-1- 4 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE Q4T1-I DAY OF FEBRUARY. 201 1 BEFORE THE HON’BLE MRJUSTICE ARAVIND KUMAR CIVIL REVISION PETITION NO.1019/2010 [10] BETWEEN: S.A.L. LIMITED., REGISTERED OFFICE. 5/1, SHREEJI HOUSE, AHMEDABAD. GUJRAT. REP BY AUTHORISED DIRECTOR, KIROL KANJARIA, S/0.HEMANT BHAI KANJARIA. PETITIONER (By SRI JAYAVI’ITAL RAO KOLAR, SR. COUNSEL FOR SMT. VEENA HEGDE ADV.) AND: SHREENIDHI TRADING COMPANY. BY ITS PROPRIETOR, SHRI BADRINARAYANA NANDKISHOR LADDE, AGE: 40 YEARS, 0CC: BUSINESS, R/O.R.NO.345, KIRAN NIVAS, OPP: ALL INDIA RADIO STATION, HOSPET. 2. SHRI.RAJENDRA V.SHAH, AGE: MAJOR, 0CC: BUSINESS. CHAIRMAN OF S.A.L.STEEL LTD.. R/O,ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER. SARKHAEJ, GANDHINAGAR HIGHWAY. BODAKDEV. AHEMADABAD380 054. 3. SHRI.RAJENDRA ARORA, AGE: MAJOR, 0CC: BUSINESS. MANAGING DIRECTOR OF S.A.L.STEEL LTD., R/0.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. -2- ‘a 4. SHRLSUJALA.SHAH, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR (PURCHASE), R/O.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 5. SHRI.RAKESH RANJAN, AGE: MAJOR, 0CC: BUSINESS, ASSISTANT GENERAL MANAGER (PURCHASE), R/0.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 6. SHRLDEEPAK KUBERDAS SHAH, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR, S.A.L.STEEL LTD., R/O.PLOT NO.55, WARD NO. bA, OPP: IFFCO COLONY, GANDHIDHAM, GUJRAT-370 201. 7. SHRI.DYNANSHANKAR G.PANDEY, AGE: MAJOR, 0CC: BUSINESS, EXECUTIVE DIRECTOR, S.A.L.STEEL LTD.. R/O.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 8. SHRI.SURESH D.SHAH, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR, STEEL MILL & PERSONAL, S.A.L.STEEL R/O.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 9. SHRI.BABULAL M.SINGHAL, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR COMMERCIAL, S.A.L.STEEL LTD., R/O.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 10. SHRI.AMBALAL C.PATEL, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR, S.A.L,STEEL LTD., R/ O.ADMINISTRATIVE OFFICE, -3- 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY. BODAKDEV, AHEMADABAD-380 054. 11, SHRI.OULAM HUSSAIN MOHAMMED SHAIKH, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR, S.A.L.STEEL LTD.. R/O.3-B, MUSLIM SOCIETY, MITHAKALI, NAVARANGPURA, AHEMADABAD - 360 009. 12. SHRI. HARSHAD SHAH, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR, S.A.L.STEEL LTD., R/O.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 13, SHRI,JETHABAI M.SHAH, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR, S.A.L.STEEL LTD., R/O.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 14. SHRI.TEJPAL S.SHAH, AGE: MAJOR, 0CC: BUSINESS, DIRECTOR OF S.A.L.STEEL LTD., R/O.ADMINISTRATIVE OFFICE, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. 15, SHRI.UMESH YADAV, AGE: MAJOR, 0CC: BUSINESS, CHIEF CHEMIST & IN-CHARGE, HOSPET SECTION OF S.A.L.STEEL LIMITED, 9TH FLOOR, GNFC INFORMATION TOWER, SARKHAEJ, GANDHINAGAR HIGHWAY, BODAKDEV, AHEMADABAD-380 054. RESPONDENT$ (By Sri. K.L.PATIL: S.S.BETURMATH ADVs. FOR C/Ri> THIS CRP IS FILED UNDER SEC. 115 OF CPC., AGAINST THE JUDGMENT DATED:08-02-2010 PASSED IN O.S.N0.22/2009 ON THE FILE OF THE PRL. CIVIL JUDGE(SR.DN) & JMFC., HOSPET, ANSERING THE PRELIMINARY ISSUE NO.5 IN NEGATIVE. -4- This c. R. petition coming on for dictating orders this day, the Court made the following: ORDER This is a defendant’s revision petition questioning the order dated 08.02.2010 passed in O.S. No.22/2009 by the Pri. Civil Judge (Sr.Dn.) and JMFC, Hospet whereunder a finding on preliminary Issue No.5 regarding territorial jurisdiction has been answered in the negative and it has been held that Hospet Court has got territorial jurisdiction to try the suit. 2. Heard the learned advocates appearing for parties namely Sri Jayavittal Rao Kolar, learned Senior Counsel appearing for petitioner and Sri K.L.Patil, learned counsel appearing for respondents. 3. Petitioner is the defendant and respondent is the plaintiff before the trial court. The parties are referred to as per the ranks in the trial court. 4. It is contended by Mr.Kolar that trial court erred in holding that Civil Court at Hospet has got jurisdiction to try the suit when admittedly defendant is from the State of Gujarath and agreements to supply iron ore and all other terms and conditions of supply were incorporated in the purchase orders issued by the defendant which clearly stipulated that dispute if any was subject to courts at “Ahmedabad Only” and as such, he -5- I contends that finding of the trial court is erroneous on the question ofjurisdiction as envisaged in Section 20(c) of CPC. He would also contend that trial court erred in holding that PW-1 had never agreed to the Clauses 19(j) and 20 of purchase orders, only on the basis of oral evidence, ignoring the exclusion clauses found in the purchase orders which was in writing. He would also contend that trial court ignored to take note of the fact that despite Clauses 19(j) and 20 found on the back-side or the reverse side of the purchase orders, which came to be admitted by PW-1 and findings of the trial court that he had not signed the purchase orders and as such said clauses are not binding on him is an erroneous finding. He would also elaborate his submission by contending that trial court erred in not noticing the fact that defence set up by defendant was not that the court at Hospet had no jurisdiction at all, but the defence was that in view of the exclusion Clause 19(j) and 20 agreed to by parties, Court at Hospet had no jurisdiction and would submit that question of delivery at Hospet by plaintiff would not make any difference when parties had agreed to vest the jurisdiction in court at Ahmedabad and exclude the jurisdiction of Hospet Court. He would further contend that findings of the trial court that as per Ex.P-19 to Ex.P-1036 covering letters and cash memos reflected that the “disputes are subject to Hospet jurisdiction’ without considering that these documents are allt subsequent to Ex.P-1 to Ex.P-18 and therefore, had absolutely no bearing on the issue involved for determination. He would also submit by contending that reasonings given by trial court to hold preliminary issue No.5 in the negative are based mostly on inferences and presumptions and not on proper appreciation of documentary evidence tendered by defendants and contrary normal usage, custom/practice adopted in inter-state trade. He would also draw attention of the Court to plaint paragraphs 3 and 11 to contend that cause of action also arose at Ahmedabad and in the evidence of PW- 1, has admitted that goods were dispatched as per purchase orders and thus, plaintiff was deemed to have understood the contents of purchase orders and having supplied the materials pursuant to such purchase orders, it cannot be said that there is no cause of action at Ahmedabad and contends that two clauses 19j) and 20 are deemed to be concluded contracts as envisaged under Section 4 of the Indian Contract Act. 5. In support of his submissions, he has relied upon the following judgments: (a) AIR 1996 DELHI 92 MIS. PROGRESSIVE CONSTRUCTIONS LTD. Vs. BHARAT HYDRO POWER CORPORATION LTD. (b) AIR 1989SC 1239 ABC LAMINART PVT. LTD. AND ANOTHER Vs. AP AGENCIES SALEM -7- ‘(c AIR 2002 SC 2402 MIs. SHRIRAM CITY UNION FINANCE CORPORATION LTD.. Vs. RAMA MISHRA (d) A1R2004SC2154 NEW MOGA TRANSPORT COMPANY Vs. UNITED INDIA INSURANCE CO. LTD. AND ANOTHER (e) AIR 2004 SC 2432 M/s. HANIL ERA TEXTILES LTD.. Vs. M/S. PUROMATIC FILTERS (P) LTD. (f) AIR 2002 MAD 396 M/S. CONSOLIDATED AGENCIES Vs. M/S. GUJARAT CARBON AND INDUSTRIES LTD. AND ANOTHER (g) AIR 2008 SC 685 LAXMAN PRASAD Vs. PRODIGY ELECTRONICS AND ANOTHER (h) AIR 1977 BOM 298 VITHAL Vs. ANSABAI AND ANOTHER (I) (2010) 1 SCC 83 GRASIM INDUSTRIES LTD. AND ANOTEHR Vs. AGARWAL STEEL (j) (2009) 3 SCC 107 RAJASTHAN STATE ELECTRICITY BOARD Vs. UNIVERSAL PETROL CHEMICALS LIMITED. 6. Per con.trcz, Sri K.L. Patil. learned counsel appearing for plaintiff would submit that even prior to issuance of purchase orders, on the basis of oral instructions of the defendant and as is the practice, goods were supplied to defendant from Hospet and no part of cause of action arose at Ahmedabad. He would submit that cause of action for the suit is to be presumed or looked into by examining the plaint averments and when the defendant sets up a plea of ouster of -8- jurisdiction of the Court, burden is cast heavily on him to prove that Court of competent jurisdiction does not in fact has jurisdiction to try such a suit He would submit that defendant is having a Branch Office at Hospet. Officials of the defendants are at Hospet; they have interacted and co-ordinated with plaintiff at Hospet; offer is given to supply goods at Hospet; goods have been supplied from Hospet, goods have proceeded on delivery by road transport as well as by rail transport from Hospet and as such Civil court of Hospet does have jurisdiction and not the court of Ahmedabad. He would elaborate his submissions by further contending that when purchase order dated 25.05.2006 was issued as per Ex.P-1, immediately plaintiff brought to the notice of defendant that he is not agreeable to the terms and conditions stipulated by defendant including clauses now pressed into service and on the very same day, defendant through its Senior Assistant General Manager (Purchase), wrote a letter which came to be marked as Ex.P 1038 dated 25.05.2006, specifically assuring the plaintiff that this discussions held between plaintiff and representatives of the defendant at Hospet had been discussed at Ahmedabad Office and clarification was issued saying that the purchase orders are normally in a standard format and it was understood by the parties that clauses mentioned therein need not be given effect to by parties. It is contended that to substantiate this aspect, the Proprietor of the plaintiff Firm got himself examined as PW- I and he has explained the circumstances under which 1 came to be issued, as also queries raised by the plaintiff immediately thereunder and reply received from defendant dated 25.05.2005, Ex.P1038 would clearly go to show that parties never agreed upon such a condition which is now pressed into service and with regard to these two clauses being pressed into service, there was no meeting of minds between the parties and evidence tendered by plaintiff has remained unrehutted. Sri Paul would bring to the notice of this Court, cross-examination of plaintiff dated 05.01.2010 to substantiate that exclusion clause to oust the jurisdiction of Hospet court was not agreed to between the parties. He would submit that even otherwise as admitted by the learned counsel for defendant, the Court having jurisdiction cannot be ousted since under Clause (c) of Section 20 of CPC, the Civil Court has got jurisdiction to try the suit. 7. In support of his submissions, he has relied upon the following judgments: 1) 1996(3) KAR.L.J. 422 MIS. INSTRUMENTS INCORPORATED. BANGALORE Vs. MIS. INDUSTRIAL CABLES (INDIA) LIMITED, RAJPURA. PUNJAB AND ANOTHER 2) A1R1969SC1239 ABC LAMINART PVT. LTD. AND ANOTHER Vs. AP AGENCIES SALEM 3) AIR 1988 KERALA 36 - 10 - UNITED INDIA INS CO. LTD.. Vs. ASSOCIATED TRANSPORT CORPN. PVT. LTD AND ANOTHER 4) AIR1991KERALA41 THE SOUTH EASTERN ROADWAYS Vs. THE UNITED INDIA INSURANCE CO. LTD. AIR 1992 SC 1514 5) PATEL ROADWAYS LIMITED Vs. PRASAD TRADING COMPANY 6) AIR 1985 CALCUTTA 74 SREENIVAS PULVERISING INDUSTRIES Vs. JAI GLASS & CHEMICALS PVT. LTD. 7) AIR 2008 SC 685 LAXMAN PRASAD Vs. PRODIGY ELECTRONICS LTD. & ANR. 8) AIR196OSC13O9 STATE OF MADRAS Vs. C.P. AGENCIES 9) AIR1954SC236 CHATTURBHUJ VITHALDAS JASAN I Vs. MORESHWAR PARASHRAM AND OTHERS 10) 2010 (2) KCCR 1194 THE CHAIRMAN, THE INSTITUTION OF ENGINEERS (INDIA), BANGALORE AND OTHERS 11) AIR1997SC639 U.N,R. RAO Vs. M.SHANMUGAVEL 12) AIR2004SC 2432 M/s. HANIL ERA TEXTILES LTD., Vs. M/S. PUROMATIC FILTERS (P) LTD. 13) A1R2004SC2154 NEW MOGA TRANSPORT COMPANY Vs. UNITED INDIA INSURANCE CO. LTD. AND ANOTHER 14) AIR2006SC 1828 MAYAR (H.K.) LTD. & ORS. Vs. OWNERS & PARTIES, VESSEL M.V. FORTUNE EXPESS AND ORS. -11- 8. Having heard the learned advocates appearing for parties, following point would arise for my consideration: (a) Whether the trial court by order dated 0802.2010 has failed to exercise jurisdiction or exercised its jurisdiction not vested in it and acted illegally or with material irregularity calling for exercise of revisional jurisdiction by this Court? (b) What order? 9. The issue in this revision petition lies in a narrow compass which relates to exercise of jurisdiction by holding issue No.5 in the negative and consequently holding that suit filed by plaintiff in O.S. No.22/2009 is triable by the Court of Civil Judge (Sr.Dn.) and JMFC at Hospet. BRIEF FACTS OF THE CASE: 10. Plaintiff herein has instituted a suit O.S. No.22/2009 on the file of Prl. Civil Judge (Sr.Dn.) and JMFC, Hospet, seeking recovery of money in a sum of Rs.3,12,96,560=75 together with interest contending that plaintiff had supplied iron ore and defendants had not paid the amounts in respect of bills raised by him towards said supply. It is also contended that cheques issued by the defendants have been returned un-encashed and hence, a criminal case has been filed under the provisions of Negotiable Instruments Act and thus, suit for recovery of money came to be filed at Hospet Civil Court. Defendants before the trial court flied their detailed written statement denying the averments made in the plaint and inter alia plea regarding ouster of jurisdiction namely that the Pri. Civil Judge (Sr.Dn.) and JMFC Court, Hospet had no territorial jurisdiction to try the suit was also raised. On the basis of pleadings, issues came to be framed by the trial court on 22.01.2009 and it was also ordered by an order dated 22.12.2009 that issue No.5 is to be treated as a preliminary issue. Issue No.5 reads as under: Issue no.5: Whether the defendants prove that, this court has no territorial junsdiction to entertain the suit and suit is not maintainable? 11. Plaintiff got himself examined as PW- I and got marked Ex.P-1 to Ex.P-1098. The said witness was also cross-examined in extenso. Defendant did not lead its oral evidence, but got marked Ex.D-1 to Ex.D-62 through PW-1 in the cross examination. Trial court, on considering the pleadings and evidence of parties, by its order dated 08.02.2010 held issue No.5 in the negative by holding that Civil Court at Hospet has jurisdiction to try the suit, It is this order, which is questioned in the present Civil Revision Petition. 12. The contention of defendant that parties to the lis had entered into an agreement, to get the disputes resolved at Ahmedabad Court as per Clauses 19(j) and 20 of the purchase - 13 - orders (Ex.P-1 to Ex.P-80) and these two clauses being exclusion clauses, the Court at Hospet does not have jurisdiction and as such, it prayed that issue No.5 is to be held in the affirmative and not in the negative. In the background of the contentions raised by the parties, it would be necessary to extract relevant provision of law governing jurisdiction namely Section 20 of CPC and the two clauses which have been pressed into service by the learned advocates appearing for defendant. They read as under: SECTION 20 CPC: 20. Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business. or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. * ] omitted by Act No. 104 of 1976 ‘[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in [lndia] or, in 14 respect of any cause of action arising at any place where it has also a subordinate office, at such place. CLAUSE 19(J) & 20:- CLAUSE 19(J) “It is agreed that dispute arising in respect of this order shall be decided by competent court at Ahmedabad and shall be subject to jurisdiction of Ahmedabad Courts only.” CLAUSE 20: “It is agreed that dispute arising in respect of this order shall be decided by competent court at Ahmedabad and shall be subject to jurisdiction of Ahmedabad Courts only.” These two clauses are found on the reverse side of purchase orders which came to marked as Exhibit P.1 to P.18. It is these two clauses which has been pressed into service to contend all disputes between the parties are to be resolved by courts at Ahmedabad and Hospet court does not have jurisdiction to try the suit as agreed between the parties. 13. At this juncture, it would be of benefit to extract the law laid down by the Hon’ble Apex Court as also other High Courts including this Court, which are as under: (a) In the case of ABC LAMINART PVT. LTD. AND ANOTHER Vs. AP AGENCIES SALEM reported in AIR 1989 SC 1239 [Paras 7, 18]:- PARA 7: The first question to be decided, therefore, is whether Clause 11 as aforesaid formed part of the agreement. Mr. Javali submits that Ext. B-i is an order of confirmation No.68/59 dated 2.10.1974 from the Sales 4- - 15 - Executive for the first appellant to the respondent acknowledging the receipt of their order and registering the same subject to the terms and conditions t overleaV. The general terms and conditions printed overleaf included the aforesaid Clause 11. We are unable to agree. Admittedly the parties have transacted the business on inter alia basis of Clause 11. There is. therefore, no escape from the conclusion that Clause 11 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 not open to the respondent to deny existence of Clause 11. The submission of Mr. Javali has, therefore, to be rejected. PARA 18: In Hakam Sinqh v. M/s. Gammon (India) Ltd. [1971] 3 S.C.R. 3 14 where the appellant agreed to do certain construction work or the respondent who had its principal place of business at Bombay on the terms and conditions of a written tender. Clause 12 of the tender provided for arbitration in case of dispute. Clause 13 provided that notwithstanding the place where the work under the contract was to be executed the contract shall be deemed to have been entered into by the parties at Bombay, and the Court in Bombay alone shall have jurisdiction to adjudicate upon. On dispute arising between the parties the appellant submitted a petition to the Court at Varanasi for an order under section 20 of the Arbitration Act, 1940 that the agreement be filed and an order of reference be made to an arbitrator or arbitrators appointed by the Court. The respondent contended that in view of the Clause 13 of the arbitration agreement only the Courts at Bombay had jurisdiction. The Trial Court also held that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the Courts at - 16 - Bombay which they did not otherwise possess. The High Court in revision held that the Courts at Bombay had jurisdiction under the general law and hence could entertain the petition and that in view of Clause 13 of the arbitration agreement the petition could not be entertained at Varanasi and directed the petition to be returned for presentation to the proper Court. On appeal therefrom one of the questions that fell for consideration of this Court was whether the Courts at Bombay alone had jurisdiction over the dispute. It was held that the Code of Civil Procedure in its entirety applied to proceedings under the Arbitration Act by virtue of section 41 of that Act. The jurisdiction of the Court under the Arbitration Act to entertain a proceeding for filing an award was accordingly governed by the provisions of the Code of Civil Procedure. By the terms of section 20(a) of the Code of Civil Procedure read with explanation 11 thereto the respondent company which had its principal place of business at Bombay was liable to be sued at Bombay. It was held that it was not open to the parties to agreement to confer by their agreement jurisdiction on a Court, which did not possess under the Code. But where two Courts or more have under the Code of Civil Procedure jurisdiction to try the suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts was not contrary to public policy and such an agreement did not contravene section 28 of the Contract Act. Though this case arose out of an arbitration agreement there is no reason why the same rule should not apply to other agreements in so far as jurisdiction is concerned. Without referring to this decision a Division Bench of the Madras High Court in Nanak Chand v. T.T. Elect Supply Co., A.I.R. 1975 Madras 11103 observed that competency of a Court to try an action goes to the root of - 17 - the matter and when such competency is not found, it has no jurisdiction at all to try the case. But objection based on jurisdiction is a matter which parties could waive and it is in this sense if such jurisdiction is exercised by Courts it does not go to the core of it so as to make the resultant judgment a nullity. Thus it is now a settled principle that 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 there within , 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. If such a contract is clear, unambiguous and explicit and not vague it is not hit by sections 23 and 28 of the Contract Act. This can not be understood as parties contracting against the Statute. Mercantile Law and Practice permit such agreements. (b) In the case of M/s. SHRIRAM CITY UNION FINANCE CORPORATION LTD., Vs. RAMA MISHRA reported in AIR 2002 SC 2402 [Para 9] “9. In the present case the impugned order of the High Court and the order passed by the appellate Court arises out of the order passed by the Civil Judge, Bhubaneshwar, We have to keep in mind there is difference between the inherent lack of jurisdiction of any Court on account of some statute and the other where parties through agreement bind themselves to have their dispute decided by any one of the court having jurisdiction. Thus, the question is not whether Orissa Courts have the jurisdiction to decide respondenfs suit but whether the respondent t could have invoked the jurisdiction of that Court in view of the aforesaid Cl.34, A - 18 - party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy. It is open for a party for his convenience to fix the jurisdiction of any competent court to have their dispute adjudicated by that Court atone. In other words if one or more Court has the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent Courts to decide their disputes. In case parties under their own agreement expressly agrees that their dispute shall be tried by only one of them then the party can only file the suit in that Court alone to which they have so agreed. In the present case as we have said