RSA No. 4601 of 2009(O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 4601 of 2009 (O&M) Date of decision: December 8, 2010 Haldi Ram Bhujia Wala Private Limited.. ..Appellant. Versus Shakuntala Devi and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Mohit Garg, Advocate for the appellant. Mr. Vikas Chatrath, Advocate and Mr. Gaurav Deep Goel, Advocate for the respondents ... Rakesh Kumar Garg,J.(Oral) This is defendants' second appeal challenging the judgment and decree of the lower Appellate Court whereby appeal filed by the plaintiff- respondent against the dismissal of his suit for recovery was allowed and the suit for recovery of a sum of ` 5,39,410.85 and refund of advance amount of ` 75,000/- along with interest @ 6 % per annum from the date of filing of the suit till actual realization, was decreed. As per the averments made in the suit, plaintiff-respondent filed a suit for recovery against the appellant/defendant submitting that the plaintiff was authorized super distributor of the products of the appellant. The appellant through its Marketing Manager had received a sum of ` 25,000/- as security and a demand draft of ` 75,000/- as advance against products to be supplied to the plaintiff-respondent, thereafter, the appellant started supplying goods to the plaintiff- respondent as per agreement and she was making payment of the RSA No. 4601 of 2009(O&M) 2 amount of goods received by her. It is the further case of the plaintiff-respondent that appellant started supplying damaged and ill-manufactured products despite receipt of full payment of good quality products. On her complaint, appellant admitted its fault and agreed that in future, they will supply good quality material and they will also take back the damaged and unconsumable products. It was further alleged in the suit that plaintiff-respondent returned the damaged goods to the appellant and whenever the damaged goods were returned, appellant used to issue credit note for such material. Later on appellant told the plaintiff that in case of receipt of damaged material, the plaintiff should not return the damaged material and should send only empty wrapper for receiving the payment back through credit note in order to avoid huge transportation charges. Thus, under such adjustments, the plaintiff started returning empty wrappers to the appellant of the damaged products for the purpose of replacement or issuance of credit note. Under such settlement, the defendants were sent empty wrappers of damaged and unconsumable goods worth ` 3,07,213.71 and by hand worth ` 76,559.50. Despite receipt of such wrappers of damaged goods, the defendants neither replaced material nor issued any credit note. The appellant was also required to replace 100 cases of rejected Bhujia worth ` 1,50,000/-. Since the appellant failed to do so, suit for recovery of ` 5,39,410.85 regarding such damaged goods supplied to the plaintiff was filed. The plaintiff also claimed ` One lac on account of damages because her reputation was lowered in the market. Upon notice, appellant appeared through counsel. However, despite availing various opportunities failed to file written statement, hence defence of the appellant was struck of. After hearing learned counsel for the parties, the trial court RSA No. 4601 of 2009(O&M) 3 found that the plaintiff was not entitled to the decree as plaintiff had not sent the damaged material to the defendant and had sent only the empty wrappers. The trial Court also found that as per the agreement between the parties, the jurisdiction of the Jalandhar court was excluded, resultantly, suit was dismissed. However, on appeal before the lower Appellate Court, the judgment of the trial Court was set aside and lower Appellate Court found that from the unrebuttable evidence placed on record, the plaintiff-respondent was entitled for replacement of such goods or in the alternative for recovery of its price to the tune of ` 5,39,410.85. It was also found by the trial court that ` 75,000/- paid by the plaintiff- respondent on account of advance was also refundable. However, compensation on account of damages for lowering the reputation of plaintiff-respondent to the tune of ` One lac was not granted. Feeling aggrieved from the aforesaid judgment and decree of the lower Appellate Court, the defendant has filed this appeal submitting that the following substantial questions of law arise in this appeal:- 1. Whether in absence of any rebuttal or challenge the claim of the plaintiff can be granted without checking the legality and veracity of the same ? 2.Whether the parties are bound by the jurisdictional clause of the agreement ? In support of his case, learned counsel appearing on behalf of the appellant has vehemently argued that the evidence on record is not sufficient to pass decree against the appellant as the plaintiff- respondent has failed to prove on record that the alleged damaged material was sent back to the appellant-company. Learned counsel for the appellant has also argued that in RSA No. 4601 of 2009(O&M) 4 view of clause 4 of agreement between the parties, the Jalandhar Court had no jurisdiction as the parties have agreed for jurisdiction at Kolkatta court only. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the substantial questions of law as raised, deserved to be answered in favour of the appellant and the judgment and decree of the lower Appellate Court be set aside and suit of the plaintiff-respondent be dismissed. Mr. Vikas Chatrath, learned counsel appearing on behalf of the plaintiff/respondent has supported the impugned judgment and decree by submitting that the defence of the appellant was struck of and the unrebutted evidence, placed on record where-from it has been proved that the plaintiff-respondent was supposed to send the empty wrappers of the damaged material only as per the understanding between the parties, was sufficient to hold that plaintiff-respondent was entitled to the decree as prayed. Learned counsel has further argued that simply because the parties have agreed for raising any dispute under the jurisdiction of Kolkatta court will not exclude the jurisdiction of Jalandhar Court. He further argued that from clause 4 of the Agreement between the parties, it is clearly established that the courts at other places where a cause of action or a part of cause of action had arisen to the parties were not excluded specifically and since cause of action had arisen to the plaintiff-respondent at Jalandhar within the jurisdiction of Jalandhar, court had the jurisdiction and thus there is no merit in this appeal and the same is liable to be set aside. I have heard learned counsel for the parties and perused the impugned judgment and decrees. Admittedly, defence of the appellant was struck of, meaning thereby that there is no challenge to the pleadings and evidence led by the plaintiff-respondent in support of his case. Further, RSA No. 4601 of 2009(O&M) 5 it is not in dispute that it has come on record that as per the understanding between the parties, the plaintiff-respondent was supposed to send the empty wrappers of the damaged material to the appellant to claim credit note/replacement of material and the same were sent. In this view of the matter, it cannot be argued that findings of the lower Appellate Court are based upon no evidence to hold that the findings are perverse. The other argument raised by the appellant regarding the jurisdiction of the civil court at Jalandhar is again without any merit and is liable to be rejected. It is well settled that once the jurisdiction of other courts is not specifically excluded, such court would have jurisdiction to entertain and decide the suit. Clause 4 of the agreement as referred to in this case is similar to the clause interpreted by the Hon'ble Supreme Court of India in the case of A.B.C. Laminart Pvt. Ltd. and another Versus A.P. Agencies, Salem 1989(2) SCC 163 and M/s Cheema Enterprises Versus M/s Mayur Enterprises 2001(2) Apex Court Journal 262 (S.C.), wherein it was held that the agreement between the parties subjecting themselves to a particular jurisdiction will not exclude the jurisdiction of other places, if not excluded specifically. In view of the aforesaid, I find no merit in this appeal. No substantial question of law as raised by the appellant arises in this appeal. Dismissed. No costs. However, it may be relevant to mention at this stage that the respondent is entitled to satisfy the decree from the bank guarantee dated 17.5.2010 for a sum of ` 9,89,202/- drawn by Union Bank of India, Kolkatta which is valid up to 16.5.2011 and which has RSA No. 4601 of 2009(O&M) 6 been placed before this court as security furnished under the provisions of Order 41 Rule 1(3) C.P.C. in the first instance. December 8, 2010 (RAKESH KUMAR GARG) nk JUDGE