TMI Blog1979 (3) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... urrage and other amounts due to the default of the defendants as specified in the plaint. The defendant while denying the plaintiff's claim has alleged that the court at Keonjhar has no territorial jurisdiction to try this suit as no part of the cause of action arose within the jurisdiction of this Court and the plaintiff had entered into an agreement with the defendant to the effect that ell disputes between the parties arising out of the said contract would be settled in Calcutta or by the courts in Calcutta. 3. After the filing of the written statement and framing of the issues in the suit, on the petition of the defendant, the court below took up for decision the issue No. 2 namely: Has this Court jurisdiction to try the suit? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orissa 167); and AIR 1979 Mad 16 and 21). According to the defendant, petitioner herein, both the parties had agreed that the jurisdiction for determination of any dispute arising out of the contract between the parties would be only in Calcutta whereas the plaintiff contends that there was no such contract of agreement between them. 6. The defendant in support of his assertion to the above effect depends only on Exts. C and B. At the top of Ext. C, the purchase order dated 1-11-71, it is printed All subject to Calcutta jurisdiction. The purchase order Ss typed in defendant's own letterhead and issued by the defendant, and it has not been signed by the plaintiff. By the mere recital of the said words at the top of Ext. C and by se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in AIR 1963 Guj 148. That decision was given entirely on different context and facts, which is evident from what Is stated and held in the following passage extracted from that judgment (at p. 149):-- (3) When one of the parties to a contract signs a printed form printed by the other party containing the words subject to the jurisdiction of a place Q and sends the order form to the other party it must be assumed that the party agreed that Q is the place for the settlement of disputes. It is not open to a person who signs an order form of the opposite party containing the printed words to say that the printed words are not part of the contract. To take the view taken by the learned Judge of the Madras High Court would be to ups ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before me the letterhead on which the purchase order Ext. C was typed had been printed by the defendant and he only signed and sent the same to the plaintiff for supply of certain materials. So all the contents id Ext, C emanated from the defendant and the plaintiff had not in any manner appended its approval or assent to any part of it. Rather very soon after the latter received Ext. C, on 2-11-71 it sent its own terms of business as contained in Ext. A to the defendant, which indicates that the defendant's order was accepted or intended to be accepted only on the terms and conditions stated in Ext. A. Clause 22 of Ext. A is as follows:-- Clause 22 -- All contracts to which the corporation's Terms of Business and General unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of the plaintiff was posted in the Calcutta R. M. S. Post Office on 8-11-71. Merely on the proof of the said certificate of posting, it is extremely difficult to hold that the original of the letter Ext. B was actually sent to the plaintiff on that date. No doubt, the court Under Section 114 of the Evidence Act may presume that the common course of business has been followed in particular cases and so if it is proved that a particular letter was posted on the address of a particular person it may be presumed that the letter was received at the other end. In this case Ext. B/1 does not indicate whether the letter posted to the plaintiff under that certificate of posting was an envelope, inland letter or a postcard. Ext. B is on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even the rebuttable presumption Under Section 114 of the Evidence Act cannot be drawn. In this connection, the decisions reported in AIR 1978 Cal 123 and AIR 1971 Ker 231 should be seen. Moreover it is seen that there is absolutely no mention about the said alleged letter or at least the effect thereof in the written statement. As the defendant takes his stand on the question of jurisdiction of the court on the posting of the original of Ext B he should have, as provided Under Rule 6 Rule 9 C.P.C. mentioned about that letter or at least referred briefly to the effect thereof in his written statement, as the contents of the alleged letter were material and the said materiel facts were capable of being evidenced by a document as alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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