly
mentioned that the payment would be made for actual receipt of salt by the defendant, however, the trial Court has committed an error by ignoring the
said condition imposed in the purchase order dated 21st may 1991. That, there was shortage of salt supplied to the defendant by the plaintiff, and
therefore, deduction of amount was made by the defendant as agreed in the purchase order. That, plaintiff was to load 100% weightment of salt at
Khambhalia and weigh bridge and payment was to be made on the basis of actual receipt of salt after taking penalty etc. That, the trial Court has
committed grave error in not considering the said aspect. That, there was never any telephonic talk with the plaintiff with the representative of
defendant on 11th May 1991, as it was a non-working Saturday for placing any order of salt. That, purchase order Ex. 55 was signed by the plaintiff
and the conditions incorporated were agreed by the plaintiff. That, defendant carries out its business at Chandigadh, and therefore, jurisdiction
according to Section 20 CPC lies with the Court of Chandigadh only. Trial Court has committed grave error in allowing the suit of the plaintiff. In
support of his arguments, learned advocate for the respondent relied upon a decision in the case of “A.V.M. Sales Corporation v. Anuradha
Chemicals Private Limited, reported in (2012)2 SCC 315 and requested this Court to quash and set aside the judgment and decree passed in favour of
the plaintiff by allowing the appeal. He has also drawn attention of this Court towards provisions of Section 2(b)(c)(d) of the Contract Act and written
arguments placed before the trial Court.
Per contra, learned advocate for the respondent/original plaintiff has supported the impugned judgment and decree passed by the trial Court. Learned
advocate for the respondent has submitted that the original plaintiff has proved its case in all respects. That, the plaintiff has examined necessary
witnesses to prove the contents of the contract entered in to by and between the parties, placing order of salt 3400 MT at Jamnagar. Mr. Ajay Jindal,
representative of defendant contacted representative of the plaintiff on telephone on 11.05.1991 and on 21st May 1991, placed the written purchase
order for supplying the salt. The said statement was proved by examining witness of the plaintiff before the trial Court. That, defendant has not
entered into the witness box for defence. That, there was no agreement as defended by the defendant. That, the contract exists as per the terms and
conditions mentioned in the purchase order (Ex. 55). That, such telephonic talk with the defendant is not acceptable as stated in the written statement.
That, the contract itself means that the goods were to be delivered at the risk of the purchaser. RRAR in the name of purchaser/defendant and
therefore defence forwarded in respect of jurisdiction of the court is not tenable. That, no error was committed by the trial Court in decreeing the suit
of plaintiff. Hence, it was requested by learned advocate for the respondent to dismiss present appeal.
Having heard learned advocates for the respective parties and on perusal of the original record and proceedings of the trial Court, it appears that the
trial Court after considering the contentions raised by the parties, was pleased to frame the issues vide Ex. 9 on 25.09.1991. Necessary documents
were produced vide Ex. 46 seeking permission by the plaintiff. It appears from the record that witness from the plaintiff, namely, Vrujlal Dwarkadas, a
partner of the plaintiff firm, was examined vide Ex. 67. He has clearly stated that the business place of plaintiff was situated at Salaya and its office
was situated at Jamnagar. That, all the transactions, contracts, correspondence, payments and books of account were kept by the plaintiff firm at
Jamnagar. Registration certificate of the partnership firm was also produced by him. He further states that there was a contract for supply of two
racks of salt means 1700 MT each, on telephone. It was a contract with Mr. Ajay Jindal of the defendant company at a price of Rs. 245/- per MT.
That, this salt was to be supplied on or before 30th June 1991. He has produced necessary documents in respect of the contact vide Exh. 61 and 65.
He has stated that from the factory of the plaintiff at Salaya, goods were supplied to the defendant from Khambhalia Railway Station. Vide Ex. 38
and 39, he has produced bills issued by the plaintiff in favour of the defendant. That, freight of the transportation order was to be paid by the
defendant. That, accounts were regularly kept by the plaintiff; including the defendant. While showing original Khatavahi for the year 1991-1992, he
has stated that it was the account of the defendant and necessary entires in the accounts as regard selling of goods were made at page no. 37, 91, 122
and 151. Bank Rojmel was also shown to this witness. He has further stated that at page no. 10, 14, 16, necessary entries of the transaction were
made by the plaintiff. That, amount credited by the defendant was also shown in the books of account. He has further stated that such entires were in
the hand writing of accountant Shri Pravinbhai T. Trivedi (who expired since last two years). He has produced necessary documents. In his
deposition, he has further stated that the amount of Rs. 1,67,733/-was due with the defendant. That, frequently, the defendant was contacted to pay
the remaining amount, but no amount was paid by the defendant. This witness has further stated that debit notes Ex. 51 and 52 executed by the
defendant were not correct. That, no amount was to be credited by the plaintiff. That, before filing the suit, legal notice was issued by the plaintiff and
it was replied by the defendant. It is denied that defendant was only responsible to pay the amount of goods, as per the freight while accepting the
goods at Chandigadh. It was further denied that there was shortage of goods supplied by the plaintiff. That, weighing of goods was arranged through
Hindustan weigh bridge and it was supplied thereafter to the defendant. In the purchase order Ex. 55, in a routine course, he had put his signature. It
was denied that any condition incorporated in the document Ex. 55 were accepted by the plaintiff. In his cross-examination, he has admitted that
before making phonograph, transaction of the documents Ex. 61 to 64 was completed. He has further admitted that as per his request, contract Ex. 55
was received by him. It is clarified by this witness that there was no any contracts but it was a purchase letter and on receiving the purchase letter, he
had put his signature. Before signing document Ex. 55, it was not read over by this witness. He has further stated that thereafter, this document Ex.
55 was returned back to the defendant by a forwarding letter. No entry was made in connection with any telephonic talk. It was denied that when the
goods were received by the defendant, representative of the plaintiff was present. It was further denied that Shri Jaydeepbhai Bhatt from the plaintiff
had visited the defendant to receive the payment. It is further denied that in the purchase order, it is stipulated that the Court of law at Chandigadh had
only jurisdiction to try the suit. When the payment of goods was made at Khambhalia, this witness was present.
Another witness Jitendrabhai Ramgar was examined vide Ex. 81 by the plaintiff. This witness was working with Hindustan Weigh Bridge, since eight
years at Khambhalia. As per his duty, he had to weigh the goods forwarded to him. He know that the plaintiff is a partnership firm. Shri Vajubhai was
with him for weighing goods. He has described the procedure of issuance of slips, after weighing goods. While showing necessary receipts; 155 in
numbers, this witness has stated that some of the receipts at Sr. No. 5 to 37 were written by Shri Kishangiri Vallabhgiri Gosai. He has identified hand
writing of this person. Other slips or receipts were under his hand writing. All the receipts are exhibited vide Ex. 83 jointly. This witness was also
cross-examined by the defendant side, but no favourable answer was received by the defendant.
It appears from the record that nobody entered into the witness box from the defendant side before the trial Court for denying the deposition of
plaintiff’s witnesses.
It was the duty on the part of defendant to contradict the evidence laid by the plaintiff before the Court, but no effect was made by the defendant to
deny or contradict the evidence laid by the plaintiff.
So far as jurisdiction of Civil Court at Jamnagar is concerned, it is true that in a purchase order issued by the defendant, being No. 05/6248 dated
21.05.1991, in favour of the plaintiff, the agreed rate was fixed at Rs. 245/- per MT FOR loading station. It is also true that this purchase order was
accepted by the plaintiff on 29th May 1991. It was issued from the office of the defendant at Chandigadh. As per the order, plaintiff was obliged to
supply industrial salt to the defendant at Naya Nangal. If we consider this purchase order, Clause-13 thereof provides that the Court at Chandigadh
has jurisdiction to entertain the suit. Against this, plaintiff’s witness Vrujlal Dwarkadas has clearly stated in his evidence Ex. 67 that the
partnership firm of the plaintiff was situated at Jamnagar and the place of business at Salaya. He has further stated that for the business, all the
contracts, agreements, correspondence, payments and books of account were kept at Jamnagar. He has further stated that on telephonic talk with
Shri Ajay Jindal, on 11.05.1991, a contract for supplying 1700 MT industrial salt in two racks was agreed at Rs. 245/- per MT. As per evidence of this
witness, from Khambhalia Railway station, goods were supplied to the defendant. Necessary bills Ex. 38 and 39 were produced by this witness.
Oral evidence of the witnesses was not challenged by the defendant nor it was contradicted that partnership firm of the plaintiff was not situated at
Jamnagar. Purchaser order was received by the plaintiff for the goods at Jamnagar and the place of business of the plaintiff was at Salaya. The goods
were dispatched by the plaintiff from Khambhalia. Telephonic talk admittedly was made with the plaintiff at Jamnagar, therefore, is no reason to
invoke clause 13 in the purchase order Ex. 55, nor it would come in the way of the Civil Court in respect of trying the suit, filed by the plaintiff.
Learned advocate for the respondent has relied upon a decision in case of “A.V.M. Sales Corporation v.
Anuradha Chemicals Private Limited, reported in (2012)2 SCC 315, wherein it is held that when the parties have agreed to submit to jurisdiction of
courts, no other court would have jurisdiction by virtue of exclusion clause in agreement. As discussed above, in the instant case, since invoices of
goods in question were raised at Jamnagar, goods were dispatched from Khambhalia and money was payable to the plaintiff at Jamnagar. In view of
this, in my view, the same comprised part of the bundle of facts giving rise to the cause of action for a Suit. At the same time, since the defendant in
the Suit had its place of business at Chandigadh and the purchase order for supply of the goods was also placed at Chandigadh; the goods were to be
delivered at Naya Nangal, a part of the cause of action also arose within the jurisdiction of the Courts at Chandigadh for the purposes of the suit.
Accordingly, both the Courts within the jurisdiction of Chandigadh and Jamnagar had a jurisdiction under Section 20 of the Code of Civil Procedure,
1908 to try a suit, as part of the cause of action of the suit had arisen within jurisdiction of both the said courts. Hence, judgment relied upon by
learned advocate for the respondent would not be helpful, as the evidence of the plaintiff was never denied by the defendant.
Here, no facts were brought on record by the defendant that it brought to the notice the fare in respect of ouster of jurisdiction of other except
jurisdiction. There is no separate agreement in respect of jurisdiction. Hence, in absence of any evidence in respect of ouster of jurisdiction, as brought
to the knowledge of the plaintiff, document Ex. 55 (purchase order) is not sufficient to establish that the Court at Jamnagar has no jurisdiction.
Further more, in the facts of the case, it could not be gainsaid that the cause of action, and at least part of it arose, at Jamnagar so as to attract
jurisdiction of the Civil Court at Jamnagar is not correct. The trial Court has rightly reasoned on the correspondence between the parties to observe
that they were addressed to the place of plaintiff at Jamnagar. These events form part of bundle of facts constituting cause of action. This Court, in
case of Greentose Pvt. Ltd. v. Gujarat
Naramada Valley Fertilizers Co. Ltd., reported in 2015(3)GLH 580, has observed that:
“7.1 The cause of action in the suit arising out of contract, would arise within the meaning of Section 20(c) of the Code of Civil Procedure 1908.
Such cause of action may arise at the place where the contract is made. It may arise at the place where contract is to be performed or came to be
performed. The cause of action may also arise at the place where in performance of the contract, any money due thereunder expressly or impliedly
has to be carried out.â€
As discussed above, no oral evidence was adduced by the defendant in support of its denial in the written statement. The evidence of the plaintiff Exh.
67 was unchallenged as well as documents Exh. 61 to 65 and 78 and 55. A theory of telephonic talk with the defendant was denied, but not supported
by any oral evidence. No doubt, as there was oral telephonic talk and agreement was agreed upon, however, it was the duty of defendant to establish
that no amount was due to the plaintiff and all the amount, as per the bills, was already paid to the plaintiff, as contended in written statement. In
absence of any oral evidence adduced by the defendant in support of his defence, only evidence laid by the plaintiff would require to be considered.
From the record, it cannot be said that plaintiff was responsible for supplying the goods as per the purchase order Exh. 55. If any shortage of the
goods, no fault can be fastened on the plaintiff in absence of any evidence from the defendant side. Thus, the trial Court has rightly accepted version
of the plaintiff by allowing the suit.
For the foregoing observations and reasons and the position of law emerging, the impugned judgment and decree dated 20.03.1999 passed by the trial
Court did not require any interference in this appeal. The impugned judgment and decree dated 20.03.1999 passed by the trial Court on various issues
is proper and legal on all counts, requiring no interference by this Court.
Accordingly, the present appeal stands dismissed. Impugned judgment and decree dated 20.03.1999 passed by learned 4th Joint Civil Judge (S.D.),
Jamnagar in Special Civil Suit No. 205 of 1991 stands confirmed. No order as to costs.
Record and proceedings be returned back to the trial Court forthwith.