IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 FAO.No. 234 of 2006() --------------------- AGAINST THE ORDER IN IA 2618/2001 IN OS.46/2000 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------------------------------------------- MRS.LATHA S.MENON, W/O.A.V.S.MENON, PROPRIETRIX, GLOBAL AGENCIES, P.O. BAYPORE NORTH, CALICUT. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): PETITIONER/DEFENDANT: -------------------------------------------------------------- M/S. SOUTHERN REFINERIES LIMITED, CORPORATE OFFICE, KOWDIAR P.O.,THIRUVANANTHAPURAM. REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN SRI.TITUS THOMAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 234 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of June, 2009. JUDGMENT Raman, J, Appellant is the plaintiff in O.S. No.46 of 2000 on the file of the First Additional Sub Court, Kozhikode. The respondent is the sole defendant in the suit. The suit is for realization of money for goods sold and for return of the security. The defendant contended among other things that the Kozhikode court has no jurisdiction and the Trivandrum court alone has got exclusive jurisdiction in the matters arising out of the contract and sought for an adjudication on the question of jurisdiction as a preliminary issue by filing I.A. 2618 of 2001. The court held that the Kozhikode court has no jurisdiction and the Trivandrum court alone had jurisdiction and directed return of the plaint. Reliance was placed on clause 23 of the agreement and nothing else. It is contended by the appellant that the decision on the jurisdictional issue rendered by the court below is erroneous and clause 23 is misconstrued. F.A.O. 234/2006. 2 2. We have heard the parties. 3. Clause 23 of the agreement reads as follows: “For any dispute that may arise from this agreement the same shall be subject to Trivandrum jurisdiction.” It is stated that while construing a clause ousting jurisdiction, it is pertinent to see whether there is ouster of jurisdiction of other courts. If 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 the construction of the ouster clause, if the words like “alone”, “only”, “exclusive” and the like are used, there may not be any difficulty. But there may be cases, where such expressions might not have been used. But still, there may be scope for application of the maxim expressio unius est exclusio alterius provided the intention of the parties can be gathered from a variety of circumstances proved. In other words, what is an appropriate case will depend upon the facts of each case. In such a case, mention of one thing may imply exclusion of another. When F.A.O. 234/2006. 3 jurisdiction is specified in a contract, an intention to exclude all others from its operation may in such cases be inferred. Therefore, it has to be properly construed. Admittedly, from the extracted clause, it can be seen that here is a case where the words like “alone”, “only” and “exclusive” are absent in the clause. Therefore, the question is whether this is a case where expression of one could be said to be the exclusion of another and whether facts pleaded and proved would justify such an interpretation arise for consideration. Admittedly, either side did not and could not adduce any evidence and the court below proceeded to construe and interpret clause 23 and held that the Kozhikode court has no jurisdiction. The view as taken by the court below is clearly wrong and contrary to the settled position. In this regard, we need to refer only two decisions of the Apex Court. In A.B.C. Laminart Pvt. Ltd. v. A.P.Agencies, Salem ((1989) 2 SCC 163), it was held that even in the absence of express exclusionary words in the clause, maxim expressio unius est exclusio alterius may be applied in appropriate cases where the clause only specifies one of the two F.A.O. 234/2006. 4 courts having jurisdiction without specifically excluding jurisdiction of the other, the court has to examine the facts to see whether the clause, which specified one of the courts has jurisdiction have the effect of excluding the other. The same view is reiterated in the subsequent decision of the Supreme Court reported in Vijay Shekhar v. Union of India ((2004) 4 SCC 670) In the result, we set aside the order passed by the court below and remand the case for considering the issue afresh after affording an opportunity to adduce evidence to both sides on this issue and depending upon the finding on the said issue, it will proceed to deal with the case accordingly. Parties shall appear before the court below on 27.7.2009. The appeal is allowed as above. P.R. Raman, Judge P. Bhavadasan, Judge sb.