1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTON APPEAL FROM ORDER NO.465 OF 2010 M/s.Solapur Agencies .. Appellant V/s Hindustan Lever Ltd. .. Respondent Mr.A.A.Valsangkar with Mr.Pankaj J.Das for the Appellant. CORAM: R.G.KETKAR, J. DATE: 20th September, 2010. P.C. 1. Heard Mr.Valsangkar, learned counsel for the appellant. This appeal is directed against the judgment and order dated 22nd January, 2010 passed by learned Joint Civil Judge, Senior Division, Solapur in Special Civil Suit No.211 of 2001. By that judgment, learned trial Judge held that the Court at Solapur had no territorial jurisdiction to entertain, try and decide the suit and that the suit requires to be tried, entertained and decided by the competent Court in the city of Bombay. The learned Judge accordingly returned the plaint to the plaintiff for presenting the same before the competent Court in the city of Bombay. 2. Mr.Valsangkar submitted that the learned trial Judge has 2 committed grave error in holding that the civil Court at Solapur had no jurisdiction to entertain the suit. He invited my attention to the evidence on record and in particular evidence of Plaintiff’s witness Sunil Shriram Kale at Exh.32 and submitted that Sunil Shriram Kale was formerly working as a salesman with the Defendant since 1976 till 1982 and the agreement in question was executed on 1st October, 1979 when he was in the employment of the Defendant. Perusal of his evidence clearly establishes that the contract was signed by the plaintiff at Solapur. He further submitted that no part of cause of action arose within the city of Bombay and consequently reliance placed by learned trial Judge on clause 23 of the agreement dated 1st October, 1979 is wholly mis-conceived. 3. I have considered the submissions made by the learned counsel. Clauses 23 and 24 of the agreement dated 1st October,1979 read as follows:- “23. This Agreement has been signed and executed in BOMBAY. This Redistribution Stockist agrees that the place of payment for all goods sold or supplied to him by the Company under this Agreement in the City of BOMBAY and that any suit to enforce the rights of either 3 party under or in respect of this Agreement shall be instituted in and tried by a competent court only in the City of Bombay and in no other court and the Redistribution Stockist further expressly agrees to submit to the jurisdiction of such Court.” “24. The Agreement supersedes all Agreements between the parties hereto or between “the Redistribution Stockist” and any other company to which “the Company” is the successor.” 4. Plaintiff has examined Ramanlal Hiralal Zavar. In the cross- examination he admitted that the said agreement was signed by his brother Manik Zavar. The said agreement was neither read by him nor by his brother Manik. Since the said agreement was in English, he is not aware of the contents of the said agreement. He denied that the agreement was executed at Bombay. He further deposed that he is not aware of any clause in the agreement stipulating that for enforcing rights under or in respect of the agreement, the suit has to be instituted in a competent court in the city of Bombay. He admitted that as per the orders placed by him, defendant used to send the goods from Mumbai. In so far as evidence of Manik Zavar is concerned, in the cross-examination he 4 deposed that he had not read the copy of the plaint. Though he tried to go through the agreement, he could not go through it as it was in English. In so far as evidence of Defendant is concerned, Mr.Behram Jamshed Bilimoria deposed that the agreement dated 1st October, 1979 was executed at Bombay. 5. Considering the material on record, it cannot be said that no part of cause of action arose in the city of Bombay. In so far as reliance placed by learned counsel on the oral evidence of Mr.Sunil Kale is concerned, even in the examination in chief he admitted that after obtaining the signature of plaintiff’s representative on the agreement at Solapur, the same was forwarded to Bombay for the purpose of signing the same by the authorised representative of the Defendant. He did not state that the contract was executed at Solapur. In view of this and also in the light of clause 23 of the agreement, it is evident that the contract was executed in Bombay. In the cross- examination, he admitted that he has gone through the papers and proceedings of the present suit in the year 2006 and thereafter he did not go through the documents. His evidence 5 was recorded on 8th September, 2009. 6. In the case of A.B.C.Laminart Pvt.Ltd.and Another V/s.A.P.Agencies, Salem, AIR 1989 SC 1239, the Apex Court in paragraph Nos.15 & 16 of the judgment observed thus:- “15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the court 6 where the suit is filed and that contract is found to be invalid, such part of cause of action disappears. The above are some of the connecting factors” “16. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of these jurisdiction and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy.” 7. Considering the material on record, I do not find that the learned trial Judge committed any error in holding that the Court at Solapur had no jurisdiction to entertain and try the suit. In my opinion, learned trial Judge was justified in returning the plaint to the plaintiff for presenting it before the appropriate Court at Bombay. In the result, there is no substance in this appeal and the same is dismissed. 7 8. In view of dismissal of the appeal, no orders are necessary in the Civil Application No.608/2010 and the same is also disposed of. (R.G.KETKAR, J.)