AO/271/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 271 of 2008 With CIVIL APPLICATION No. 9769 of 2008 In APPEAL FROM ORDER No. 271 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= GAYATRI SEEDS AGENCY – Appellant. Versus NATH SEEDS PVT LTD & 6 - Respondents ========================================================= Appearance : VIRAL K SHAH for Appellant. None for Respondent(s) : 1 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/08/2008 ORAL JUDGMENT 1. Present appeal from order is filed by the AO/271/2008 2/9 JUDGMENT appellant-original plaintiff to quash and set aside the order dated 15.7.2008 passed by the learned Principal Senior Civil Judge, Idar below Exh.79 in Special Civil Suit No.11 of 2007 by which the learned trial court has partly allowed the said application ordering to return the plaint to the plaintiff as per provisions contained in Order 7 Rule 10 of the Code of Civil Procedure, 1908, for presenting the same to the competent court of law at Aurangabad. 2. The appellant herein-original plaintiff had instituted Special Civil Suit No.11 of 2007 against the respondents herein-original defendants for a decree of Rs.68,77,959/-. It appears that in fact the civil suit was instituted in the Court of learned Principal Senior Civil Judge at Himatnagar which was numbered as Civil Suit No.72 of 2000. However, on establishment of the Court at Idar, the aforesaid suit came to be transferred to the Court of learned Principal Senior Civil Judge, Idar and the same was renumbered as Special Civil Suit No.11 of 2007. In the said suit, the defendants submitted application AO/271/2008 3/9 JUDGMENT Exh.79 praying for framing of preliminary issue with respect to territorial jurisdiction and to dismiss the said suit. It was submitted that as per the agreement between the parties more particularly condition No.15 in case of any dispute between the parties only the court at Aurangabad would have the jurisdiction and therefore the court at Idar had no territorial jurisdiction. It was submitted that in view of exclusive territorial jurisdiction with the Court at Aurangabad, it was requested to raise the preliminary issue and to dismiss the suit. The said application came to be resisted by the appellant herein-original plaintiff by submitting that the said application is given at a belated stage and the dispute with respect to jurisdiction is a mixed question of fact and law and the same can only be decided at the final hearing of the suit and on leading proper evidence. The learned trial court considering the agreement/contract produced at Mark 6/1 and 6/2 and condition No.15 as well as relying upon the decision of the Hon'ble Supreme Court in the case of M/s.Shriram City Union Finance Corporation Ltd., vs. Rama Mishra reported in AIR 2002 SC 2402 as AO/271/2008 4/9 JUDGMENT well as another decision of the Hon'ble Supreme Court in the case of Hakam Singh vs. M/s. Gammon (India) Ltd., reported in 1971(3) SCR 314 allowed the application Exh.79 partly by holding that in view of the specific clause in the contract that in case of any dispute the courts of law at Aurangabad alone have jurisdiction to adjudicate thereon, and therefore, the court at Idar would not have any jurisdiction and accordingly passed the order to return the plaint to the plaintiff for presenting the same before the competent court at Aurangabad. 2.1 Being aggrieved and dissatisfied with the aforesaid order passed below Exh.79 in returning the plaint to the plaintiff for presenting the same before the competent court at Aurangabad, the appellant-original plaintiff has preferred the present appeal from order. 3. Shri Viral K.Shah, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned trial court has materially erred in allowing the application Exh.79 which was submitted AO/271/2008 5/9 JUDGMENT after period of 8 years of filing the suit. It is submitted that initially the suit was filed at Himatnagar and thereafter the same was transferred to Idar Court and thereafter after period of 8 years the present application has been submitted which ought not to have been allowed by the learned trial court. Even otherwise the question with regard to jurisdiction is a mixed question of fact and law and the same can be decided only on leading proper evidence at the time of trial and therefore it is requested to allow the present appeal from order. 4. At the outset it is required to be noted that the summary suit is filed by the appellant herein- original plaintiff for recovery of Rs.58,77,959/- for the goods supplied by the plaintiff to the defendants on the basis of two contracts dated 23.1.1999 and 7.4.1998 Mark 6/1 and Mark 6/2. In the contract/agreement Mark 6/1 clause(b) and in the contract/agreement March 6/2 clause (c) reads as under: “This agreement is deemed to be entered into by the parties concerned at Aurangabad and in case of any dispute, the courts of law in Aurangabad alone AO/271/2008 6/9 JUDGMENT shall have jurisdiction to adjudicate there on.” 5. Thus, as per the agreement between the parties, in case of any dispute arising out of the aforesaid agreement/contract, only the courts of law at Aurangabad alone shall have jurisdiction to adjudicate the same. It is the contention on behalf of the appellant-original plaintiff that the said application is submitted at a belated stage and therefore the same ought not to have been entertained and allowed by the learned trial court. In the case of Harshad Chiman Lal Modi vs. DLF Universal Ltd. and Another reported in (2005) 7 SCC 791, the Hon'ble Supreme Court has observed and held that objections as to territorial and pecuniary jurisdiction have to be taken at the earliest possible opportunity, and in any case before settlement of issues, and cannot be allowed to be taken at a subsequent stage. However, where a court has no jurisdiction over subject-matter of suit it cannot take up the cause or matter, and an order passed therein is a nullity and invalidity of a null degree can be set up whenever it is sought to be enforced as a foundation for a right even at the AO/271/2008 7/9 JUDGMENT stage of execution or in collateral proceedings. 6. In the case of A.B.C. Laminart (P) Ltd. vs. A.P. Agencies, Salem reported in (1989) 2 SCC 163, while considering the similar cause in the agreement excluding court's jurisdiction, the Hon'ble Supreme Court has observed and held that as the parties had transacted the business inter-alia on the basis of clause 11, the said clause formed part of the agreement and the parties would be bound by it so long as they would be bound by the contract itself. It is further observed and held by the Hon'ble Supreme Court that each of the citizens has a right to have his legal position determined by the ordinary tribunal except, of course, in 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 dispute in respect of contract shall be subject. It is further held 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 AO/271/2008 8/9 JUDGMENT said that the parties have by their contract ousted the jurisdiction of the court. Where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. 7. Considering the above two decisions of the Hon'ble Supreme Court and the facts of the case on hand and the specific condition in the contract stated hereinabove and the agreement between the parties, only the courts of law at Aurangabad alone shall have jurisdiction to adjudicate the dispute and therefore the learned trial court has rightly passed an order returning the plaint to the plaintiff for presenting it to the competent court having jurisdiction at Aurangabad. No illegality has been committed by the learned trial court. 8. For the reasons stated above, present appeal from order fails and requires to be dismissed and is AO/271/2008 9/9 JUDGMENT accordingly dismissed. 9. In view of dismissal of appeal from order, no order in civil application. ( M.R. SHAH, J. ) syed/