TMI Blog2018 (12) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 - - - Dated:- 9-8-2018 - MRS. MOUSHUMI BHATTACHARYA, J. For The Plaintiff : Mr. Ashok Kumar Singh, Adv., Mr. Anuj Singh, Adv., Mr. S.E. Hunda, Adv. And Mr. Amrin Khatoon, Adv. For The Defendant : Mr. Ratnanko Banerji, Sr. Adv., Mr. Swatarup Banerjee, Adv., Mr. Rohit Mukherji, Adv. And Mr. Sayon Ganguly, Adv. ORDER 1. This is an application for revocation of leave under Clause 12 of the Letters Patent, 1865, and for rejection of the plaint filed in the suit. The suit was filed in May 2016 for non-realisation of dues in respect of invoices raised for supplies made by the plaintiff to the defendants under purchase orders issued by the latter. 2. The defendant's case is that no part of the cause of action has arisen from within the jurisdiction of this Court which would be evident from the following:- * The purchase orders issued by the defendant were addressed to the plaintiff at the plaintiffs' offices located in the States of Chhattisgarh and Maharashtra and were received at those places. * The supplies were made by the plaintiff in Andhra Pradesh, Assam, Chhattisgarh, Karnataka and other states outside West Bengal. * The invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act. Counsel finally relies on the balance of convenience aspect in that both the purchase orders and invoices were issued from and received outside the jurisdiction of this Court and the goods forming the subject matter of the dispute were also delivered by the plaintiff to the defendant outside the State of West Bengal. Counsel submits that the forum selection clause, agreed to by the parties and unambiguously stated in the invoices, has been suppressed in the plaint. 5. Mr. Anuj Singh, counsel for the plaintiff submits that the arrangement between the parties did not fructify into a concluded contract. Counsel puts the onus on the defendant to retract from the forum selection clause in the invoices (issued by the plaintiff) and contends that in failing to do so, the contract remained unconfirmed. He stresses that there was no meeting of mind in that the parties never agreed to be bound by an exclusive jurisdiction clause ousting the jurisdiction of all other Courts. Counsel relies on an oral agreement being entered into between the parties at its registered office within jurisdiction and payments having been made - and accepted- at the plaintiff's bank within the jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he finding that there was no meeting of mind between the parties to show a concluded bargain. There cannot be any contrary view to the principle laid down in S. Vanathan Muthuraj v. Ramalingam Alias Krishnamurti Gurukkal [1997] 6 SCC 143 which was a decision on the assumption of jurisdiction of civil courts to try all suits under section 9 of the CPC unless specifically barred except that it has little relevance to the case in hand. Since Hakam Singh has provided the basis in several of these cases, paragraphs 17 and 18, of the said decision set out below, should be seen in context; (17) When there is choice of forum, it is certainly open to the parties to agree on an exclusive forum for settlement of disputes. But such an agreement must be clearly spelled out either by express words or by necessary implication. Ouster of jurisdiction of Courts cannot be lightly assumed or presumed. If there is such a concluded agreement, it will certainly operate as estoppel against the parties to the contract. If it is merely a unilateral affirmation or statement made by one of the parties, as long as it is not shown that the statement has been accepted by the other party as a term or condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be held to be sacrosanct, cannot be faulted on logic, but what Hakam Singh also qualifies is that consensus can be gleaned from the acceptance or consent by a party who received the clause selecting the forum. In other words, parties must show by conduct or by 'some other material' that they intend to give effect to such clause. This qualification is what the instant matter rests on. The plaintiff supplied the goods and demanded payment through invoices by putting in the clause subject to Raipur/Nagpur jurisdiction only , the defendant made payment to the plaintiff (thereby accepting the forum-selection) and the plaintiff credited the payment to its bank account. Hence the reasonable window provided in Hakam Singh to instances of acceptance without a careful reading of the printed form, is not the case here at all. In any event, in all the cases, the party seeking to resile from the clause was at the receiving end - literally - of the ouster clause. In this case, it is the plaintiff who chose Raipur/Nagpur and filed the suit in the Calcutta High Court. 8. The principle can be simplified thus; parties can be bound to an agreement containing a clause conferring exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1996, where the respondent in the application took the plea that the Court in which such application was filed lacked territorial jurisdiction in view of the underlying agreement being subjected to the jurisdiction of the Courts at Kolkata. 11. The principle which emerges from the above decisions is that where parties have agreed to confer exclusive jurisdiction to a Court located at a particular place, the intention of the parties to exclude all other Courts must be given primacy. An exception to this would be where one of the parties to the agreement pleads ignorance of the clause or proves by conduct supported by evidence that the clause was an unilateral addition to the agreement by one party only and not affirmed by the other. The other exception would be where despite both parties agreeing to confer exclusive jurisdiction on certain Courts, filing or continuing proceedings in the Court agreed upon would either be oppressive or cause insurmountable inconvenience to either of the parties. A third exception can also arise from sheer practicality and common sense; where the evidence forming the basis of the dispute and the witnesses who would bring that evidence to light ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to modify the forum selection clause by a subsequent agreement. In pursuance of the agreement, the plaintiff not only supplied the goods at various places in Andhra Pradesh, Assam, Chattisgarh, Karnataka and other states outside West Bengal, but also proceeded to issue invoices from its offices located at Nagpur and Raipur. There is also no averment that the plaintiff, being unhappy with the forum selection clause or otherwise, returned the payments received from the defendants for supply of goods. In this context, Mr. Singh has argued that money was accepted and credited to the account of the plaintiff for the goods supplied. If this true, then what is the oral agreement on which the plaint rests? And what is the cause of action in the suit for which the plaintiff has claimed a decree for ₹ 1,30,42,129/? The plaintiff admittedly instituted the suit in this Court by seeking and obtaining leave under Clause 12 of the Letters Patent on the basis of the oral agreement entered into between the parties within the jurisdiction of this Court and for payment having been received in the bank account of the plaintiff maintained at IDBI Bank, Park Street Branch within the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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