Dilber Singh Rana Vs Civil Judge (S.D.) and others

Hon''ble Tarun Agarwala, J.@mdashHeard Mr. Pankaj Purohit, the learned counsel for the petitioner, Mr. R.C. Arya, the learned Standing Counsel for the State of Uttarakhand/respondent Nos. 1 & 2 and Mr. Parshant Khanna, Advocate holding brief of Mr. R.P. Nautiyal, the learned counsel for the respondent No. 3.

2. The petitioner is a contractor. In the year 1990, respondent No. 3 executed a work order to the petitioner for the construction of a Tower foundation and construction of retaining wall etc. at Joshimath, which is now located in the State of Uttarakhand. The petitioner accepted the terms and conditions of the work order and also executed the work and submitted the bill for payment. It transpires that respondent No. 3, Triveni Structurals Ltd., raised some objection and some amount was not paid to the petitioner. This resulted in a dispute and, accordingly, the petitioner filed Original Suit No. 22 of 2001 before the Civil Judge (S.D.), Chamoli for the recovery of the amount, as per the bills raised pursuant to the work order.

3. Respondent No. 3 filed its written statement and contended that the Civil Judge (S.D.), Chamoli had no jurisdiction to try the suit, in view of the clause 11 (E) of the work order, which stipulated that in case of any dispute, the same would be subject to Allahabad Jurisdiction. For facility, Clause 11 (E) of the work order is extracted hereunder:-

(E) In case of any dispute for any legal or financial matter, same shall be subject to Allahabad, Jurisdiction.

4. On the basis of the aforesaid objection of respondent No. 3, on the point of jurisdiction, the trial court decided issue No. 4 by an order dated 07.05.2004 and held that the District Court, Chamoli had no jurisdiction to try the suit and, accordingly, directed the plaint to be returned to the plaintiff to be presented before the appropriate court. The petitioner being aggrieved filed an appeal, which was rejected by the judgment and order dated 23rd December, 2004. The petitioner being aggrieved by the aforesaid orders has filed the present writ petition.

5. The contention of the petitioner is that clause 11 (E) of the work order is not binding upon the petitioner and that an inter se arrangement between the parties cannot oust the jurisdiction of the Court. The petitioner contended that the cause of action arose in District Chamoli, since the work was carried out at Joshimath, which is in the District of Chamoli and that all the witnesses, etc. are also placed in Chamoli. Consequently, it would be onerous on the part of the petitioner to travel all the way to Allahabad and file the suit. Such onerous condition contained in clause 11(E) of the work order is void being opposed to public policy as contemplated u/s 23 of the Contract Act. The learned counsel for the petitioner contended that since a part of cause of action arose in Chamoli, the suit was rightly filed at Chamoli.

6. On the other hand, the learned counsel for respondent No. 3 contended that in view of Section 20 of the Code of Civil Procedure, a suit could only be filed at Allahabad since the defendant was residing and carrying on his business at Allahabad. It was further stated that the petitioner had signed the work order with open eyes and expressly excluded the jurisdiction of Chamoli, while accepting the work order. The learned counsel contended that the impugned orders does not suffer from any error of law and that the writ petition was liable to be dismissed. In support of the contention raised by the learned counsel for the parties, necessary case laws have been cited which will be considered hereinafter.

7. In Hakam Sing Vs. Gammon (India) Ltd., , a question arose as to whether the Subordinate Judge at Varanasi had jurisdiction to pass an order u/s 20 of the Indian Arbitration Act 1940 and whether the Court of law in the city of Bombay alone had the jurisdiction to entertain the suit. The trial court concluded that the entire cause of action had arisen at Varanasi and that the parties could not by agreement confer jurisdiction on the Courts at Bombay. In revision, the Allahabad High Court held that the Courts in Bombay had the jurisdiction by virtue of the covenant in the agreement, executed between the parties, which were binding on them. The Supreme Court affirmed the order of the Allahabad High Court holding that the dispute arising out of the terms of the agreement could only be filed in the Courts in the city of Bombay not only in terms of the agreement executed between the parties, but also on account of the fact that defendant was also residing and carrying on his business at Bombay.

8. In M/s. Angile Insulations Vs. M/s. Davy Ashmore India Ltd. and another, the Supreme Court considered the terms of the contract between the parties, namely, "This work order is issued subject to the jurisdiction of the High Court situated in Banglore in the State of Karnataka. Any legal proceeding will, therefore, fall within the jurisdiction of the above court only." The Court held that the parties have a right to have the legal position determined by the ordinary Tribunal unless there is an arbitration clause in a context which is valid and binding under the law. The court held that an agreement to oust absolutely the jurisdiction of the Court would be unlawful and void being opposed to public policy u/s 23 of the Contract Act. But where two or more competent courts could entertain a suit consequent upon a part of the cause of action having arisen therewith, if the parties to the contract agreed to oust one court and vest jurisdiction in another court to try the dispute in which case such an agreement would be valid. If such a contract is unambiguous, clear and explicit and is not vague. In that light, it would not be hit by Sections 23 and 28 of the Contract Act. Similar view was propagated by the Hon''ble Supreme Court in A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies, Salem, .

9. An attempt was made by the learned counsel for the petitioner to impress the Court that the endorsement in the work order "subject to Allahabad jurisdiction" does not exclude the jurisdiction of other courts, namely, the Court of Chamoli, unless it was expressly ousted and that the maxim ''expressio unius est exclusio alterius'' would apply. The learned counsel submitted that the ouster clause should contain the words, viz, ''alone'', ''only'', ''exclusive'' and the like, in order to non suit the petitioner, but since the work order did not contain such words, the court at Chamoli would have the jurisdiction. In support of his submission, the learned counsel placed reliance upon the decision of the Hon''ble Supreme Court in R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Valllabh Glass Works Ltd., , in which it was held:-

9. We may also consider the effect of the endorsement ''Subject to Anand jurisdiction'' made on the deposit receipt issued by the defendant. In the facts and circumstances of this case it cannot be disputed that the cause of action had arisen at Bombay as the amount of Rs. 10,00,000/- itself was paid through a cheque of the Bank of Bombay and the same was deposited in the bank account of the defendant in the Bank of Baroda at Nariman Point Bombay. The five post dated cheques were also issued by the defendant being payable to the plaintiff at Bombay. The endorsement ''Subject to Anand jurisdiction'' has been made unilaterally by the defendant while issuing the deposit receipt. The endorsement ''Subject to Anand jurisdiction'' does not contain the ouster clause using the words like ''alone'', ''only'', exclusive'' and the like. Thus the maxim ''expressio unius est exclusio alterius'' cannot be applied under the facts and circumstances of the case and it cannot be held that merely because the deposit receipt contained the endorsement ''Subject to Anand jurisdiction'' it excluded the jurisdiction of all other courts who were otherwise competent to entertain the suit.

10. In furtherance to his submission, the learned counsel for the petitioner place reliance upon a decision of the Gujarat High Court in Snehalkumar Sarabhai Vs. Economic Transport Organisation and Others, wherein the court held that even where parties lawfully enter into an agreement to restrict a dispute to a particular Court having jurisdiction, such stipulation contained in the agreement could not take away the jurisdiction of the Court which admittedly had the jurisdiction. The Court held that the ouster clause can operate as an estoppel against the parties to the contract, but it cannot tie the hands of the Court and denude its power to do justice.

11. No doubt the principle enunciated in the aforesaid judgment cited by the learned counsel for the petitioner is salutary but at the same time this Court is of the opinion that ordinarily the Court would respect the arrangement/agreement entered between the parties and the court is not obliged to entertain the suit and would be guided by the agreement entered between the parties for their convenience. The ouster clause is not a guiding factor for the court to entertain or not to entertain a petition. The guiding factor is stipulated under Sections 16 to 20 of the CPC and where by an express agreement, if the dispute is confined only to one particular court and by necessary implications oust the other court to try the dispute, such arrangement is not opposed to public policy and should be adhered too.

12. In the light of the aforesaid, the Court finds that the work order was executed with open eyes by the petitioner. He did not raise the dispute with regard to the jurisdiction. It was not a case where the petitioner was made to sign on the dotted lines or where he had no choice in the matter. This was a pure contract. An offer was made by respondent No. 3, which was duly accepted, signed and acknowledged by the petitioner. The work order clearly indicates the jurisdiction of the Allahabad court to decide the dispute inter se between the parties. The Court at Chamoli had rightly directed the plaint to be returned to the petitioner to be presented before the appropriate court.

13. In the light of the aforesaid facts, this Court does not find any error in the impugned orders. The writ petition fails and is dismissed. In the circumstances of the case, parties shall bear their own costs.