1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.432 OF 2011 IN SUMMONS FOR JUDGMENT NO.372 OF 2009 IN SUMMARY SUIT NO.1246 OF 2009 Rajendra Vasant Masurkar, B/35, Nalanda Pragati CHS, Chembur, Mumbai 400 071. Plaintiff VERSUS Webal Technology, A Government of West Bengal Undertaking, Plot No.5, Block-EP & GP, Sector-V, Saltlake, Kolkatta-700 091. Defendant Mr.Shamrao Gore i/by Sachin Masurkar for Plaintiff. Mr.Satish Shetye a/w Ms.Sneha Phene i/by Little & Co. for Defendant. CORAM : S.J.KATHAWALLA, J. DATE : 29th April 2011. PC : 1. The present Chamber Summons is taken out by the Defendant wherein the Defendant has prayed that the leave granted to the Plaintiffs under Clause-XII of the Letters Patent Act to institute the above Summary Suit No.344 of 2008 in this Court by its Order dated 10th October 2009 be revoked and the plaint be returned to the Plaintiff. 2. The above summary suit is filed by the Plaintiff against the Defendant seeking an order and decree against the Defendant to pay to the Plaintiff a sum of Rs.1,60,432/- along with interest thereon @ 18% p.a. or such other rate of interest as this Hon'ble Court deems fit and proper 2 from the date of filing of the suit till payment and/or realization thereof. According to the Plaintiff, the Defendant Webal Technology Limited (a Government of West Bengal undertaking) by its work order bearing No.WTL/WO/JKND/001, dated 4th May 2005 placed an order on the Plaintiff to do the printing work and supply of electoral rolls and to raise bills accordingly. The Plaintiff complied with the said printing job and supplied the electoral rolls as per the instructions and directions of the Defendants. The Plaintiff has in the plaint craved leave to refer to and rely upon the said original work order dated 4th May 2005 issued by the Defendant instead of annexing the same to the plaint. According to the Plaintiff, after completion of the job, the Plaintiff raised two bills dated 26th September 2005 for Rs.40,000/- and Rs.4,34,700/- respectively. The said bills are annexed and marked as Exhibits-A and B respectively to the plaint. According to the Plaintiff, the Defendant has made part payment of Rs.3,14,368/- by way of demand draft dated 4th July 2006 to the Plaintiff against the said bills thereby leaving a balance of Rs.1,60,432/-. According to the Plaintiff, thereafter he made several requests to the Defendant and its concerned officers for payment of his dues. The Plaintiff being an ex-employee of the Defendant did not initiate any legal action immediately. However, the Defendant totally failed and neglected to comply with their commitment to pay the dues to the Plaintiff because of which the Plaintiff had no other alternative but to file the present suit seeking payment of his legitimate dues. 3. After lodging of the above suit, the Plaintiff moved a petition before this Court seeking leave under Clause-XII of the Letters Patent Act to institute the suit in this Court against the Defendant. Paragraph 2 of the leave petition seeking leave under Clause-XII of the Letters Patent is reproduced hereunder :- "2. The Plaintiff has his residential address as well as business address as stated above in Bombay. The Defendants are having their office at Kolkatta. The bills/invoices at Exhibit-A and B to the plaint were raised by Plaintiff to Defendants from Bombay. The electoral rolls 3 were published, printed and delivered from Bombay and the Agreement in respect of grant of said order was executed in Bombay between the Defendants and the State of Maharashtra. The part payments are also made to the Plaintiff in Bombay. The substantial, part of cause of action has arisen within the jurisdiction of this Hon'ble Court. However, since the Defendants are having their office at Kolkatta and Ranchi. This Hon'ble Court has jurisdiction to try and entertain the present suit subject to leave being obtained by the Plaintiff under clause XII of law of letter patent." 4. This Court was pleased to grant leave under Clause-XII of the Letters Patent Act to the Plaintiff on 22nd October 2008. The Defendant has now taken out the present Chamber Summons seeking revocation of the said leave granted under Clause-XII of the Letters Patent by this Court. The learned counsel for the Defendant has pointed out that the Plaintiff has intentionally not annexed the work order issued by the Defendant to the plaint wherein it is categorically set out that "All disputes are subject to Kolkata Jurisdiction only.". It is submitted that the said work order was accepted by the Plaintiff and pursuant to the said work order the work as ordered therein by the Defendant is carried out by the Plaintiff. In fact, the invoices raised by the Plaintiff also shows that the same has been raised by the Plaintiff pursuant to the said work order dated 4th May 2005. It is therefore also established that the Plaintiff has accepted the contract on the terms and conditions set out in the work order and has carried out the work as per the work order and pursuant thereto has raised two invoices on the Defendant. 5. The learned advocate for the Defendant has relied on the decision of the Apex Court in case of A.B.C.Laminart Pvt. Ltd. and another Vs. A.P. Agencies, Salem (1989)2-SCC-163 wherein the appellant, a manufacturer and supplier of metallic yarn having its registered office at Udyognagar, Mohamadabad, Gujarat within the jurisdiction of Civil Court, at Kaira had entered into a contract with the respondent for supply of specific quantity of metallic yarn to the respondent. Clause-11 of the contract, which was included in the general terms and conditions of sale, 4 provided : "Any dispute arising out of this sale shall be subject to Kaira jurisdiction". Since the disputes arose, the respondent filed a suit against the appellant in the Court of Subordinate Judge, at Salem. The Trial Court allowed the preliminary issue raised by the appellant regarding jurisdiction and held that it had no jurisdiction to entertain the suit in view of Clause-11. The High Court allowed the appeal of the respondent and directed the Trial Court to take the plaint on file and dispose of the appeal on merits on other issues. Hence, a special leave petition was filed before the Apex Court. The Apex Court after holding in paragraph 16 of its decision that 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, went on to examine the case before it. After discussing the relevant case law on the subject the Apex Court held that in Clause-11 of the general terms and conditions ex-facie exclusionary words like `exclusive', `alone', `only' and the like are not found. Under the facts and circumstances of the case, it was therefore held that Clause-11 did not clearly, unambiguously and explicitly exclude the jurisdiction of other Courts. That being the position it could not be said that the jurisdiction of the Court at Salem, which Court otherwise had jurisdiction under the law, was expressly excluded. The Apex Court therefore found no error or infirmity in the impugned judgment of the High Court. 6. The learned advocate for the Defendant submitted that in the present case, firstly since the work order which specifically provides that all disputes are subject to Kolkata jurisdiction only, is issued from Kolkata and the invoices are also raised pursuant to the said work order, the jurisdiction of all other Courts, which otherwise have jurisdiction to entertain the suit is excluded. The Plaintiff, therefore, could not have filed the present suit before this Court. Hence, the leave under Clause-XII of the Letters Patent granted to the Plaintiff be revoked. 5 7. The learned advocate for the Plaintiff has relied on an unreported decision of the learned Single Judge of this Court in the case of Basantlal Banarasilal Cotton Oil and Oil Cake Merchants and Commission Agents Vs. Western India Vegetables Products Ltd. in First Appeal No.122 of 1997 decided on 16th March 2007, wherein the learned counsel appearing for the appellant had pointed out that the bills sent by the Defendant bear a printed term that "all the disputes shall be subject to the jurisdiction of Civil Court at Lucknow. This Court rejected the contention of the learned advocate for the appellant and held that mere printing of such matter on the bills issued by the Defendant, is not enough to reach a conclusion that the parties agreed to subject themselves to the jurisdiction of the Court at Lucknow. The learned Single Judge has in his decision further relied on the decisions of the Hon'ble Apex Court in the case of Pathumma (d/o.Koopilan Uneen) and others Vs. Kuntalan Kutty (s/o.Koopilan Uneen) dead by L.Rs. and others (1981)3- SCC-589 and in the case of R.S.D.V.Finance Co. Pvt. Ltd. Vs. Shree Vallabh Glass Works Ltd. (1993)2-SCC-130 wherein it was held that an objection to the place of suing may not be entertained by an appellate or revisional court unless three conditions as enumerated in Section 21(1) of the Code of Civil Procedure, 1908 are satisfied. One of the important conditions is that it must be shown that there has been a consequent failure of justice. The learned advocate for the Plaintiff also relied upon a decision of the Apex Court in the case of M/s.Patel Roadways Limited, Bombay Vs. M/s.Prasad Trading Company AIR-1992-SCC-1514 and the decision of a Division Bench of this Court in Diamond Agencies and another Vs. Mysore Lamp Works Ltd. 1999(1)-L.J.-257. The learned advocate for the Plaintiff therefore submitted that this Court has jurisdiction to try and entertain the suit, and the Chamber Summons of the Defendant seeking revocation of leave granted under Clause-XII of the Letters Patent be dismissed. 8. I have considered the submissions advanced by the learned advocates for the parties and the decisions of the Hon'ble Apex Court as 6 well as this Court relied upon by them. In the present case admittedly the Defendant has placed its work order dated 4th May 2005 from Kolkata. The work order clearly provides a condition that "All disputes are subject to Kolkata Jurisdiction only." (emphasis supplied). The Plaintiff has admittedly acted upon the said work order by supplying goods in pursuance thereof and raising invoices based on the said work order. This establishes beyond any doubt that the Plaintiff has accepted the conditions mentioned in the work order and the same cannot be treated as a unilateral condition on the part of the Defendant only. Since the condition in the work order clearly stipulates that all disputes shall be referred to the jurisdiction at Kolkata only, the said condition clarifies that the jurisdiction of all other Courts is ousted. It is settled law that the parties cannot confer jurisdiction on the Courts which otherwise would have no jurisdiction. However, in the instant case, since the work order is executed from Kolkata and the work order having been accepted by the Plaintiff and goods supplied by the Plaintiff in consequence thereof, it cannot be said that the Courts at Kolkata will have no jurisdiction. Therefore, the principle of law that an agreement between the parties to confer jurisdiction on the Courts which otherwise have no jurisdiction, will not apply to the present case. The decision of the Division Bench of this Court in Diamond Agencies and another (supra) shall be of no assistance to the Plaintiff. 9. In case of A.B.C.Laminart Pvt. Ltd. and another (supra), Clause-11 of the contract provided that "any dispute arising out of this sale shall be subject to Kaira jurisdiction". The question before the Apex Court therefore, was whether the said Clause-11 could be construed to have excluded the jurisdiction of the Court at Salem which otherwise would also have jurisdiction to entertain the suit. The Apex Court following the maxim `expressio unius est exclusio alterius' and `ex dolo malo no oritur actio' came to the conclusion that where the clause only specifies one of the two Courts having jurisdiction, without specifically excluding the jurisdiction of other Court, both the Courts had jurisdiction. The Apex Court further held 7 that as regards construction of the ouster clause is concerned, when words like `alone', `only', `exclusive' and the like are used, there may be no difficulty. Even without such words in appropriate cases, the maxim `expressio unius est exclusio alterius' may be applied. The Apex Court also held that in the Clause "any dispute arising out of this sale shall be subject to Kaira jurisdiction", ex-facie, there were no exclusionary words and therefore under the facts and circumstances of the case it was held that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. In the present case, the condition contained in the work order is "All disputes are subject to Kolkata Jurisdiction only". In view of the use of the specific word "ONLY" there is no doubt that the jurisdiction of all other Courts which otherwise have jurisdiction to entertain the suit is excluded by an agreement between the parties. Moreover, it would also not be out of place to mention that the Kolkata jurisdiction extends to "All" i.e. each and every dispute arising out of the said work order. 10. In the decision of the learned Single Judge of this Court, in case of Basantlal Banarasilal Cotton Oil and Oil Cake Merchants and Commission Agents (supra), the jurisdiction clause printed on the bill namely that all the disputes shall be subject to the jurisdiction of Civil Court at Lucknow was identical to the clause which was examined by the Apex Court in A.B.C.Laminart Pvt.Ltd. and another (supra). In view thereof, firstly it cannot be said that the said clause excludes the jurisdiction of all other Courts which would otherwise also have jurisdiction to entertain the suit. Again in the said decision the learned Single Judge has correctly held that mere printing of such a term/clause issued by the Defendant on his bill is not enough to reach a conclusion that the parties have agreed to subject themselves to the jurisdiction of the Court at Lucknow only and that the same was a one sided communication and there was absolutely nothing on record to show that the Plaintiffs agreed to such a term for subjecting all disputes to the jurisdiction of the Lucknow 8 Court only. The same is not the case in the matter at hand. In the present case the Defendant has at the very outset, by issuing the work order from Kolkata, incorporated the condition that "All disputes are subject to Kolkata jurisdiction only". The Plaintiff accepted and acted upon the said work order and supplied goods under bills which also made a reference to the said work order. Therefore, by no stretch of imagination it can be said that the condition set out in the work order is unilateral or that there is nothing on record to show that the Plaintiff agreed to the said term in the said work order. The decision of the Apex Court referred to in the decision of the learned Single Judge in Pathumma (d/o.Koopilan Uneen) and others Vs. Kuntalan Kutty (s/o.Koopilan Uneen) dead by L.Rs. and others (supra) was not a case where the parties had agreed to confer jurisdiction on one Court alone and exclude the jurisdiction of the other Courts having jurisdiction to entertain the dispute. The said case deals with section 21(1) of the Code of Civil Procedure, 1908 which provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. In the circumstances, the Apex Court held that in order that an objection to the place of suing may be entertained by an appellate or revisional court, the above three conditions must co-exist. However, since a case of failure of justice on account of place of suing was not made out, the Apex Court refrained from disturbing the finding arrived at by the High Court and remanded the appeal back to the High Court for deciding it on merits. In view thereof, the Apex Court held that the provisions of Section 21(1) of the Code of Civil Procedure, 1908 made it imperative for the District Court and the High Court not to entertain the objection, whether or not it was otherwise well founded. 11. The decision of the Apex Court in R.S.D.V.Finance Co. Pvt. Ltd. (supra) also referred to a case where the receipt issued by the appellant upon receiving the deposit, contained an endorsement "subject to Anand 9 jurisdiction". It was therefore inter alia held that the said endorsement did not oust the jurisdiction of other Courts otherwise competent to entertain the suit. In view thereof, both the decisions of the Apex Court referred to by the learned Single Judge of this Court in his decision would lend no assistance to the present Plaintiff. 12. In the circumstances, I am of the view that since the parties have agreed to confer exclusive jurisdiction on the Courts at Kolkata in respect of any dispute being the subject matter of the work order dated 4th May 2005 issued by the Defendant to the Plaintiff, the Plaintiff could not have filed the above suit before this Court. If the Plaintiff would have pointed out the condition in the work order issued by the Defendant and would have informed the Chamber Judge that the work order was accepted by the Plaintiff and in fact the goods were supplied by the Plaintiff pursuant to the said work order and also a reference to the work order is made in the bills raised by the Plaintiff on the Defendant, this Court would not have granted leave under Clause-XII of the Letters Patent Act to the Plaintiff to file the above suit before this Court. The leave granted by this Court under Clause-XII of the Letters Patent Act dated 22nd August 2008 shall therefore stand revoked and the plaint is directed to be returned to the Plaintiff for presentation before the appropriate Court. The Chamber Summons is accordingly disposed of. Refund of court fees, if any, as per Rules. (S.J.KATHAWALLA, J.)