IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.4 of 2005. Date of decision: 10-9-2008 Satluj Jal Vidyut Nigam Ltd. ....Appellant -Versus- M/s.Nathpa Jhakri Joint Venture and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting? No For the Appellant: Mr.Ramakant Sharma, Advocate. For the respondents: Ms.Yogita Dutta, counsel for respondents 1 to 3. Deepak Gupta, J.(oral) This Appeal is directed against the judgment dated 3rd May, 2005 passed by a learned Single Judge of this Court whereby the suit filed by the plaintiff has been ordered to be returned for the presentation to the Court having jurisdiction to entertain the same on the ground that this Court cannot entertain the suit. Succinctly stated the facts of the case are that the plaintiff previously known as Nathpa Jhakri Power Corporation which has now been re-named as Satluj Jal Vidyut Nigam Limited entered into a contract with respondents 1 to 3 for execution of some civil works of Nathpa Jhakri Hydro Electric Power Project in Districts Shimla and Kinnaur in Himachal Pradesh. The learned Single Judge held that this Court had no jurisdiction to entertain or decide the suit, relying upon a judgment given by another learned Single Judge 2 of this Court in Arbitration Case No.58 of 2003 titled as Satluj Jal Vidyut Nigam Ltd. Vs. M/s.Continental Foundation Joint Venture dated 13th April, 2005. It would be pertinent to mention that Appeal against the aforesaid judgment dated 13th April, 2005 in Arbitration Case No.58 of 2003 was filed by the present plaintiff which was Registered as LPA No.3 of 2005. The Clauses of the agreement in both the cases are virtually identical. One of the questions which arose for adjudication in LPA No.3 of 2005 was as follows: “Whether the parties in terms of the contract entered between them had agreed to oust the jurisdiction of the courts in Shimla and had further agreed that the disputes between them shall be tried only in the Courts at Delhi?” In LPA No.3 of 2005 this Court decided the aforesaid question against the plaintiff holding that the parties by agreement had agreed to oust the jurisdiction of the Courts within the State of Himachal Pradesh. The Clause which calls for interpretation reads as follows: “(XII)VENUE, APPLICABLE LAW, AND PERSONAL JURISDICTION In the event that any party deems it necessary to initiate legal action or proceedings to enforce any rights or obligations under this Agreement, the parties hereto agree that any such action shall be initiated as per law for the time being in force in India and within the jurisdiction of the Courts at New Delhi. The Board Members, hereby, consent to be bound by the personal jurisdiction of the courts at New Delhi.” In the present case there can be no manner of doubt that both the courts at Delhi and in Himachal, especially in Shimla & Kinnaur Districts had inherent jurisdiction to entertain and decide any dispute arising out of the contract. Admittedly, the contract was entered into between the parties at New Delhi and therefore the Courts at New Delhi had jurisdiction since part of the cause of action arose there. It is also not disputed that as per the contract, the works which were the subject matter of the contract, were to be carried out in Shimla & Kinnaur Districts in the State of Himachal Pradesh. Therefore, the Courts in Shimla & 3 Kinnaur Districts also had jurisdiction to entertain and decide the matter since part of the cause of action arose within the territorial jurisdiction of the Courts at Shimla & Kinnaur Districts. The High Court of Himachal Pradesh exercises original civil jurisdiction in respect of the claims exceeding Rs.10 lakhs and since the value of the claims in the present case was more than Rs.10 lakhs, this High Court had inherent jurisdiction to entertain and decide the matter. The law is well settled that when two or more competent Courts have jurisdiction to entertain the matter, the parties by mutual consent can agree to fix jurisdiction in only one of them. Such a contract is legal and binding. Reference in this behalf may be made to a judgment of the Apex Court in Hakam Singh vs. M/s.Gammon (India) Ltd., 1971 (1) SCC 286, wherein the Apex Court held that though it was not open to the parties to confer by their agreement jurisdiction on a Court, which it did not possess, but where two courts or more have jurisdiction to try a suit or proceedings, the parties by an agreement could agree that all disputes between them would be tried in one of such Courts only. Such an agreement was held not to be against the public policy or in contravention of Section 28 of the Contract Act. The question that arises is whether the jurisdiction of the Courts in Himachal was ousted by the agreement in question. Clause 12 of the agreement quoted hereinabove does not use the words ‘alone’, ‘only’, ‘exclusive’ or such like words. Sh.Ramakant Sharma, learned counsel for the appellant contends that in view of the fact that such words have not been used it appears that intention of the parties was not that only the courts at Delhi would have jurisdiction. It is contended that the ouster of the jurisdiction of the Courts in Himachal cannot be inferred on a reading of Clause 12 quoted hereinabove. On the other hand Ms.Yogita Dutta, learned counsel for the respondents 1 to 3 submits that this Court cannot loose sight of the fact that the contract was entered 4 into between the parties at Delhi. The parties agreed that they would be governed by the law for the time being in force in India. She submits that by specifically stating that the Courts at Delhi would have jurisdiction, the jurisdiction of the Courts in Himachal was ousted by applying the maxim ‘expressio unius est exclusio alterius’ expression of one is the exclusion of the another. She also submits that it is not only clause 12 which indicates the intention of the parties. Clause 5-B of the contract document reads as follows: “Clause-5 :Language and Law: (a) xxxxxxxxxx (b) The law to which the contract is to be subject and according to which the contract is to be construed shall be the law for the time being in force in India and within the jurisdiction of New Delhi Courts.” She has also made reference to modified Clause 67 of the terms of the contract. Sub- clause-8 of modified Clause 67 provides that all arbitration proceedings shall be held at New Delhi, India. According to her, on a combined reading of all the clauses it is clear that the intention of the parties was to oust the jurisdiction of all other competent courts except the courts at Delhi. A similar question arose for consideration in A.B.C. Laminart Pvt.Ltd. and another vs. A.P. Agencies, Salem, (1989) 2 SCC 163. In this case the Supreme Court was dealing with a matter in which the clause which was to be interpreted read as follows: “Any dispute arising out of this sale shall be subject to Kaira jurisdiction.” The Apex Court after discussing a number of judgments held as follows: “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 5 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 from its operation may in such cases be inferred. It has therefore to be properly construed.” However, having held so, the Apex Court went on to observe that the clause in question did not contain any exclusionary words like ‘exclusive’, ‘alone’, ‘only’ and therefore the other general terms and conditions of the contract had to be taken into consideration. On the facts of the case the Court held that the jurisdiction of the Court at Salem which court otherwise had jurisdiction under law had not been expressly excluded. Similar view was taken by the Apex Court in Angile Insulations vs. Davyashmore India Ltd. and another, (1995) 4 SCC 153. In Hanil Era Textiles Ltd. Vs. Puromatic Filters (P) Ltd., (2004) 4 SCC 671, the Apex Court dealt with a matter in which the clause in question read as follows: “17.Jurisdiction.- Any legal proceeding arising out of the order shall be subject to the jurisdiction of the courts in Mumbai.” The Apex Court following the law laid down in A.B.C. Laminart’s case (Supra) held that though the exclusionary words had not been used since major part of the cause of action had arisen in Bombay, only the Courts at Bombay had jurisdiction to decide the cases to the exclusion of all other Courts. Sh.Ramakant Sharma, learned counsel for the appellant has relied upon the judgment of the Madras High Court in Nayveli Lignite Corporation vs. M/s.Vinay Engineering, AIR 1992 Madras 332. In that case both the Courts at Madras and Neyveli had jurisdiction. Clause 18.2 of the contract provides that Civil Court having ordinary civil jurisdiction over Neyveli shall have the jurisdiction all concerned in this contract. The Madras High Court held as follows: 6 “17. I have given my anxious consideration to the arguments advanced by respective counsel. I have already extracted clause 18.2 of the agreement between the parties. That clause merely provides that the Civil Court having ordinary original civil jurisdiction over Neyveli shall have the jurisdiction over all the matters concerning the contract. It is pertinent to notice that this clause does not oust the jurisdiction of other Courts. Words like ‘alone’, ‘only’, ‘exclusive’ are not found in clause 18.2 of the contract between parties. Hence it cannot be contended that clause 18.2 excludes the jurisdiction of other Courts. Admittedly, the contract was entered into within the jurisdiction of this Court and therefore part of the cause of action had arisen in Madras. Hence, there is no force in the contention of NLC that the Court at Neyveli alone has jurisdiction to the exclusion of all others.” Relying upon the aforesaid averments it is urged that even in the present case there is no ouster of the jurisdiction of the Courts at Delhi. We are unable to accept this argument. In the present case it is not only one clause but a number of other factors which indicate that the parties had mutually agreed to restrict the jurisdiction to the Delhi Courts only. On a careful analysis of the aforesaid judgments it is apparent that when two or more courts have inherent jurisdiction to hear a matter and the parties by agreement oust the jurisdiction of other courts and restrict the jurisdiction to one Court only this can be done even without the use of exclusionary words. However, in such cases where the exclusionary words are not used the Apex Court has laid down that each case must be decided on its own facts and the intention of the parties should be culled out from the terms of the agreement. In the present case, as noted above, at three places in the contract, namely, Clause XII, modified clause 67 as well as Clause 5 the parties have clearly indicated that the arbitration proceedings shall be held at New Delhi and have also clearly agreed that the Courts at Delhi would have jurisdiction to decide their disputes. The parties were aware that the other Courts which could have jurisdiction were the Courts in Shimla & Kinnaur Districts. When they specifically limited the 7 jurisdiction to the Delhi Courts a presumption can reasonably be raised that their intention was to oust the jurisdiction of the Courts at Shimla & Kinnaur Districts. The parties by such an agreement have not conferred jurisdiction upon a Court not having jurisdiction but have elected that the disputes between them should be decided by the Courts at Delhi. Since the parties had elected that the disputes should be decided by the Courts at Delhi they had ousted the jurisdiction of the Courts within the State of Himachal Pradesh. Hence, this Court had no jurisdiction to entertain the case and the learned Single Judge rightly ordered return of the plaint. The Appeal is dismissed in the aforesaid terms. There shall be no order as to costs. (Deepak Gupta), Judge September 10, 2008 ( V.K. Ahuja ) PV Judge