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Judgment
P.A. Choudary, J.—This letters Patent Appeal is filed by the plaintiff against the judgment of our learned brother Jeevan Reddy., J. who , by his order dated 29-12-1976 confirmed the judgment of the learned Subordinate Judge Kakinada.
The main question raised before us as in the Courts below is, whether in the facts and circumstances of the case, the plaintiff is entitled to the benefit of Section of 14 of the Limitation Act. But it has its subsidiaries.
The plaintiff is a Madrasi trader while the defendant is a businessman of Samalkot, East Godavari District in Andhra Pradesh. The plaintiff entered in to a contract with the defendant on 26-5-1964 for the supply of polythene liners of certain specified varieties for delivery in June and July F. O. R. Cuddalore O. T. by M. B. T. Lorry service. He also paid to the defendant an advance of Rupees 10,000/- by a cheque drawn on a Madras Bank. According to the terms of the contract, the defendant should send the documents through bank and the balance of the purchase money should be paid by the plaintiff of the delivering June and July consignments which he delivered only in August. The July consignment he delivered only in part. The plaintiff had placed another order on 26-5-1964 with the defendants for the supply of another consignment of polythene liners to be delivered in August on similar terms (more or less). While the July consignment was delivered by the defendant. The plaintiff therefore, cancelled his contract with the defendant under Ex. B-11 dated 3-8-1964. Some time after the receipt of the aforesaid Ex. B-11, the defendant sent a telegram on 1-9-1964 to the plaintiff saying that the goods were ready but, since the contract was cancelled by the plaintiff, the goods would be disposed of at the plaintiff''s risk. The next day on 2-9-1964, the defendant had sent another telegram. Ex. B-23, stating that the goods had been disposed of and he suffered a loss of about Rupees 1,200/- and odd which amount he called upon the plaintiff to make good.
The plaintiff then sued the defendant in the Madras City Civil Court on 3-9-1964 claiming refund of Rs. 9,600/- out of the money already paid. He also claimed a sum of Rs. 3,146/- towards damages. The plaintiff''s suit was numbered as O. S. No. 2928 of 1964 on the file of the City Civil Court, Madras.
The defendant in his turn , filed a small Cause suit at Kakinada in O. S. No. 504 of 1964, claiming a sum of Rupees 1,185-60. The defendant''s suit was however, stayed in view of the Madras Suit instituted earlier.
In the Madras Suit, the defendant filed a written statement denying his liability. He also contended that the Madras Court had no jurisdiction to try the suit in view of the Clause contained in the contract which provides "what all disputes between the parties, shall be subject of Kakinada jurisdiction". The Madras Court, upheld the objections of the defendant based upon the aforesaid exclusionary terms. It appears, that the defendant''s request that the issue relating to the jurisdiction might be tried as a preliminary issue was successfully opposed by the plaintiff. However, the Madras Court found that in view of the aforesaid exclusionary clause it had no jurisdiction to try the suit and accordingly, returned the plaint on 29-2-1968. The plaintiff resubmitted the plaint to the Kakinada Court on 7-1-1968, (?) with an added endorsement thereon, that the suit was bona fide presented to Madras Court having jurisdiction, and therefore, the period of pendency of the plaintiff''s suit in Madras Court, had to be excluded for purpose of limitation.
It may be mentioned that the Madras Court had not found that no part of cause of action arose in Madras. On the other hand, it has found that a part of the cause of action arose at Samalkot where the defendant carries on the business and "the Court at Kakinada will have also jurisdiction". In other words, the Madras Court returned the plaint not on the ground that no cause of action (arose) within the territorial limits of Madras Court but only because of the aforesaid contractual term which it interpreted as barring the jurisdiction of all courts excepting Kakinada Courts.
The defendant filed his written statement in Kakinada Court once again denying his liability. He also contended that the plaintiff was not entitled to the benefit of Section 14 of the Limitation Act and therefore, the suit was barred by time. The trial court at Kakinada held:
"1. That no part of cause of action had arisen at Madras;
that the plaintiff has made mala fide averments knowingly in his plaint to give jurisdiction to the Madras Court;
* * * *
that the plaintiff knew of the clause in the Order Form. In spite of the same, he deliberately instituted the suit at Madras and therefore, he was not acting either bona fide or in good faith within the meaning of Section 14 of the Limitation Act and
that the plaintiff should at least have taken the steps earlier for taking the return of the plaint and ought not to have waited till the expiry of three years period of Limitation until the final decision of the Madras Court"
On merits , the Kakinada court found that the plaintiff had made out his case, that the defendant was guilty of breach of contract and accordingly , the plaintiff is entitled to the refund of the amount. It however , negatived the plaintiff''s claim in so far as the damages claimed by him were concerned.
Having been aggrieved by that order of the trial Court, the plaintiff brother Jeevan Reddy, J. The learned Judge considered the question whether the plaintiff was entitled to the benefit of Section 14 of the Limitation Act and held he was not so entitled. In reaching that conclusion , he relied upon several circumstances. Our learned brother relied upon the fact that the plaintiff stated in his plaint that the contract took place at Madras on 26-7-1964 and cause of action arose at Madras. Our learned brother also mentioned that the plaintiff stated that Rs. 10,000/- by cheque , were given to the defendant at Madras and that the contract was to be performed at Madras. The learned Judge also noted the plaint allegation that the plaintiff accepted the defendant''s offer at Madras for August delivery on 8-7-64.
The learned Judge expressed doubt about the veracity of the aforesaid plaint allegations in the light of the evidence given by the plaintiff in the witness box. In his evidence, the plaintiff stated that he came to Samalkot and signed the contract for June and July deliveries and he gave a cheque at Samalkot drawn on Indian Bank, Madras. The learned Judge, therefore, held that the first contract was entered into at Samalkot and the statements of the plaintiff that the contract was entered into at Madras, that the advance was paid at Madras and that the contract was to be performed at Madras were obviously false. The learned Judge also held that in view of the Clause subjecting all disputes to Kakinada jurisdiction barring the jurisdiction of the Madras Court, even the August delivery was not within the jurisdiction of the Madras Court.
Upon the aforesaid factual foundations, the learned Judge raised the question whether the plaintiff acted bona fide and in good faith in Instituting the suit at Madras. The learned Judge answered that the Advocate could not have stated in the plaint that the contract took place at Madras and that the advance was paid at Madras etc., except on the false instructions of the plaintiff. The learned Judge thought that the plaintiff did not place all the papers before his Advocate at Madras. The learned Judge said ''If the plaintiff had really placed all the papers before his advocate, there could have been no scope for any doubt about the proper court to entertain the said suit'' because , the decision of the Madras High Court in Jhunjhunwala Bros. V. N. K. M. Subbaramier (1967) 80 MLW 93, and Peruthikottai Village Welfare (Podundla) Sangam v. Palaniyadi Kandiar (1969) 82 MLW 445 were all rendered much later to the institution of the suit and therefore, the plaintiff''s counsel could not have been aware of the same. The learned Judge also noted that there was no material to show that the plaintiff''s counsel was aware of the unreported decision of Balakrishna Aiyer J. in C. R. P. No. 1010 of 1953 (Mad) referred to in Jhunjhunwala Bros. V. N. K. M. Subbaramier, according to which, the Madras Court would have jurisdiction. The learned Judge opined that in the state of the decided cases up to the date of tendering the opinion, no Advocate exercising due care and attention would have advised the plaintiff that the Madras Court also has jurisdiction. The learned Judge, therefore, concluded that the plaintiff must have misinformed his Madras counsel about the place of entering into the contract and the place of payment of advance and the place of performance of the contract and it was that misinformation which led to the institution of the suit at Madras. The learned Judge also counted the opposition raised by the plaintiff to the defendant''s request for the preliminary issue relating to the jurisdiction of the Madras Court being tried first as a circumstance showing want of bona fides and good faith on the part of the plaintiff.
On the facts and circumstances of the case, it is vital to note the terms and conditions of the contract, Ex. A-29 which is exhibited as shown below:-
"Central S. T. No. 494 D/- 29-3-62, Grams: Bansidhar. A. P. G. S. T. No. 2100 dated 1-12-62. Phone 14. Mohan polythene & Plastic Products Co.,
Industrial Estate: Samalkot.
(East Godavari Dist.).
Andhra Pradesh:
Dated: 26-5-1964.
Order No.
From M/s. R. Kuppuswamy Chetty and Son 17, Ramanan Road, G. T. Madras - 1.
Please arrange to supply us the following goods.
__________________________________________________________________________________
Quantity Particulars Per Rate
__________________________________________________________________________________
Polythene liners June Delivery.
Seven 7000 Nos. x24''x8''x225G 778/1000
thousand. 7000 Nos.x281/2x40''x225G 972/1000
July delivery..
14000 Nos.24''x38''x225G 778/1000
14000 Nos.281/2x40''x225G 972/1000
F. O. R. Cuddalore C. T. by M. B. T Lorry service. Central Sales-tax to be charged extra.
Advance received by cheque Rs, 10,000/- balance against documents through Bank. Terms of Payment: @ 21/2 (two and half per cent only) to be deducted in invoice.
M. G. S. T. No. 4501.
C. S. R. No. 231 D/- 27-6057.
Despatch instruction:
for Mohan Polythene and Plastic Products Co.
Sd. A. K. Mohan, Proprietor,
deleted.
Sd/-. _________________
Signature of the party.
(Installed A. K. M.)
All disputes subject to Kakinada jurisdiction.
Goods once sold will not be taken back.
Our responsibility is over once the goods leave our premises.
Bank charges for collection of cheque Rs. 12-70 debited to party on 3-6-64.
Theoretical weights:
24"x38"x225.G. 62. 18 Kilos per 1000.
281/2x40"x225.G. 77-75 Kilos per 1000.
Despatched: 3,850 Nos. 24" x 38" x 225 G. S/2020/76 D/- 1-7-64. .... .. ... ....
3,150 Nos. 24" x 38" x 225 G. S/2020/79 D/- 3-8-64.
2,000 Nos. 24" x 38" x 225 G. S/2020/80 D/- 4-8-64.
Despatched: 3,500 Nos. 281/2 x 40" x 225, G. S/2020/71 D/- 8-7-64.
3,500 Nos. 281/2 x 40" x 225. G. S/2020/78 D/- 10-7-64"
__________________________________________________________________________________
It is also necessary to note the June 26th agreement entered into between the parties which is exhibited as Ex. A-5,
"Mohan Polythene & Plastic Products Co." June, 26th 1964.
Messrs. B. Kuppuswamy, Chetty & Sons. Post Box No. 1904, Madras-1.
Dear Sirs,
Ref: Our sale to your of One Tonne Polythene Liners for delivery during August 1964, confirming our telephonic talk of today, we sent you a telegram addressed to Ramajanaka, Madras, reading as under
Referring telephone we confirm our sale to you one tonne polythene liners August delivery Rupees Twelve fifty per Kilo nett No Discount Other terms as before Bansidhar."
We hope your duly received this telegram.
In accordance with the above, we confirm having sold to you as under".
Description: Polythene liners, sizes and gauges (150 to 250 gagues only) to be advised to us on or before 31st July, 1964.
Quantity: One tonne (1000 Kilos) more or less, at our option.
Price: Rs. 12.50 (Rupees twelve and paise fifty only) per kilo F. O. R. Destination by rail or lorry. Price is nett, and no discount will be deducted. O. S. T. at 2% to be charged extra against C. Form.
Delivery: During August 1964 any time at our option by despatch of goods from Samalko by rail or lorry.
Payment: Against documents presented through bank, Proportionate amount of advance lying with us to the credit of your account to be deducted.
Other terms: As before.
As agreed by you on telephone, we will adjust against this fresh contract the amount of advance that is now refundable to you against deliveries stipulated for June.
Please acknowledge the receipt of this letter in token of your confirmation of the business mentioned herein.
Thanking you, we are:
Yours faithfully, Sd/- A. K. Mohan.
From the terms of these contracts, one thing appears to be absolutely cleat I. e. the payment has to be made by the plaintiff at Madras when the documents were presented through the bank. Accordingly, the plaintiff did pay the balance of purchase money as and when the documents were being presented to him through the bank at Madras. This is sufficient to give jurisdiction to the Madras Courts. In this context, we wish to repeat that the Madras Court has never said that no part of cause of action had arisen in Madras. We are, therefore, wholly unable to agree with the learned Subordinate Judge, Kakinada and our learned brother who held that no cause of action arose in Madras. If we may say so, this would be contrary to the terms of agreement. Under the terms of the agreement, the title in the goods would not pass in favour of the plaintiff unless the documents of title are delivered to the plaintiff. They would not be delivered by the bank unless payment is made by the plaintiff to the Madras Bank which is the Agent of the defendant. It is therefore clear that the performance of the contract has to be completed in this case by the delivery of the documents of title through the bank to the plaintiff at Madras. As held in Firm Shah Chandanmal Fatehraj and Others Vs. Hazarilal, "the place where it is to be delivered is the place where the performance of the contract is to be completed." To the same effect is a Full Bench Judgment of the Madras High Court, reported in Venkatachalam, v. Rajaballi, AIR 195 Mad 663 (FB). In the case, the plaintiff sued the defendant in the District Munsif''s Court, Tuticorin, for shortfall in goods ordered and for damages on account of inferior quality of supplied goods. A preliminary objection was taken by the defendant in that case that, the District Munsif''s court at Tuticorin, had no jurisdiction to try the suit because no part of case of action had arisen there. This objection was upheld by the District Munsif''s Court, Tuticorin but, was reversed by the Full Bench. The Full Bench held "payment for good purchased by the plaintiff or on his behalf by somebody else, was to be made at Tuticorin. If that is so, part of the case of action arose within the jurisdiction of Tuticorin District Munsif''s Court". Following these judgments, we hold that a part of cause of action in this case, arose in Madras, where the payment has to be made by the plaintiff.
The only other question which has to be considered is, whether the plaintiff acted in good faith in instituting his suit in the Madras Court in the fact of the exclusionary clause contained in the agreement dated 26th May; 1964 which reads as follows:-
"All disputes subject to Kakinada jurisdiction.
We notice from the plaint, which has been filed in the City Civil Court, Madras, that all the documents including the contracts dated 26th May, 1964 and 26th June, 1964, had been filled along with the paint, as required by the provisions of the Civil Procedure Code. Presumably, the advocate who had advised the plaintiff to file the suit in Madras Court, must have gone through these documents. In those circumstances, it is legitimate to infer that the advocate had decided that the exclusionary clause above referred to, does not bar the jurisdiction of the Madras Courts. The suit was instituted in the Madras Court on 3-9-1964. By that date, the unreported judgment of Balakrishna Aiyar, J. in Rama Chandra Sahu v. Sirdarmal (C. R. P. No. 1010 of 1953 (Mad)) holding that clause which reads "subject to Berhampur jurisdiction" does not operate to exclude the jurisdiction of the Madras Court, was referred to and followed by Ramamchandras Aiyer, J. in Patel Bros. Vs. Vadilal Kashidas Ltd., ; Justice Ramachandra Aiyar held, in that case that the words "subject to Bombay jurisdiction" do not exclude the jurisdiction of the Madras Courts. It is unfortunate that the judgment of Ramachandra Aiyar, J. referred to above, was not cited before our learned brother. Our learned brother, was therefore, led into the impression that the unreported judgment of Balalkrishna Aiyer. J. came to be noted by judicial decisions in Jhunjhunwala Bros. v. N. K. M. Subbaramier (1967) 80 MLW 93, in the year 1967, which is long after the institution of the suit,. It is for that reason our learned brother observed that "the decision of the Madras High Court in Jhunjunwala Bros. v. N. K. M. Subbaramier and Peruthikotta Village Welfare (Podundla) Sangam v. Palaniyadi Kandiar) were all rended must later to the institution of the suit and therefore, the plaintiff''s Counsel could not have been aware of the same." If the appellant had only brought to the notice of our learned brother the judgment of Ramachandra Aiyar J. reported in Patel Brothers v. Vadilal Kashidas (supra) we are sure, that our learned brother, would not have concluded that the advice given for instituting the suit in the Madras Court would not have been based on the unreported judgment of Balakrishna Aiyar, J. In view of the two judgments, one by Balakrishna Aiyar J. and the other by Ramachandra Iyer, J. we are clearly of the opinion that the plaintiff has acted in absolute good faith in instituting the suit in the Madras Court. The fact that the advice to institute that suit in Madras Courts, backed as it was by the two judgements of the Madras High Court on following the other, would clearly lead us to believe that the institution of the suit in Madras Court, is not wanting in bona fides. In these circumstances if the plaintiff has resisted the defendant''s plea for the trial on the jurisdiction question, the plaintiff cannot be said to be acting without good faith.
Mr. Pooniah, however, said that the meaning of the exclusionary clause is that the Kakinada Courts alone have jurisdiction. But, we must say that this is not the view of the exclusionary clause taken even by the subsequent judgment of the Madras High Court reported in Jhunjhunwala Bros. v. Subbaramier, Alagiriswami J. had only distinguished the judgment of Balakrichna Aiyar J., reported in C. R. P. No. 1010 of 1953 (Mad) ad the judgment of Ramachandra Aiyer J. reported in Patel Brothers v. Vadilal Kashidas on the ground that in those cause, the exclusionary terms do not contain words like ''only'' or ''alone'' whereas in the case be fore him, the contract expressly says "that the contract shall be subject to the jurisdiction of Cuttack Courts only." Mr. Poorniah referred to Hakam Sing Vs. Gammon (India) Ltd., ; Firm Bansi Dhar Baldeo Pershad and Another Vs. Firm Alopi Pershad and Sons Ltd., and also a decision by Hardy & Deshpande, JJ. in ILR (1970) 2 Delhi 60. Hakam Sing Vs. Gammon (India) Ltd., , is a case where the Supreme Court held that the words "courts of law in the City of Bombay alone shall have jurisdiction" are valid as they do not confer any jurisdiction on the Bombay courts which they otherwise, lack. This decision does not advance the case of Mr. Poorniah. The decision reported in Firm Bansi Dhar Baldeo Pershad and Another Vs. Firm Alopi Pershad and Sons Ltd., is a case where it was held that the exclusionary words "that if for any reason Court proceedings are taken then only the Courts at Delhi shall have jurisdiction", would exclude the jurisidiction of all other courts and that, therefore the plaintiff''s institution of the suit at Kheri, cannot be called to be bona fide. This case which is similar to the one decided in Jhunjhunwala Bros. v. N. K. M. Subaramamiah renders no assistance in resolving the points of dispute in our case where, the exclusionary words do not use the language such as ''only'' or ''alone''.
It is not necessary for us to express an opinion as to whether that view is correct or not. It is sufficient for the purpose of considerating plaintiff''s good faith that the very fact, that the two learned Judges of the Madras High Court had taken a view that the contractual term merely saying that the transaction is subject to jurisdiction of a Court, does not exclude the jurisdiction of the other Court, is a sufficient ground for an advocate to advise his client that the present exclusionary terms do not oust the jurisdiction of the Madras Court Mr. Poorniah''s argument to the contrary is grounded on the traditional theory that one of the two views alone is true. This theory is nearly always untrue and does not take note of the great advances made in the philosophy of language. Dealing with this traditional theory of interpretation Hans Kolsen wrotes:
"Traditional judiprudence is rarely inclined to admit that a legal norm has two or more meanings, or, if such should be the case, that there is no juristic reaction to prefer one of the various meanings to another. For it is considered to be the specific function of interpretation to find the establish the one ''true'' meaning of a legal norm. The view, however, that the verbal expression of a legal norm has only one, ''true'' meaning which can be discovered by correct interpretation is a fiction, adopted to maintain the illusion of legal security, to make the law-seeking public believe that there is only one possible answer to the question of law in a concrete case. Unfortunately, the contrary is true. That there is almost always a possible interpretation different from that adopted by the law applying organ in a concrete case, is made clear by the practice of courts, such as the permanent Court of International Justice and the International Court of Justice, which publish both majority and dissenting opinions. In examining the decisions of these Courts one must inevitably conclude that in most cases the arguments of the dissenting judges are logically at least, equal in value to those which motivate the majority decision of the Court."
Section 14 of the Limitation Act which proceeds on the assumption that despite the best intentions and efforts one may sometimes not know where to sue is a negation of the classical Anglo Saxon theory of the interpretation. The same thought Justice Holmes conveyed earlier when he wrote ''the Prophecies of what the courts will do in fact and nothing more pretentious, are what I mean by the law" In the circumstances of this case when a lawyer in exercise of his oracular functions prophesies the Madras Courts are likely to entertain the plaintiff''s suit, how can one say he or his client is acting without good faith. On the authority of Gulliver, apart from our experience, we know that in our courts functioning under the system of precedents, "whatever had been done before may legally be done again". We, therefore, cannot agree with Mr. Poorniah on this submission.
Mr. Poorniah also said that on the basis of the judgment of this Court reported in D. Puttamma Naidu v. P. Venkata Reddi (1966) 2 AWR 206, under O. 7, R. 6 of C. P. C, the plaintiff must mention all the necessary circumstances which entitled him to claim exclusion of the time spent in prosecuting the suit in a wrong Court. In that case, the plaint which was returned by the panchayat Court without any material alteration was presented before a Civil Court and that was held by Gopal Rao Exbote J. (as he then was) as amounting to want of bona fides on the part of the plaintiff. But, in our case, we find that after the plaint was returned by Madras Court and before it was filed into Kakinada Court, the plaintiff did made an endorsement in these terms.
"The suit was filed on 3-9-94 and returned for presentation on 29-2-1968 and as the suit was bona fide prosecuted in a court having no jurisdiction and the period of pendency has to be excluded and excluding the said period of pendency, the suit is within time."
We hold that this is a sufficient endorsement explaining the circumstances that necessitated the presentation of the plaint to Kakinada Court and entitling the plaintiff to the benefit of Section 14 of the Limitation Act.
Mr. Poorniah also said that no lawyer was examined to show that the institution of the suit in Madras was based on the advice of a competent legal advisor. We are afraid. we cannot agree with this submission in view of the fact that the plaintiff''s action is fully supported by the aforesaid two judgments of the Madras High Court. In view of the fact that the agreements had been filed along with the plaint and further in view of the fact that we find that there is sufficient legal justification for instituting the suit in Madras Court, we cannot hold that the plaintiff is wanting in good faith for the reason that there are certain legally inaccurate statements made in the plaint and by his omission to refer to clause 4 of the Contract in the plaint.
For the above reasons, we set aside the judgments of our learned brother and the trial court.
In view of the fact that the trial Judge had not gone into the quantum of damages, we remand the case to the learned Subordinate Judge, Kakinada. The learned Subordinate Judge, Kakinada will now assess the damages to which the plaintiff will be entitled. There shall be no order as to costs throughout, upto this stage. The court-fee paid in the appeal as well as the Letters Patent Appeal with be refunded to the appellant.
Appeal allowed.