TMI Blog2007 (4) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... d the respondent No. 8 are closely related to each other. In terms of both the contracts raw materials were to be delivered at the factory of the first respondent situate at Kagajnagar in the State of Assam. However, disputes and grievances are primarily concerned with the contract between the petitioners and the respondent No. 1, because of, amongst others, linking with earlier contract. The first respondent invited tender to conclude contract with petitioner No. 1 and in response to this invitation first writ petitioner placed offers for supply of the required quantity of bamboo sticks and to be effected at the said factory site. On receipt of this offer of the first writ petitioner the first respondent placed work order in writing stipulating various terms and conditions and also adopting few of the terms and conditions contained in the tender document. The said work order was accepted by the first writ petitioner and thereafter a formal bilateral agreement was entered into by the first writ petitioner and first respondent. Pursuant to the condition of the tender document and the work order the first writ petitioner deposited security at the rate of ₹ 20/- per metric ton. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls Unit of the respondent No. 12 at Assam outside the aforesaid jurisdiction of this Hon'ble Court. In paragraph 24 of the writ petition it is specifically stated that the said agreement as per Clause 17 of the work order was executed on behalf of the petitioner No. 1 at 40, Strand Road, Kolkata- 700 001 with the territorial jurisdiction of this Hon'ble Court. In paragraph 8 it is claimed that the work order was accepted by Kishore Saboo, proforma respondent No. 8, on behalf of the petitioner at the office situate at 40, Strand Road, Kolkata within the territorial jurisdiction. 3. In the affidavit-in-opposition the contesting respondents have specifically averred that no part of cause of action had arisen within the territorial limit of this Hon'ble Court. It is alleged that the contract was executed at the factory site of the first respondent in the State of Assam. In terms of the contract the payments were to be made and indeed were made at a branch of a nationalized bank at Nagaon Paper Mill, Kagajnagar. The work order was handed over and accepted by the writ petitioners at Kagajnagar in the State of Assam. The contract was terminated at Kagajnagar. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within the territorial jurisdiction of this Hon'ble Court. Therefore, according to him, the place of business of the first respondent is good enough to invoke the writ jurisdiction if one reads Article 226 clauses (1) and (2) carefully. He submits that originally before amendment of the Constitution in 1963 the writ petition could only be filed in a Court within whose territorial jurisdiction the seat of the respondents located but thereafter the Constitution was amended incorporating Clause (la) whereby and whereunder appropriate High Courts within whose territorial jurisdiction whole or part of cause of action arises were conferred with jurisdiction. Thereafter, this Clause (la) was deleted by the subsequent amendment and by consolidating the Clause (2) of the said Article. 7. According to him, the writ petition at present can be filed in two Courts viz. either in one within whose territorial jurisdiction the seat of the State situates or the person resides and also in the Court within whose jurisdiction whole or part of cause of action arises. He contends in support of his document that this would be clear from the Division Bench judgment of this Court rendered in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken place between the respondent company and the writ petitioners at its branch at Kagajnagar in the State of Assam. From the head office tender document was supplied merely and nothing else and it is settled law that if the office and/or place of business of the respondent has no nexus and relation with the transaction within the meaning of Article 226 of the Constitution of India for the purpose of jurisdiction. When no part of cause of action has arisen within the jurisdiction of this Hon'ble Court and further the effective place of business of respondent in connection with transaction does not situate within the territorial limit of this Hon'ble Court the writ petition cannot be entertained. Besides, he contends, in the agreement there is forum selection clause whereby and whereunder parties agreed that all the proceedings must be brought before the Appropriate Court situates in the State of Assam. In support of his contention he has relied on the following decisions , and . 10. It appears upon considering the submissions of the respective learned Counsel and also the facts of the case that the issue of jurisdiction in this case is related to the following question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of Section 28 of the Contract Act. This provision does not envisage, in our view, recognition and acceptance of contracting out of the provision of Article 226 of the Constitution of India. Thus, we are unable to subscribe the contention raised by Mr. Chatterjee that forum selection clause operates as a bar to entertain writ petition by this Court. Therefore, findings of the learned Trial Judge to that extent is not accepted by this Court and the same is patently erroneous on fact and in law. This view of the learned Trial Judge is accordingly negatived by this Court. 13. Now coming to the question of accrual of cause of action whether whole or part has arisen within the jurisdiction of this Hon'ble Court, we find in paragraph 45 of the writ petition, it has been specifically stated how the cause of action has accrued within the jurisdiction of this Court on fact. This fact has been denied in the affidavit-in-opposition emphatically and it is stated, on the other hand, that this whole cause of action has accrued in the State of Assam. Therefore, we have no option but to look into the document. The petitioner has stated that agreement has been entered into at 40, Strand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque and obviously upon encashment and/or clearance of the cheque the payment is effected, not by mere issuance the same. Collection of proceeds upon cheque being deposited by the banker of the drawee qua agent, from the banker of the drawer is also payment. If payment in a case of this nature is taken to be part of cause of action, then the place of collection of the value of the cheque is relevant for deciding the situs of the Court. It is further contended that the notice which is under challenge was received by the writ petitioners at its office situates within the jurisdiction of this Hon'ble Court. Such statement is denied and disputed on oath. Rather it is stated specifically that it was received by authorized representative of the writ petitioner at Kagajnagar in the State of Assam. The petitioner has failed to prove adducing any cogent evidence that this impugned notice was received at Kolkata. Under such circumstances, we are unable to accept the contention of Mr. Mukherjee that part of cause of action has arisen within the jurisdiction of this Court on the plea as averred. We, therefore, approve the findings of the learned Single Judge that no part of cause of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs etc., for the enforcement of any of the rights conferred by Part III and for any other purpose. So there is no room for doubt that exercise of jurisdiction of the High Court under Article 226 was depending upon the seat for the respondents within its territory. Going by the aforesaid provision which stood before amendment the Supreme Court has explained in the case of Election Commission v. Saka Venkata Subba Rao reported in 1953 SCR 1144 and in the subsequent cases of Khajor Singh v. Union of India and Collector of Customs v. E. I. Commercial Co. that place of office and/or residence of the respondents was the only factor for invocation of the jurisdiction of Article 226. Taking note of the aforesaid judicial pronouncement the Constitution was amended as correctly contended by Mr. Mukherjee by the 15th Amendment Act, 1963 incorporating Clause (1A) and thereafter this Clause (1A) and Clause (2) stood consolidated and renumbered as Clause (2) by 42nd Amendment. It appears to us that the text of previous Clause (1A) of Article 226 and the language impa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of Article 226 can be contracted out under the provision of Section 28 of the Contract Act is not sustainable in law as we have observed that provision of Article 226 is a Constitutional provision and it cannot be contracted out by the act of the parties. The said judgment is not a good law as far as contracting out the provision of Article 226 of the Constitution of India is concerned. It is now firmly settled that this provision is one part of basic structure of the Constitution and it is inviolable even by the Parliament, not to speak of private individual. 22. All other decisions cited by Mr. Chatterjee rendered in case of Kusum Ingots and Alloys Ltd. v. Union of India and Anr. has dealt with the question of accrual of causes of action for attracting jurisdiction of the High Court under Article 226. Rather in paragraphs 10, 25 and 30 of this judgment it is made clear that the theory of forum convenience can be made applicable in case of accrual of part of cause of action in the writ jurisdiction also. It is held in that case that if a small part of cause of action arises within the territorial jurisdiction of one particular High Court the same by itself may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the only High Court which was jurisdiction with respect to the Central Government is the Punjab High Court. The effect of the said amendment is that it made the accrual of cause of action an additional ground to confer jurisdiction to a High Court under Article 226. Thus, after insertion of Clause (2) the legal position is that a writ can be issued by a High Court against a person. Government or authority residing within the jurisdiction of that High Court or with whose jurisdiction the cause of action in whole or in part arises. 27. Even though the registered office of the company was at Ludhiana, a petition was filed in this High Court on the ground that the company had its branch office there, and ex parte ad interim relief was obtained by the petitioner. Vacating the ad interim relief it was held in Union of India v. Oswal Industries that having regard to the fact that the registered office of the Company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be filed either in the High Court of Punjab Haryana or in the Delhi High Court. The petitioners, however, have cho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
