JUDGMENT
Mukundakam Sharma, J.
1. The present suit is instituted by the
plaintiff for recovery for a sum of Rs. 1,16,558.50,
that is, Rs. 78,776/- on account of principal and
Rs. 37,812.50 on account of interest up to 19th
January, 1986 at 18 per annum along with pendente
lite and future interest and costs.
2. It is stated in the plaint that as
against the Purchase Order dated 26th September,
1981, placed by Senior Accounts Officer,
Construction Accounts Cell, U.P. State Electricity
Board on the plaintiff Company at its registered
office at New Delhi, the plaintiff/Company supplied
certain goods to the defendant and, therefore, the
plaintiff was entitled to receive the value of the
said goods of an amount of Rs, 78,776/- which was
not paid by the defendant in spite of notice and,
therefore, the present suit was instituted seeking
for recovery of the aforesaid amount.
3. The defendant contested the suit by
filing a written statement and one of the
contentions raised in the written statement was
that this Court does not have territorial
jurisdiction to entertain the present suit as an
appropriate suit should have been filed and
instituted in the appropriate Civil Court under the
jurisdiction of the Allahabad High Court. In view
of the aforesaid pleadings of the parties, an issue
was framed by this Court while framing issues and
Issue No. 2 reads as follows :-
2. Whether this Court has no
jurisdiction to try this suit?
Although several other issues were framed
and evidence was led by the parties thereto, it may
not be necessary for me to discuss and deal with
the other issues framed in the suit as the present
suit could be disposed of on the issue of the
jurisdiction alone.
4. Issues No. 2
The parties adduced evidence in respect
of the aforesaid issue as well. The plaintiff
altogether examined two witnesses. Shri B.P. Chand
was examined as PW-1 and Shri O.P. Bhatia was
examined as PW-2. So far the first witness is
concerned, namely PW-1, he did not deal with the
aspect of jurisdiction at all. PW-1 examined on
behalf of the plaintiff proved the tender filed by
the plaintiff with the defendant dated 27th
December, 1980 which was ‘Ex.PW-2/1’. He also
stated that the tender for supply was submitted at
Lucknow and that negotiation before the award of
work was also held at Lucknow. He further stated
that the plaintiff dispatched the materials before
receipt of instructions to send it by road. On
behalf of the defendants also two witnesses were
examined.
5. Mr. P.K. Srivastava who was the Accounts
Officer of the defendant/organisation was examined
as DW-1. He had stated that the Agreement as well
as the purchase order was placed from Lucknow and
the goods were to be delivered at OBRA Thermal
Unit, U.P. and that the payment was to be made
from construction account OBRA. He had also stated
that as per the Agreement, the jurisdiction clause
provided that in case of dispute jurisdiction would
be under the High Court of Allahabad. In the
cross-examination, he was asked as to whether a
letter of intent was sent at Delhi to which he
deposed that he cannot say whether such a letter of
intent was sent at Delhi. He, however, stated that
it is correct that the purchase order was sent at
the headquarters of the plaintiff/Company at Delhi.
He was also asked as to whether in the condition of
sale by the plaintiff, the jurisdiction clause was
that of Delhi. In his deposition, he had stated
that although it is correct that the condition of
sale by the plaintiff and the jurisdiction clause
was mentioned to be at Delhi, but the same was not
accepted by the defendant.
6. The next witness examined on behalf of
the defendant was Mr. S.C. Diwedi, who was posted
at the concerned plant as Assistant Accountant. He
also stated in his cross-examination that the offer
was received at Lucknow Electricity Board and that
the purchase order was also issued from Lucknow to
the registered officer of the plaintiff/Company at
Delhi and that the purchase order was under the
signature of Superintending Engineer, Thermal
Design Circle, Lucknow.
7. In the light of the aforesaid evidence
adduced by the parties, I have looked into the
pleadings as also heard the learned counsel
appearing for the parties on the aforesaid issue,
i.e., issue No. 2.
8. The tender offer of the plaintiff is
proved as ‘Exb.PW-2/1’. The said tender offer was
made by the plaintiff on 27th December, 1980 and in
the said tender the plaintiff had included a clause
regarding jurisdiction stating that for all matters
of disputes, jurisdiction would be a Court in
Delhi/New Delhi. The purchase order of the
defendant as against the aforesaid tender is also
proved by the parties, being an admitted document.
The said purchase order was issued in the month of
August, 1981. The said purchase order states that
with reference to the tender of the plaintiff
followed by up to date correspondence exchanged
therewith, an order is placed for supply of air
compressors and accessories as per specifications
to the plaintiff making it clear therein that the
said purchase order would be further governed by
the terms and conditions mentioned in the said
purchase order.
9. I have carefully gone through the terms
and conditions governing the said purchase order
and Clause 24 thereof clearly states that the
aforesaid purchase order would be further governed
by all the clauses and specifications and general
conditions of Contract UPSEB from ‘B’ expect for
those which were specifically excluded in the said
document. Clause 32 of the aforesaid General
Conditions of Contract provides that any action
taken or proceeding initiated on any of the terms
of this Agreement shall be only in the Court of
competent jurisdiction under the High Court of
Judicature at Allahabad. The said clause is not an
excluded clause in the purchase order and,
therefore,t he said clause is applicable to the
transaction and the contract involved in the
present suit. It is thus proved and established
that the parties were governed by the aforesaid
Clause 32 of the General Conditions of Contract.
The Offer of the plaintiff providing jurisdiction
in Delhi was not accepted and did not form part of
the Agreement.
10. The plaintiff while making his offer put
a condition that the jurisdiction for any dispute
would be in the Court of Delhi/New Delhi whereas,
the said offer was not accepted and in the purchase
order a specific clause in the aforesaid nature was
incorporated which was accepted by the plaintiff
and pursuant to which, according to the plaintiff,
it made the deliveries also. Therefore, the said
Clause No. 32 is definitely binding and is the only
relevant Clause for the purpose of the present
transaction and the contract in question. The said
clause specifically says that any action taken or
proceeding initiated on any of the terms of the
agreement would be only in the court of competent
jurisdiction under the High Court of Judicature at
Allahabad. The emphasis is on the word only
whereby the jurisdiction even if it is vested in
any other Court stood excluded and the parties by
their mutual consent have vested the jurisdiction
of the action taken on the proceeding initiated in
the court of competent jurisdiction under the High
Court of Judicature at Allahabad.
11. In this connection, reference may also be
made to the decision of the Supreme Court in the
case of A.B.C. Laminart Pvt. Ltd. and Anr. v.
A.P. Agencies, Salem; . In paragraph 18 of the said judgment,
the Supreme Court held 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 therewithin, 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.
The ratio of the aforesaid decision is fully
applicable to the facts of the present case.
12. In view of the aforesaid position,
therefore, the present suit should have been
instituted in the competent Civil Court having
jurisdiction under the High Court of Judicature at
Allahabad. The suit filed in this court,
therefore, cannot be entertained in view of lack of
territorial jurisdiction. Therefore, exercising my
powers under Order VII Rule 10 CPC, I direct that
the plaint and the documents be returned to the
plaintiff in order to enable the plaintiff to
present the same in the competent Court in which
the suit should have been instituted. While
returning the plaint as also the documents in
accordance with law, the Registry shall follow the
procedure as prescribed under Order VII Rule 10
CPC.
13. The suit stands disposed of in terms of
the aforesaid order. There shall be no order as to
costs.