CRP 90/2010 BEFORE HON’BLE MR. JUSTICE H. N. SARMA The petitioner feeling aggrieved by the rejection of his prayer to retur n the plaint of Title Suit No. 223/08 filed in the court of learned Civil Judge, Guwahati, for want of territorial jurisdiction to try the suit by the learned trial court vide impugned order dated 18/3/10 passed in Misc. (J) Case No. 268/0 8 has approached this Court praying for revising the said order u/s 115 of the C ode of Civil Procedure, 1908. 2. I have heard Mr. D.Das, learned counsel for the petitioner and Mr. GN Sa hewalla, learned Senior Counsel for the plaintiff/respondent. 3. The respondent herein as plaintiff instituted a Suit against the petitio ner impleading him as defendant No.1 registered as Title Suit No. 223/2008 and i s pending for disposal in the court of learned Civil Judge, No.3, Kamrup, Guwaha ti. The suit of the plaintiff is for declaration and permanent injunction; to b e more specific, the plaintiff sought for the following reliefs in the suit: a) a decree for declaration that the Power of Attorney dated 16/03/2002 alleged to have been executed by the Plaintiff, the Agreement for Hypothecation dt. 21/ 08/2006 and the Form No. 8 alleged to have been submitted on behalf of the Plain tiff for creation of charge to the Registrar of Companies, Shillong is illegal and void-ab-initio; b) a permanent injunction restraining the Principal Defendant No.1, its Director s, Executors, Officers, Employees, Attorneys, Agents, or any other person(s) cla iming under it from doing any act, deed or thing pursuant to the said Form No.8, and/r the said Power of Attorney dt. 16/03/2002 and/or the said Agreement for H ypothecation dt. 21/08/2006. c) a temporary injunction; d) full costs of the suit; and e) any other relief(s) to which the plaintiff is entitled under the law and equi ty. 4. As regards the cause of action for the suit it is pleaded in pargarph-20 of the plaint as follows: 20) That the cause of action for this suit arose at Guwahati on and from 28/11/ 2006 when the Plaintiff came across the publication of the notice in the Assam T ribune and obtained the certified copies of Form No.8 along with documents from the Registrar of Companies, Assam on 01/12/2006 when the notice dt. 20/11/2006 w ere received by the Plaintiff, 05/01/07 when the reply was sent by the Plaintiff and other subsequent and various dates within the jurisdiction of this Hon’ble Court. 5. At para-4 of the plaint, it is pleaded that the fact regarding publicati on of notice in The Assam Tribune daily dated 28/11/06 by which the defendant /p etitioner cautioned public in general in dealing with the plaintiff in relation of certain properties as those properties are charged with the Registrar of Comp anies, Assam in favour of the petitioner and falsely alleged that the plaintiffs are trying to dispose of the charged properties. The plaintiff also pleaded abo ut service of 3 notices by the defendant/ petitioner claiming hat the loan trans action between them was secured by charge of the property and that the plaintiff upon enquiry with the Registrar of Company, Shillong found that those charged p roperties are kept under charge u/s 132 of the Companies Act on the prayer of on e Pankaj Vyas claiming himself to be the attorney of the plaintiff. The plainti ff alleging the power of attorney in favour of the aforesaid person as fraudulen t and manufactured documents converting some blank papers into such power of att orney has challenge the same in the suit for adjudging it to be fraudulent, ille gal and void ab-initio. 6. The basis of the suit of the plaintiff as indicated above is that the pr esent petitioner(defendant No.1) resorted to fraudulent activities in preparing and manufacturing the power of attorney from certain blank papers left by the M anaging Director of the plaintiff with the defendant which were later on fabrica ted into power of attorney dated 16/3/02 by which the defendant/petitioner is sh own to have been appointed as the true and lawful attorney of the plaintiff. It is the further case of the plaintiff that since the alleged power of attorney i s a fraudulent one, the action take on the basis of such power for creating the so called charge created by way of hypothecation and mortgage of assets of plain tiff are also invalid and inoperative in law. 7. The defendant/petitioner by filing written statement denied the allegati on levelled against them. In the written statement, the defendant/petitioner ha s raised a preliminary objection to the effect that the civil court at Guwahati has no territorial jurisdiction to adjudicate upon the dispute inasmuch as the p arties by an agreement dated 6/3/02 agreed that the court of Mumbai is vested wi th absolute jurisdiction to adjudicate the dispute as per Clause -27 of the agre ement. Along with written statement, the plaintiff also filed a separate applic ation u/s 21 read with Order 7 Rule 10 CPC praying to return the plaint holding that the learned trial court has no territorial jurisdiction to try the suit. T he said application was registered as Misc.(J) Case No.268/08. Against the afor esaid prayer of the defendant/petitioner, the plaintiff/respondent filed written objection denying the contention made by the defendant/petitioner. 8. The learned trial court after hearing both the plaintiff and the defenda nt, vide impugned order dated 18/3/10, rejected the prayer of the defendant and dismissed the misc. case, which is the subject matter of this petition. 9. During the course of hearing Mr. Das, learned counsel for the petitioner , referring to Clause-27 of the agreement dated 6/3/02 submits that the agreemen t would be subjected to jurisdiction at Mumbai and accordingly only the civil co urt at Mumbai would be competent court to try the dispute and accordingly the ju risdiction of the court at Guwahati is excluded to try this dispute. It is alter natively submitted that even if the said clause is not treated as an absolute ba r for the civil court at Guwahati to try the suit on the face of the language of the clause, even then the intention of the parties as can be gathered from the various clauses of the agreement, it can safely be concluded that the court at G uwahati has no territorial jurisdiction to try the suit. In support of his cont ention, Mr. Das referred to following decisions of the Apex Court: 1) (2009) 3 SCC 107 ( Rajasthan State Electricity vs. Universal Petrol Chem icals) 2) (1995) 4 SCC 153 (Angile Insulation v. Davy Ashmore India Ltd. and anot her ) 3) (2006) 1 SCC 206 ( Rite Approach Group Ltd vs. Rosoboron Export) 4) (2002) 9 SCC 613 (Shriram City Union Finance Corporation Ltd. vs- Rama M ishra ) 5) 2004(4) SCC 671 (Hanil Era Textiles Ltd. vs. Puromatic Filter(P) Ltd.). 10. Per contra, Mr. Sahewalla, learned Senior Counsel appearing for the plai ntiff/respondent submits that the ouster clause -27 of the agreement dated 6/3/2 002 on the face of it does not oust the jurisdiction of civil court at Guwahati and the said ouster clause does not disclose that the dispute arising out of the agreement would be subjected only to Mumabi court leading to the further conclu sion that court at Guwahati has no such territorial jurisdiction to try the suit . It is further contended that the power of attorney, validity of which is chal lenged in the suit, is not a registered document. By the alleged power of attor ney, power is not given to an individual but to a juristic person and on the fac e of illegal and unauthorised manufacture of the said power of attorney out of c ertain blank signed papers, such a document would not authorize anybody to exerc ise any power and the power alleged to be exercised by the attorney in creating charge over the property of the plaintiff are illegal, unauthorised and improper . It is further contended that the part of cause of action having been arisen w ithin the jurisdiction of court at Guwahati, the court at Guwahati has territori al jurisdiction to try the suit. It is further pointed out that only in one agr eement executed on 6/3/02, the so called ouster clause is incorporated although in fact in the other agreement executed on 6/3/02 on the basis of which allegedl y the power of attorney was made, there is no such ouster clause, and in that vi ew of the matter, it is argued that the learned trial court has arrived at a pro per and just decision in exercise of the power vested on him by law requiring no interference in the revision petition. 11. In support of his submission, Mr. Sahewalla, apart from the decisions re ferred by Mr. Das also referred the principles deduced in the following decision s: 1) (1982) 2 SCC 163 (ABC Laminart (P) Ltd. vs. A.P. Agencies) 2) 1984 (1) GLR 405 (All Bengal Transport Agency and others v-s- Shri Hare Krishna Banik) 3) 1999 (2) GLR 14 (Union Roadways PVt. Ltd. vs. Vinay Cements Ltd and othe rs and Entech Consultancy Bureau and another) 4) 2006 (3) GLT 183 (Presson Manufacturing Ltd. vs. Woodlands Instruments L vt. Ltd. Another ) 5) (1989) 2 SCC 163 (ABC Laminart (P) Ltd. vs. A.P. Agencies, Salem) 12. In the conspectus of the submissions made by the learned counsels, I hav e perused the materials available on record which are annexed to the petition. In view of the rival contentions made on behalf of the contesting parties, it is required to be scrutinized as to whether the learned trial court committed any jurisdiction error in passing the impugned order rejecting the prayer of the pla intiff and in accepting the suit for necessary disposal. 13. To arrive at such a decision, let me consider first the ouster clause as contained in para-27 of the agreement dated 6/3/2002. For the sake of ready re ference, clause -27 of the agreement is quoted herein below: 27) It is agreed hereto as to performance or non-performance or terms of perfor mance or validity, subsistence, termination, cancellation or abandonment of this Agreement or interpretation of terms of this Agreement or any ancillary or inci dental question thereto shall be referred to the sole arbitration of Hon’ble Jus tice at Mumbai or to the Sole Arbitrator to be nominated by the Party of the Fir st Part. The Sole Arbitrator will be entitled to give any interim relief or int erim award. Subject to the aforesaid, the Arbitration will be governed by the p rovisions of Arbitration and Conciliation Act, 1996. This Agreement shall be su bject to the jurisdiction at Mumbai. 14. Scrutiny of the aforesaid clause-27 would disclose that the basic agreem ent arrived by the parties is regarding the reference to the arbitration as to p erformance or non performance or terms of performance or validity, subsistence, termination, cancellation or abandonment of the Agreement or interpretation of terms of the Agreement or any ancillary or incidental question thereto . The fi nal sentence of the aforesaid clause, runs like thus This Agreement shall be s ubject to the jurisdiction at Mumbai. In order to oust the court from its jurisdiction to adjudicate the dispu te such ouster clause should be clear and specific attracting no other meaning o ther than exclusion of jurisdiction, in clear term. 15. The ouster clause, on the face of it, is not specific one. In ABC Lamin art (P) Ltd (supra), affirmed in Hanil Era Textiles Ltd. (supra), the Apex Court held that when an ouster clause is clear, unambiguous and specific accepted not ions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction and as regards con struction of the ouster clause when words like alone , only , exclusive the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim expression unius est exclusion alterius - express ion of one is the exclusion of another - may be applied. But what is an appropr iate case that 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 specif ied in a contract an intention to exclude all others from its operation may in s uch cases be inferred. It has therefore to be properly construed. 16. Mr. Das submits that the perusal of the various clauses of the agreement disclose the intention of the parties to the effect that the suit or legal proc eeding relating to the agreement is to be tried only in the court at Mumbai to t he exclusion of all other courts. In this connection the learned counsel referre d to the clause 1(v) and 21(1)(3) of the agreement dated 6/3/02. In the aforesai d clauses, it is provided that the agreement in question would be registered at Mumbai and all the bills to be paid by first party/plaintiff to the 2nd party/ d efendant /petitioner in the bank account to be opened at Mumbai. Mr. Das furthe r referred that the bill of exchange dated 27/3/04 was made at Mumbai and the pu rchase order is to be placed by the petitioner from Mumbai. Referring to the af oresaid facts, Mr. Das submits that the aforesaid clauses agreed to by the parti es establish that both the parties agreed to confine themselves to decide the ev entual dispute only in the court at Mumbai. It is argued that vide another agre ement executed on the same day, the defendant agreed to provide short term loan to the plaintiff on security of charges of movable properties and accordingly as per the said agreement it was agreed between the parties that the plaintiff wou ld execute necessary deed of hypothecation, mortgage or any deed or agreement an d on such an agreement the disputed power of attorney in question was executed b y the defendant. However, in this second agreement dated 6/3/02, no ouster clau se is provided with. Learned counsel further submits that although there is no specific ouster clause in the second agreement, but due to continuation of basic transaction between the parties agreed upon in the first agreement, the ouster clause incorporated in para-27 therein would remain operative to raise a defence of want of territorial jurisdiction of the Guwahati court in challenging the va lidity of the power of attorney. 17. In a suit, the plaintiff is the dominus litis. The plaintiff has the ch oice to institute the suit in any court having such jurisdiction to entertain th e suit and jurisdiction dependant on the averments made in the plaint and not on the pleaded facts in the written statement. U/s 20 of the CPC, a plaintiff is entitled to file a suit within the local limits of whose jurisdiction the cause of action wholly or in part arise. Thus under the CPC, one or more courts may h ave such jurisdiction to adjudicate the dispute raised in the plaint with regard to place of existence of the immovable property, place of residence or work or where cause of action wholly or in part arise. When there is more than one court having jurisdiction to decide the dispute such courts are called court of avai lable or natural jurisdiction in opposition to the exclusive jurisdiction . T he jurisdiction is not limited to an actual infringement of the right to suit bu t it is based on material facts on which it is founded or pleaded in the plaint. If a court does not have any jurisdiction to decide the suit, the parties cann ot make an agreement to decide the suit in that court. However, if an agreement is arrived at to confine to a particular court for redressal of the grievance, such agreement would not be void. But an agreement which purports to oust the ju risdiction of a court absolutely would be contrary to public policy and unenforc eable. A litigant has the right to have his legal position determined by the or dinary tribunal, but with the exception in respect to a contract (a) when there is an arbitration clause which is valid and binding under the law; and (b) when parties to a contract agree as to the jurisdiction to which the disputes in resp ect of the contract shall be subject. A contract which purports to destroy the right of one or both of the parties to submit questions of law to the courts is contrary to public policy and is void pro tanto. Arbitration is a statutory mode of settlement; and as a matter of commercial law and practice parties to a contract may agree as to the jurisdiction to which all or any disputes on or ari sing out of the contract shall be subject. 18. In the case of Lee v. Showmen’s Guild of Great Britain, reported in (195 2) 1 ALL ER 1175, Lords Denning said - Parties cannot by contract oust the ordinary courts of their jurisdiction. The y can, of course, agree to leave questions of law, as well as questions of act, to the decision of the domestic tribunal. They can, indeed, make the tribunal t he final arbiter on questions of fact, but they cannot make it the final arbiter on questions of law. They cannot prevent its decisions being examined by the c ourts. If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recou rse at all to the courts in cases of error of law, then the agreement is to that extent contrary to public policy and void. (Referred to in ABC Laminart(supra )). 19. Survey of the various decisions of the Apex Court and other High Courts disclose that by now it has become the settled principle that where there are tw o or more competent courts which can entertain the suit having part of the cause of action arisen there within, if the parties to contract agree to one such cou rt to try the dispute such agreement would be valid. But such contract must be clear, unambiguous and explicit and not vague and not hit by Section 23 and 28 o f the Indian Contract Act. 20. In the Case of All Bengal Transport Agency (supra), His Lordship Hon’ble Hansaria J. (then Judge of the Gauhati High Court) after discussing various ju dicial pronouncements of the Apex Court and other High Courts proceeded to hold that before a court’s due jurisdiction can be ousted on the strength of a clause like the one at hand, the meeting of mind must not be in doubt. The Court must be satisfied that the party who is sought to be bound down by the term had know ledge of the same. The learned Judge further pointed out that it is doubtful h ow far clear knowledge can be ascribed to a party, or his servant or employee, w ho may often be illiterate, to some such clause printed at the back of, say a co nsignment note and in one of the various terms printed in close small letters wi thout even bearing the signature of the person concerned. The following principles were deduced by the Court on the question as to when such an agreement would oust the jurisdiction of a competent court: a) the agreement must be clear and unambiguous; b) any one sided declaration will not do in this regard; c) the court must be satisfied that party sought to be bound by the agreeme nt had knowledge of the same; d) plea of waiver, if taken, shall also have to be examined; e) the court which is mentioned in the agreement must be one which has juri sdiction dehors the agreement to entertain the matter; f) the agreement will not be an absolute bar to the jurisdiction , but whil e trying to uphold the solemnity of the contract, the court will see if there ar e countervailing oppressive circumstances; and g) a revisional court will not interfere with the matter unless there is fa ilure of justice. At paragraph 12 of the judgment, the learned Judge also gone into the question o f relative hardship /oppressiveness of such ouster clause and held that any rigi dity in this regard will hit the lower strata of the society more as compared to well -off segment inasmuch as the former would find it very difficult to approa ch a far away court for realizing a small sum. It is further observed that a c ourt of justice as distinguished from a court of law, cannot be a party to such a result. Remedy in most of such cases will became elusive as, for small amount hardly anybody will take long journeys at great cost for years. Now, a right w ithout remedy is like a writ in water. This will cause great dent to the doctri ne of ubi jus ibi remdium which has to be avoided. Matters relating to procedu re are devised to advance justice, and not to thwart the same, it cannot be allo wed to take the forum of a punishment a thing to trip people up. (ref. Bhagwan v s. Moolchand, AIR 1983 SC 355) 21. The requirement of consensus adidem or meeting of mind between the part ies to exclude the jurisdiction of a particular court by executing such an exclu sionary clause was also upheld by the High Court in the case of M/s Chema Enterp rise (supra). 22. In Halsbury’s Law of England, 4th Edition, Vol -9, page - 242, it is re flected on the subject as follows: In order to give effect to exclusion clause, the following general principles of law of contract, where appropriate, is required to be kept in mind by the court in order to control the possibilities of abuse inherent in complete freedom of contract: 1) a contracting party seeking to rely on an exclusion clause to save himse lf from liability in contract or tort to the other contacting party must show th at it was incorporated as a term of the contract, which usually involves the tak ing of reasonable steps to bring it to the notice of the other party and similar principles of incorporation apply to the exclusion by non-contractual disclaime r of tort liability; 2) An exclusion clause is to be construed strictly against the party who in troduced it and seeks to rely on it, this is known as the contra proferentem rul e; 3) Whether a clause amounts to an exclusion clause is a matter of substance and effect, so that a similar attitude is taken to indemnity clauses inserted f or the same purpose; 4) There is no objection on public policy grounds to excluding rights of se t-off; 5) If an equitable remedy is sought, the discretion of the court cannot be fettered by a contractual provision; 6) Where there is a contract between two parties containing an exclusion cl ause, a third party, will not be allowed to shelter behind that clause in the ab sence of clear evidence that he is a party to the contract and that the clause w as intended to protect him, similarly, the burden of an exclusion clause in such a contract will not generally be imposed on him; 7) Reflecting the above analysis, there seem to be two divergent views as t o how a court should deal with exclusion clauses. First, the court may seek to establish the effect of the contract as a whole, taking