*1* sj.457.09.ss.1585.09.903.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.457 OF 2009 IN SUMMARY SUIT NO.1585 OF 2009 WITH CHAMBER SUMMONS NO.179 OF 2011 Nova Flexipack (P) Ltd.. ..Plaintiffs -versus- Ms.P.Laxmi. ..Defendant ............ Mr.Kevic Setalvad, Senior Advocate a/w Ms.Sheetal Shah i/by Mehta & Girdharlal, for the Plaintiffs. Ms.Sneha Bohra i/by Bagla Dandekar & Company, for the Defendant. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 30th November, 2011. P.C.: 1 This suit is filed as a summary suit on the basis of the written contract evidenced, according to the Plaintiff, by the purchase order, delivery challan and invoice under which the goods came to be supplied, delivered and sold. The goods so also invoices have been accepted without any protest. It is in these circumstances that the demand was raised for payment of a sum of Rs.1,45,973/- for supply and delivery of 1369 kilos of films. The invoice dated 04.08.2006 bearing No.00399 together with the copies of delivery challan are annexed to the plaint and marked Annexures A and B. It is stated that the suit is filed in this Court because the invoice contains stipulation that the parties have agreed that the disputes and differences between them shall be adjudicated only by a *2* sj.457.09.ss.1585.09.903.sxw Court in Mumbai. My attention is invited to the Annexure A and particularly endorsement below delivery challan “subject to Mumbai jurisdiction”. My attention is also invited to the invoice bearing No.00399 dated 04.08.2006 containing identical stipulation. 2 It is stated that there have been no compliances with the demands made by the Plaintiffs even through their Advocate and that is how the suit has been instituted in this court. 3 On writ of summons being served and appearance of the Defendant being entered, this Summons for Judgment has been taken out and duly served on the Defendant. It is contended that the sum as claimed is due and payable and that the Plaintiffs cannot be denied their legitimate and legal dues. The Vakalatnama has been filed only with a view to cause delay in passing of the decree. The defence raised by the Defendant is moon shine, absolutely untenable and false and the allegations in that behalf are made to evade and/or delay passing of the decree in favour of the Plaintiff. 4 In the affidavit in reply to the Summons for Judgment and also by moving the distinct application, namely, Chamber Summons No. 179/2011, what is stated by the Defendant is that leave under clause XII of the Letters Patent has been obtained on the basis of false and misleading statements. No part of the cause of action has arisen within the jurisdiction of this Court, therefore, this Court has no jurisdiction to entertain and try the suit. 5 My attention is invited by the learned Senior Counsel appearing for the Plaintiff, during the course of argument, to the invoice and the stipulation therein and it is urged that this Court has jurisdiction to entertain and try the suit. It is argued that the issue of territorial jurisdiction and technical pleas are now raised to delay passing of the *3* sj.457.09.ss.1585.09.903.sxw decree. However, as far as the suit transaction is concerned, it is based on the written contract and as far as the contract is concerned, the cause of action to sue on breach of such contract arises either at the place where the contract is made or at the place where it should have been performed and the breach is committed. Therefore, the suit can be filed at the place where the contract was made. The making of the contract is a part of the cause of action and a suit on a contract can be filed at the place where it is made. The determination of the place where the contract is made is part of the law of contract. But, making of an offer on a particular place does not form the 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 therefore, a suit can be filed in a court within whose jurisdiction the acceptance was communicated. 6 My attention was also invited to several aspects and it is stated that the part of cause of action arises where the money is impliedly payable. The money was payable at Mumbai and therefore, the cause of action arises within the jurisdiction of this Court and the suit can be instituted in this Court. In this behalf, reliance is placed on the decision of the Honourable Supreme Court in the case of A.B.C. Laminart Pvt.Ltd. and another v/s A.P.Agencies, Salem reported in AIR 1989 SC 1239 and the decision of the learned Single Judge of this Court reported in 2005(3) Bom. C.R. 22 (Infrastructure Leasing & Financial Services Ltd. v/s DSQ Holding Ltd. and others). 7 On the other hand, what has been argued on behalf of the Defendant is that in the plaint, so also, in the petition seeking leave under clause XII of the Letters Patent, what has been stated is that the Plaintiff has its registered office at Mumbai within the original side jurisdiction of this Court. The Defendant placed the orders at Mumbai and payments *4* sj.457.09.ss.1585.09.903.sxw were to be made at Mumbai. The suit invoice has express stipulation “subject to Mumbai jurisdiction”. The Defendant carries on business at Chennai, outside territorial jurisdiction of this Court. Since material part of the cause of action has arisen at Mumbai, that leave under clause XII of the Letters Patent was sought and it was contended that this Court has jurisdiction to entertain and try the suit. However, according to the learned counsel appearing for the Defendant, if Annexures A and B are perused, it is apparent that what is reflected therefrom is that the Plaintiff is carrying on business from Plot No.H-11/12, OIDC, Udyognagar, Ringanwada, Daman. The goods have been dispatched from Daman. The Defendant carries on business at Chennai. There is nothing to indicate from these documents that any part of the cause of action has arisen within territorial jurisdiction of this Court. In any event the stipulation “subject to Mumbai jurisdiction”, does not answer the requirement in law inasmuch as the Honourable Supreme Court has observed that the agreement between the parties to confer jurisdiction on a Court can be said to be valid, legal and enforceable if they clearly intend the Courts at a particular place should have jurisdiction. Apart from the fact that there is stipulation in the invoice, which is not conclusive and the Court can find out as to whether, any part of the cause of action has accrued within the territorial jurisdiction of that Court on which the parties confer the jurisdiction by consent or agreement, in the instant case, beyond invoice stating that the registered office of the Plaintiff is at Mumbai, there is nothing which would indicate that this Court has territorial jurisdiction. 8 With the assistance of the learned counsel appearing for the parties, I have perused the plaint and annexures and the affidavits placed on record. It has been specifically urged that the issue of jurisdiction would squarely arise for determination of this Court. This Court’s *5* sj.457.09.ss.1585.09.903.sxw territorial jurisdiction is a matter which cannot be said to have been raised as an afterthought or as vexatious or false plea or defence with a view to delaying passing of a decree. It is submitted that the Plaintiff is aware of the fact that the orders with regard to the suit transaction were placed at Chennai, material was supplied by the Plaintiff from Daman and the invoices were issued from Daman and the payment was to be made at Chennai. None of the correspondences were made from Mumbai office save and except the suit notice. Apart from the fact that the material supplied was defective and reference is made to certain invoices in this behalf, what is argued on behalf of the Plaintiff is that there is no merit in this plea because in the invoices, the sum being outstanding and payable is indicated and they are accepted. The supply of defective goods is, therefore, no answer, according to the Plaintiff. 9 As far as the plea of jurisdiction is concerned, what has been stated by the Plaintiff is that the letters addressed by the Plaintiff to the Defendant were from Mumbai address only. The invoice raised clearly states that it is subject to Mumbai jurisdiction. The Defendant has deposited the amounts which have been paid to the Plaintiff in the Bank account at Mumbai. In fact the Defendant has paid the amount at Mumbai for earlier transaction and the Demand Draft has been payable at Mumbai. The Bank statement is sought to be relied upon in this behalf. 10 After perusal of all this material, I am satisfied that in this case, on the plea of territorial jurisdiction of this Court, triable issues arise which cannot be dealt with and decided on the basis of only affidavits. On own showing of the Plaintiffs, the annexures to the plaint would show that the invoice No.00399 bears their address at the top, of the factory at Daman. The delivery challan also bears that address. The goods are stated to have been delivered from the factory at Daman to the Defendant at *6* sj.457.09.ss.1585.09.903.sxw Chennai. In the plaint, there is no statement that the orders were placed at Mumbai and that payment under the transaction in question was to be made at Mumbai. In answer to the plea of jurisdiction raised and on application for revocation of the leave under clause XII of the Letters Patent, what is stated is that the stipulation in the invoice is conclusive. The stipulation in the invoice “subject to Mumbai jurisdiction” whether conclusive or not, must satisfy the tests laid down by the Honourable Supreme Court in the case of A.B.C.Laminart Pvt. Ltd. (supra). This itself is a triable issue. Therein relying upon the wording of section 20 of the Code of Civil Procedure, 1908, what the Honourable Supreme Court has held is that:- “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 *7* sj.457.09.ss.1585.09.903.sxw 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 where the suit is filed and that contract is found to be invalid, such part of cause of the 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. Would this be the position in the instant case? 21. From the foregoing decisions it can be reasonably deduced 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 *8* sj.457.09.ss.1585.09.903.sxw from its operation may in such cases be inferred. It has therefore to be properly construed.” 11 In these circumstances that I am of the view that the Defendant deserves unconditional leave to defend the suit. The Summons for Judgment is, therefore, dismissed. The suit is transferred to the list of commercial causes. The Written Statement be filed within twelve weeks from today. Discovery and inspection be also completed within that period. In view that I have taken above, no orders are necessary on the Chamber Summons and it is, accordingly, disposed of with no order as to costs. (S.C. Dharmadhikari, J)