TMI Blog2013 (7) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... iction” is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. - Civil Appeal No. 5086 of 2013 (Arising out of SLP(C) No. 5595 of 2012) - - - Dated:- 3-7-2013 - R. M. Lodha, Kurian Joseph And Madan B. Lokur, JJ. JUDGMENT R. M. Lodha, J. Leave granted. 2. The short question that arises for consideration in this appeal by special leave is, whether, in view of clause 18 of the consignment agency agreement (for short, agreement ) dated 13.10.2002, the Calcutta High Court has exclusive jurisdiction in respect of the application made by the appellant under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, '1996 Act ). 3. The above question arises in this way. The IBP Company Limited, which has now merged with the respondent-Indian Oil Corporation Limited, hereinafter referred to as the company , was engaged in the business of storage, distribution of petroleum products and also manufacturing and marketin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement has been made subject to jurisdiction of the courts at Kolkata and, therefore, Rajasthan High Court lacks the territorial jurisdiction in dealing with the application under Section 11. 9. In the course of hearing before the designate Judge, two judgments of this Court, one A.B.C. Laminart [(1989) 2 SCC 163 ] and the other Rajasthan State Electricity Board [(2009) 3 SCC 107 ] were cited. The designated Judge applied A.B.C. Laminart (1989) 2 SCC 163 and held that Rajasthan High Court did not have any territorial jurisdiction to entertain the application under Section 11 and dismissed the same while giving liberty to the appellant to file the arbitration application in the Calcutta High Court. It is from this order that the present appeal by special leave has arisen. 10. We have heard Mr. Uday Gupta, learned counsel for the appellant and Mr. Sidharth Luthra, learned Additional Solicitor General for the company. Learned Additional Solicitor General and learned counsel for the appellant have cited many decisions of this Court in support of their respective arguments. Before we refer to these decisions, it is apposite that we refer to the two clauses of the agreement which dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipur and (ix) the disputes arose at Jaipur. The learned counsel for the appellant would submit that since part of the cause of action has arisen within the jurisdiction of the courts at Jaipur and clause 18 does not expressly oust the jurisdiction of other courts, Rajasthan High Court had territorial jurisdiction to try and entertain the petition under Section 11 of the 1996 Act. He vehemently contended that clause 18 of the agreement cannot be construed as an ouster clause because the words like, alone , only , exclusive and exclusive jurisdiction have not been used in the clause. 13. On the other hand, the learned Additional Solicitor General for the company stoutly defended the view of the designate Judge that from clause 18 of the agreement, it was apparent that the parties intended to exclude jurisdiction of all courts other than the courts at Kolkata. 14. Hakam Singh [(1971) 1 SCC 286 ] is one of the earlier cases of this Court wherein this Court highlighted that where two Courts have territorial jurisdiction to try the dispute between the parties and the parties have agreed that dispute should be tried by only one of them, the court mentioned in the agreement shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unius est exclusio alterius expression of one is the exclusion of another may be applied. What is an appropriate case 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 specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. Then, in paragraph 22(pg. 176) of the Report, this Court held as under: ..We have already seen that making of the contract was a part of the cause of action and a suit on a contract therefore could be filed at the place where it was made. Thus Kaira Court would even otherwise have had jurisdiction. The bobbins of metallic yarn were delivered at the address of the respondent at Salem which, therefore, would provide the connecting factor for court at Salem to have jurisdiction. If out of the two jurisdictions one was excluded by clause 11 it would not absolutely oust the jurisdiction of the court and, therefore, would not be void against public policy and would not violate Sections 23 and 28 of the Contract Act. The question then is whether it can be construed to have exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the endorsement Subject to Anand jurisdiction it excluded the jurisdiction of all other courts who were otherwise competent to entertain the suit. The view taken by us finds support from a decision of this Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem. 18. The question under consideration in Angile Insulations[(1995) 4 SCC 153 ] was whether the court of subordinate judge, Dhanbad possessed the jurisdiction to entertain and hear the suit filed by the appellant for recovery of certain amounts due from the first respondent. Clause 21 of the agreement therein read, This work order is issued subject to the jurisdiction of the High Court situated in Banglaore in the State of Karnataka .. . This Court relied upon A.B.C. Laminart(1989) 2 SCC 163 and held that having regard to clause 21 of the work order which was legal and valid, the parties had agreed to vest the jurisdiction of the court situated within the territorial limit of High Court of Karnataka and, therefore, the court of subordinate judge, Dhanbad in Bihar did not have jurisdiction to entertain the suit filed by the appellant therein. 19. Likewise, in Shriram City[(2002) 9 SCC 613 ], the legal position stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995) 4 SCC 153 , it was held in paragraph 9 (pg. 676) of the Report as under: Clause 17 says any legal proceedings arising out of the order shall be subject to the jurisdiction of the courts in Mumbai. This clause is no doubt not qualified by the words like alone , only or exclusively . Therefore, what is to be seen is whether in the facts and circumstances of the present case, it can be inferred that the jurisdiction of all other courts except courts in Mumbai is excluded. Having regard to the fact that the order was placed by the defendant at Bombay, the said order was accepted by the branch office of the plaintiff at Bombay, the advance payment was made by the defendant at Bombay, and as per the plaintiff's case the final payment was to be made at Bombay, there was a clear intention to confine the jurisdiction of the courts in Bombay to the exclusion of all other courts. The Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit. 21. In New Moga Transport [(2004) 4 SCC 677 ], the question that fell for consideration before this Court was whether the High Court s conclusion that the civil court at Barnala had jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter. The trial court having held that it had no territorial jurisdiction to try the suit, the High Court should have gone deeper into the matter and until a clear finding was recorded that the court had territorial jurisdiction to try the suit, no injunction could have been granted in favour of the plaintiff by making rather a general remark that the plaintiff has an arguable case that he did not consciously agree to the exclusion of the jurisdiction of the court. 23. In Harshad Chiman Lal Modi[(2005) 7 SCC 791 ], the clause of the plot buyer agreement read, Delhi High Court or courts subordinate to it, alone shall have jurisdiction in all matters arising out of, touching and/or concerning this transaction. This Court held that the suit related to specific performance of the contract and possession of immovable property and the only competent court to try such suit was the court where the property was situate and no other court. Since the property was not situated in Delhi, the Delhi Court had no jurisdiction though the agreement provided for jurisdiction of the court at Delhi. This Court found that the agreement conferring jurisdiction on a court not having jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case also. There is indeed an ouster clause used in the aforesaid stipulations stating that the courts at Jaipur alone would have jurisdiction to try and decide the said proceedings which could be initiated for adjudication and deciding the disputes arising between the parties with or in relation to the aforesaid agreements through the process of arbitration. In other words, even though otherwise the courts at Calcutta would have territorial jurisdiction to try and decide such disputes, but in view of the ouster clause it is only the courts at Jaipur which would have jurisdiction to entertain such proceeding. Then, in paragraph 35 (pg. 116) of the Report, the Court held as under: 35. The parties have clearly stipulated and agreed that no other court, but only the court at Jaipur will have jurisdiction to try and decide the proceedings arising out of the said agreements, and therefore, it is the civil court at Jaipur which would alone have jurisdiction to try and decide such issue and that is the court which is competent to entertain such proceedings. The said court being competent to entertain such proceedings, the said court at Jaipur alone would have jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Court was that the ticket related to travel from Delhi to Hyderabad. The complaint was in regard to delay at Delhi and, therefore, the cause of action arose at Delhi and that as contract provided that the courts at Delhi only will have jurisdiction, the jurisdiction of other courts was ousted. This Court in paragraph 22 (pgs. 476-477) of the Report held as under : 22. As per the principle laid down in A.B.C. Laminart [(1989) 2 SCC 163], any clause which ousts the jurisdiction of all courts having jurisdiction and conferring jurisdiction on a court not otherwise having jurisdiction would be invalid. It is now well settled that the parties cannot by agreement confer jurisdiction on a court which does not have jurisdiction; and that only where two or more courts have the jurisdiction to try a suit or proceeding, an agreement that the disputes shall be tried in one of such courts is not contrary to public policy. The ouster of jurisdiction of some courts is permissible so long as the court on which exclusive jurisdiction is conferred, had jurisdiction. If the clause had been made to apply only where a part of cause of action accrued in Delhi, it would have been valid. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction relating to the application under Section 11, besides the above legislative provisions, Section 20 of the Code is relevant. Section 20 of the Code states that subject to the limitations provided in Sections 15 to 19, every suit shall be instituted in a 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 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. The explanation appended to Section 20 clarifies that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the public policy. It does not offend Section 28 of the Contract Act in any manner. 32. The above view finds support from the decisions of this Court in Hakam Singh (1971) 1 SCC 286 , A.B.C. Laminart(1989) 2 SCC 163, R.S.D.V. Finance;(1993) 2 SCC 130, Angile Insulations (1995) 4 SCC 153, Shriram City (2002) 9 SCC 613, Hanil Era Textiles (2004) 4 SCC 671 and Balaji Coke (2009) 9 SCC 403. 33. In view of the above, we answer the question in the affirmative and hold that the impugned order does not suffer from any error of law. 34. Civil appeal is, accordingly, dismissed with no order as to costs. The appellant shall be at liberty to pursue its remedy under Section 11 of the 1996 Act in the Calcutta High Court. Madan B. Lokur, J. 1. Leave granted. 2. While I agree with the conclusion arrived at by my learned Brother Justice Lodha, this judgment has been penned down to raise the question is it really necessary for this Court to repeatedly affirm the legal position ad nauseam? I believe the law on the subject is well settled and it is to nobody s advantage if the same law is affirmed many times over. 3. The clause in the agreement that is sought to be interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the jurisdiction of the above court only. (emphasis given) It was held that only the courts in Karnataka and not Dhanbad had jurisdiction over the subject matter of dispute. 4. New Moga Transport Co. v. United India Insurance Co. Ltd., (2004) 4 SCC 677: The court at head office city [Udaipur] shall only be the jurisdiction in respect of all claims and matters arising under the consignment at the goods entrusted for transport. (emphasis given) It was held that only the courts in Udaipur and not Barnala had jurisdiction over the subject matter of dispute. 5. Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia, (2005) 10 SCC 704: Dispute under this contract shall be decided by the court of Bombay and no other courts. (emphasis given) It was held that only the courts in Bombay and not Calcutta had jurisdiction over the subject matter of dispute. 6. Rajasthan State Electricity Board v. Universal Petrol Chemicals Limited, (2009) 3 SCC 107: The contract shall for all purposes be construed according to the laws of India and subject to jurisdiction only at Jaipur in Rajasthan courts only. (emphasis given) It was held that only the courts in Jaipur and not Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to Anand jurisdiction. 16. Proceedings were initiated by the appellant in the Ordinary Original Civil Jurisdiction of the Bombay High Court. The respondent questioned the jurisdiction of the Bombay High Court in view of the exclusion clause. The learned Single Judge held that the Bombay High Court had jurisdiction to entertain the proceedings. However, the Division Bench of the High Court took the view that the Bombay High Court had no jurisdiction in the matter and accordingly dismissed the proceedings. 17. In appeal, this Court noted in paragraph 9 of the Report that the endorsement Subject to Anand jurisdiction had been made unilaterally by the respondent. Accordingly, there was no agreement between the parties to exclude the jurisdiction of the Bombay High Court. Clearly, this decision turned on its own special facts. 18. In Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., (2004) 4 SCC 671 the exclusion clause read as follows: Any legal proceeding arising out of the order shall be subject to the jurisdiction of the courts in Mumbai. 19. On a dispute having arisen, proceedings were instituted by the respondent in the Courts in Delhi. This was objected to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of this agreement shall be filed and referred to the courts in Calcutta for the purpose of jurisdiction. 24. Proceedings were initiated by the respondent in Bhubaneswar (Odisha). An objection was taken by the appellant that the Court in Bhubaneswar had no jurisdiction to entertain the proceedings. However, the objection was not accepted by the Trial Judge, Bhubaneswar. In appeal, the District Judge accepted the contention - of the appellant that only the Courts in Kolkata had jurisdiction in the matter. In a Civil Revision Petition filed before the Orissa High Court by the respondent, the order passed by the Trial Court was affirmed with the result that it was held that notwithstanding the exclusion clause, the Civil Judge, Bhubaneswar (Odisha) had jurisdiction to entertain the proceedings. 25. In the Civil Appeal filed by the appellant in this Court, it was held that the exclusion clause left no room for doubt that the parties expressly agreed that legal proceedings shall be instituted only in the Courts in Kolkata. It was also held that the parties had agreed that the Courts in Kolkata alone would have jurisdiction in the matter and therefore, the Civil Court, Bhubanes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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