1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T 1. S.B. CIVIL REVISION PETITION NO.79/2009. Jindal Hometex (India) Pvt. Ltd. Vs. M/s R.K. Fabrics & others. 2. S.B. CIVIL REVISION PETITION NO.80/2009. Jindal Hometex (India) Pvt. Ltd. Vs. M/s A.V.R. Fabrics & others. UNDER SECTION 115 CPC. DATE OF JUDGMENT: 3rd August 2009. HON'BLE MR.JUSTICE S.P.PATHAK Mr. N.K. Maloo for the petitioner. Mr. Vishwajeet Mantri for the respondents. BY THE COURT: These two revision petitions have been filed under section 115 CPC against the order dated 2.5.2009 passed by the Additional District Judge (Fast Track) No.3, Ajmer camp Kishangarh in Civil Suit Nos.54/2009 and 57/2009 whereby the applications moved under Order 7 Rule 10 CPC have been dismissed. The facts for the disposal of the present revision petitions are that plaintiff-respondent M/s R.K. Fabrics, Subhash Colony, Madanganj, Kishangarh District Ajmer through its proprietor filed civil suits Nos.54/2009 and 57/2009 in the trial court for recovery of the amount against the appellant and pro- 2 forma respondent stating, inter-alia, therein that the plaintiff supplied power-loom cloth to the appellant under various bills. The power-loom cloth was delivered at Ahmedabad. On account of non-payment of money and for other reasons, it became necessary to file the suits. The cause of action arose as the cloth was purchased and money due was not paid at Kishangarh. It was also stated that as per the terms and conditions of the bills, all the matters were subject to jurisdiction of Kishangarh. A prayer was made to decree the suit. The defendant appellant filed an application under Order 7 Rule 10 and 11 CPC in both the suits with the prayer to reject the suit on account of total lack of territorial jurisdiction and also for the reason that the suits were filed without paying adequate court fee. It was stated in the application that the delivery of goods was made at Ahmedabad and payment in relation to some of the bills was also made at Ahmedabad, therefore, the trial court was not having territorial jurisdiction. The respondent non-petitioner filed reply to the application and it was, inter-alia, stated that the goods were delivered at Ahmedabad under the orders of the appellant and the same were received also. The learned trial court after hearing both sides, finding that it is a disputed question of fact as to whether the appellant came at Kishangarh and placed the order himself or order was placed through agent at Ahmedabad, therefore, this matter requires to be decided after the evidence is led by both the sides but in view of the order-form dated 3 7.2.2007 wherein it is stated that all disputes are subject to jurisdiction of Kishangarh, therefore, the appellant cannot deny complete exclusion of jurisdiction of Kishangarh court and rejected the applications. Hence, the present revision petitions have been filed. I have heard learned counsel for the appellant and the learned counsel for the respondent and carefully gone through the impugned order as well as the material available on the file. It has been the contention of the learned counsel that in spite of the fact that the plaintiff did not state in the plaint the place where the order was placed and since delivery of the goods were made at Ahmedabad, therefore, the plaint was liable to be rejected/returned to the plaintiff for presentation in the proper court. It has further been contended that merely on the basis of condition printed either on the bills or on the order-form that dispute will be subject to jurisdiction of Kishangarh court will not exclude the jurisdiction vested in the court situated at Ahmedabad. It is also contended that the trial court has committed illegality in placing complete reliance on bills/ order- form as if they belong to the respondent/plaintiff. It is also contended that the trial court is not required to proceed in the matter unless the question regarding territorial jurisdiction is determined first as a preliminary issue for the reason that if the issue is decided in favour of the appellant then there is no need 4 to try other issues. On the other hand, it has been the contention that the present matter is governed under the provisions of the Contract Act in as much as that by placing order with the respondent-firm and acceptance thereof completes the contract and the parties are bound by the terms and conditions of the contract. It is also contended that one of the condition of contract is that dispute shall be subject to Kishangarh jurisdiction, therefore, the trial court committed no illegality or exceeded its jurisdiction while rejecting the application. It is also contended that in view of the provisions of Section 20 (c) CPC, the cause of action is bundle of facts and if partial cause of action is accrued either at Ahmedabad or at Kishangarh, then it cannot be said that the courts at Kishangarh will not have territorial jurisdiction or there is complete lack of territorial jurisdiction available to the Kishangarh courts. It is further contended that the appellant subsequent to filing of the suits by the respondent at Kishangarh filed a suit at Ahmedabad in relation to same subject matter. That suit has been filed later in time and notice in relation to the suit filed at Ahmedabad has been received and an application has been filed under section 10 CPC to stay the subsequent suit in relation to same subject matter. I have considered the submissions made before me. Admitted position of facts reveals that both the parties are dealing in business. The respondent HUF firm 5 supplied goods, power-loom cloth, to the appellant and a dispute has arisen in relation to the quality of goods and payment thereof. The finding of the trial court is that the cause of action has also accrued on account of part performance of the agreement at Kishangarh and further in view of the condition printed on the order-form and the same has been signed by the appellant as well as plaintiff-respondent. The dispute is in regard to territorial jurisdiction. The appellant-defendant's stand is that the order was placed with the plaintiff-firm at Ahmedabad and order-form was also signed at Ahmedabad and goods were also delivered at Ahmedabad and certain payments were made at Ahmedabad, therefore, where no part of contract was performed at Kishangarh, the courts at Kishangarh will not have any jurisdiction in the matter. To examine the above aspect, following points require consideration; (i) as to whether there is contract between the parties and if that be so then they are bound by the agreement; (ii) whether there is lack of territorial jurisdiction to the courts at Kishangarh; and (iii) whether the cause of action has arisen at both the places, namely Kishangarh (Rajasthan) and Ahmedabad (Gujarat) to the plaintiff-respondent and plaintiff's suit is maintainable at Kishangarh or Ahmedabad. The points nos. (i) to (iii) framed for determination are inter-related to each other, therefore, are being decided together. 6 The condition printed on the order-form is as under: “All subject to Kishangarh jurisdiction only”. This order-form has been signed by both the parties. The goods having also been supplied. Thus, there is no hesitation in reaching to the conclusion that the present matter is governed by the provisions of the Contract Act. It is not in dispute that the order was placed with the responent (plaintiff) firm and the goods were delivered at Ahmedabad, some payment was also made either at Kishangarh or at Ahmedabad. The condition printed on the order-form is a general condition of sale and after placing order with the firm, the same was accepted, therefore, for the purpose of finding out jurisdiction of the court cause of action which gave rise to the suit is relevant. The cause of action includes all facts, which if traversed, it would be necessary for the plaintiff to prove in order to support as right to judgment of the court. The cause of action must include some act done by the defendant and in absence thereof no cause of action can possibly accrue. The cause of action is not limited to actual infringement of the right sued on but includes all the material facts on which it is based. It is not always necessary that to prove such facts evidence is necessary. What is required for the plaintiff is to prove to enable him to obtain a decree. Under section 20 (C) CPC, limitations have been prescribed in relation to a suit to be instituted in a court within local limits of whose jurisdiction a cause of action wholly or in part arises. 7 In the light of the above provisions of the CPC and in view of the condition of the contract, it appears that a contract made between the parties is also a part of cause of action, therefore, the suit based on contract can also be filed at the place where it was made. The Hon'ble Apex Court in the case of A.B.C. Laminart Pvt. Ltd. and another Vs. A.P. Agencies, Salem- (1989)2 SCC 163, has observed in relation to acceptance of the offer that 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. It has further been observed that in the suit for agency the cause of action arises at the place where the contract of agency was made by the agent. Part of cause of action arises where money is expressely or impliedly payable under the contract. In the case of S. Manuel Raj & Co. Vs. J. Manilal & Co.- AIR 1963 Guj. 148, it was held where on the printed order- form a condition was mentioned subject to Madras jurisdiction. The order form was signed by one of the parties and was sent to other party. It was held that the party must be assumed to have agreed that Madras was the place for settlement of the dispute 8 and it ws not open to that person who signed the order form of the opposite party containing the printed words to show that printed words were not part of the contract and that those words in the contract was to exclude the jurisdiction of other courts and to keep sole jurisdiction of one court and it was in consonance with the commercial practice in India. In the case of Sri Rajendra Mills Vs. H.V.M. Hazi Hassan Dada- AIR 1970 Cal. 342, where there was a contract agreed between the parties that all suits arising on or out of the contract would be instituted in the court at Salem, the Division Bench of Calcutta High Court held that it was true that the suit could have been instituted either at Salem or at Howrah under Section 20(c) of the Code of Civil Procedure, as the cause of action, admittedly arose in part in both the places and it was therefore a case where two courts had concurrent jurisdiction and it was open for the parties to make a choiice restricting the court in which the suit under the contract could be instituted. It was held that both courts having territorial jurisdiction, the parties by their agreement waived their right to institute a suit except at Salem. In the case of Hakam Singh Vs. M/s Gammon (India) Ltd.- (1971)1 SCC 286, it has been held that it was not open to the parties to agreement to confer by their agreement jurisdiction on a court which did not possess it under the Code. But where two courts or more have under the Code of Civil Procedure 9 jurisdiction to try the suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts was not contrary to public policy and such an agreement did not contravene section 28 of the Contract Act. In the case of Salem Chemical Industries Vs. Bird & Co.- AIR 1979 Mad. 16, it was held in relation to the terms and conditions attached to the quotation which contained the arbitration clause providing therein that 'any order placed against this quotation shall be deemed to be a contract made in Calcutta and any dispute arising therefrom shall be settled by an arbitrator to be jointly appointed by us'. It was held that it did not mean to confer an exclusive jurisdiction on the court at Calcutta, and when a part of the cause of action had arisen at Salem, the court there had also jurisdiction to entertain the suit under Section 20(c) of the Code of Civil Procedure. In the case of M/s Shriram City Union Finance Corporation Ltd. Vs. Rama Mishra- AIR 2002 SC 2402, the Hon'ble Apex Court while examining Clause 34 of the Contract agreement entered into between the parties in relation to filing of the suit at Calcutta for the purpose of jurisdiction, held in para 9 as under: “In the present case the impugned order of the High Court and the order passed by the appellate court arises out of the order passed by the Civil Judge, Bhubaneshwar. We have to keep in mind there is difference between inherent lack of jurisdiction of any Court on account of some statute and the other where 10 parties through agreement bind themselves to have their dispute decided by any one of the Court having jurisdiction. Thus the question is not whether the Orissa Courts have the jurisdiction to decide respondent's suit but whether the respondent could have invoked the jurisdiction of that Court in view of the aforesaid Cl.34. A party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy. It is open for a party for his convenience to fix the jurisdiction of any competent court to have their dispute adjudicated by that Court alone. In other words if one or more Court has the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent Courts to decide their disputes. In case parties under their own agreement expressly agrees that their dispute shall be tried by only one of them then the party can only file the suit in that Court alone to which they have so agreed. In the present case as we have said through Cl.34 of the agreement, the parties have bound themselves that any matter arising between them under the said contract, it is the Courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open for them to choose a different jurisdiction as in the present case by filing the suit at Bhubaneshwar. Such a suit would be in violation of the said agreement.” After carefully examining the principles laid down in the decisions rendered by various High Courts and the Hon'ble Apex Court and in the facts and circumstances of the case, looking to the contents of plaint and business of dealings between both sides and also taking into consideration the provisions of Section 20(c) CPC in relation to cause of action, I am of the opinion that the printed condition on the order-form would not absolutely oust the jurisdiction of the courts at Ahmedabad but at the same time as business transaction 11 between the parties shows that part of contract was performed at Kishangarh and on occasions money was also paid in relation to transaction at Kishangarh as stated in the plaint, the courts at Kishangarh are having jurisdiction to try the present suits filed by the plaintiff-respondent. I am further of the opinion in view of the printed condition to the effect that 'all subject to Kishangarh jurisdiction' and the form signed by the parties to the litigation, the court at Kishangarh (Rajasthan) does not lack jurisdiction to try present suit by the respondent plaintiff at Kishangarh. In view of fore-going discussion, the answer to the points framed is accordingly and the revision petitions filed by the petitioners being devoid of merit deserve to be dismissed. In the result, both the revision petitions are dismissed. (S.P.PATHAK) J. bblm