JUDGMENT
B. Panigrahi, J.
1. This revision has assailed the judgment/ order dated 26th April, 2000 passed by the learned Additional District Judge, Bhubaneswar in Misc. Appeal No. 3/9 of 1999 setting aside the judgment/order passed by the learned ‘Civil Judge (Junior Division), Bhubaneswar in Misc. Case No. 251 of 1998 on an application under Order 39, Rules 1 & 2, C. P. C.
2. The factual matrix leading to this revisional application is as follows :
The revisionist/plaintiff had purchased a Tata Estate Car bearing Registration No. OR-02-D-0021 from the defendant-opp. party on the basis of a hire purchase agreement. It was stipulated in the agreement that the plaintiff will repay the price of the car to the opp. party in monthly instalments. It is alleged that while advancing loan, the defendant-opposite party had taken signatures of the plaintiff on a printed form with blank spaces and utilised the same against the plaintiff without letting him know about the terms of the agreement even on repeated demands. However, the plaintiff went on regularly paying the monthly instalments and it is claimed that before 28-2-98 the entire money had been paid. However, the car was delivered to the plaintiff about a year after deposit of the initial amount contrary to the understanding between the parties. When the plaintiff wanted to issue a clearance certificate, the defendant made attempts to take possession of the vehicle on a false pretext that the plaintiff had yet not repaid the loan amount. The defendant also appointed an Arbitrator who gave notice to the plaintiff to show cause. The plaintiff, therefore, filed the suit for a declaration that the agreement in question was void in law; that the arbitration proceeding is illegal and that the defendant has no legal authority to seize the car and take possession of the same and further prayed for permanent injunction against the defendant and the Arbitrator. The plain-tiff also filed an application for an order of ad interim injunction restraining the defendant from seizing the car.
2. The defendant-opposite patty filed written statement taking the stand that the suit was not maintainable in view of existence of arbitration clause in the agreement and since the matter was referred to the Arbitrator and the Arbitrator has already settled the matter, the Court has, therefore, no jurisdiction to interfere with the matter and it was open to the plaintiff to agitate the matter before the Arbitrator.
3. The trial court after hearing on the application for injunction passed the following order :–
“…..The opposite parties are temporarily restrained from seizing the suit vehicle till disposal of the suit. The petitioner is directed to repay the loan amount with interest thereon as per the findings of the learned Arbit- , rator with immediate effect.”
Against the aforesaid order of the trial court, the defendant preferred Misc. Appeal No. 3/9 of 1999 challenging the order restraining them not to seize the vehicle. The plaintiff being aggrieved by the portion of the order by which the trial court directed him “to repay the loan amount with interest thereon as per the findings of the learned Arbitrator with immediate effect” preferred Misc. Appeal No. 1/7 of 1999. By a common order dated 26-4-2001, the learned Additional District Judge, found that the trial court had no jurisdiction to entertain the suit and the plaintiff had no prima facie case. He further found :–
“Thus, it is seen that the plaintiff has not succeeded in establishing any of the requirements to be entitled to an order of ad interim injunction. The learned counsel for both the parties took me extensively through different provisions of the Arbitration Act, 1940 and the Arbitration & Conciliation Act, 1996. They also extensively argued regarding the powers of an Arbitrator under these Acts, I am not going to discuss all these matters in this judgment, as those are extraneous to the points in controversy. In a suit of this nature filed before the Civil Judge (Jr. Division), the correctness of an Arbitrator’s’ award cannot be examined. Therefore, the order of the trial court directing the plaintiff to repay the loan amount in full as well as his order restraining the defendant from taking possession of the disputed vehicle are both without jurisdiction and unsustainable. If the plaintiff is asked to pay the loan amount at this stage, ” nothing remains to be decided in the suit.”
Ultimately, the lower appellate court set aside the order of injunction passed by the triai court.
4. Mr. Mishra, learned counsel appearing for the plaintiff-petitioner has seriously challenged the observation of the lower appellate court, inasmuch, as it did not decide the matter in its true perspective. It has been contended that when the suit was filed on the ground of fraud, notwithstanding the execution of the agreement, the jurisdiction of the Civil Court cannot be said to have been barred in a case of fraud. The Arbitrator does not have any jurisdiction to go into that question and the same has to be decided under the terms of the Contract Act. The trial court had, therefore, considered the matter in its true spirit and held that the Court has jurisdiction.
5. The learned counsel appearing for the defendant -hirer has submitted that since there was a clause in the agreement conferring jurisdiction at Bombay Court, the suit, if at all was to be filed in Bombay, but not at Bhubaneswar. Assuming that there was some fraud committed on the plaintiff, it is the Court in Bombay which is competent to decide the suit. The learned counsel has further contended that no part of the cause of action seems to have arisen within the jurisdiction of Bhubaneswar Court and, therefore, the suit itself is not maintainable.
6. Certain undisputed facts be noted here: The plaintiff-petitioner had entered into an agreement with the defendant at the time of availing loan for the purchase of a car on hire purchase arrangement. As long as the money in full is not liquidated, the financier-defendant for all intents and purposes, shall be treated as owner, The plaintiff has pleaded that he paid back the money which has been disputed by the defendant. In such event it is a matter of accounting which should be settled by the Arbitrator, In this case, there was a clause in the agreement at the time of advancament of loan which may be extracted hereunder :
CLAUSE. II.
“The Hirer shall pay to the Owners in Bombay on the execution of this Agreement the sum of Rs. 4S,399(A) as an initial payment by way of hire which shall become the absolute property of the Owners and will punctually pay to the Owners at their address for the time being at Bombay the sums mentioned in the Second Schedule hereto on the dates therein mentioned, whether previouly demanded or not by way of rent for the hire of the vehicle unless the Hirer shall have terminated the Agreement as hereinafter provided.”
CONDITION NO. 25 :
“All disputes, differences and/or claims arising out of these presents or as to the construction, meaning or effect thereof or as to the rights and liabilities of the parties hereunder shall be settled by Arbitration to be held in Bombay in accordance with the provisions of the Arbitration Act, 1940, or any statutory amendments thereof and shall be referred to the sole arbitration of a person to be nominated, by the Owners, in the event of death, refusal, neglect, inability or incapability of the person soappointed to act as an arbitrator, the Owners may appoint a new arbitrator. The award of the arbitrator shall be final and binding on all parties concerned and may be made a Rule of the High Court of Judicature at Bombay or any other court of competent jurisdiction within the city of Bombay.”
7. The agreement was executed at Madras on 28th April, 1995 between the parties. It is futile to argue at this stage that the plaintiff was compelled to subscribe his signature on a blank form. Since the time of purchase of the vehicle till the date of filing of the suit, the plaintiff-petitioner had never challenged about the terms of the agreement on the ground that it was taken by exercising fraud and the plaintiff was compelled to subscribe signature on a blank paper. The order of the learned Civil Judge (Junior Division), Bhubaneswar also reveals that the plaintiff-petitioner is directed to repay the loan amount with interest thereon as per the findings of the learned Arbitrator with immediate effect. This portion of the order has not been challenged by the petitioner. Therefore, until and unless he has paid back the entire amount on the basis of the findings of the Arbitrator, he could not claim ownership over the vehicle. In order to be entitled to an order of ad interim injunction, the plaintiff has to satisfy the Court that he has a prima facie case, that he will suffer irreparable injury and the balance of convenience tilts in his favour. It is well settled position of law that the relief of injunction is an equitable and discretionary relief which should be based on sound judicial principle. The rights of the parties would however, flow from the agreement. The clauses of the agreement do not provide an absolute right of ownership as long as the entire loan amount is not liquidated. Then from the order of the learned Civil Judge (Junior Division), it does not establish that the plaintiff has liquidated the entire loan, therefore, it has directed the plaintiff to pay the entire principal with interest as per the award as stipulated by the Arbitrator. At this stage, it cannot be determined whether he has paid all the instalments to the Financier-Company. Had the plaintiff appeared and contested before the Arbitrator, this question could have been gone into.
8. While determining the balance of convenience and irreparable loss, the Court has to strike a balance that in case the relief of temporary injunction is withhed, then the comparative mischief and inconvenience will be greater than granting it. In this case, since the defendant-financier is regarded as the owner as long as the loan amount subsists, equity tilts in its favour to claim possession of the vehicle.
9. The agreement was executed at Madras. The parties have agreed that all disputes, differences and/or claims shall be settled at Bombay. No part of cause of action had occured at Bhubaneswar except showing some payment to the defendant. That by itself does not confer a right to the plaintiff to file a suit at Bhubaneswar. If a suit can be filed at both places and the patties opted their choice to file the suit at one place, then the suit has to be instituted at the place indicated in the agreement. In this regard, a judgment of the Apex Court reported in 2001 (I) O. L. R. (S. C.) 164 in the case of M/s. Shriram City Union v. Finance Corporation Ltd., can be relied upon in which it was held as follows:
“This leads us to the second question which counsel for the appellant submits with vehemence to be considered as this issue is being raised time and again and unless this is settled, the parties will continue to litigate for long in the various Courts. So we took up the second point for consideration. We heard the counsel for the parties in this regard. The submission for the appellant is strongly based on Clause 34 to the aforesaid agreement which is quoted herein :
“34. Subject to the provisions of Clause-32 above it is expressly agreed by and between the parties herein above that any suit application and or any other legal proceeding with regard to any matter, claims differences and for disputes arising out of this agreement shall be filed and or referred to the Courts in Calcutta for the purpose of jurisidiction.”
Clause 34 leaves no room of doubt that the parties expressly agreed between themselves that any suit, application any other legal proceedings with regard to any matter, claim, differences and dispute arising out of this claim shall only be filed in the Courts in Calcutta.
In the present case the impugned order of the High Court and the order passed by the appellate Court arises out of the order passed by the Civil Juge, Bhubaneswar. We have so keep in mind there is difference between inherent lack of jurisdiction of any Court on account of some statute and the other where parties through agreement bind themselves to have their dispute decided by any one of the Court having jurisdiction. Thus the question is not whether the Orissa Courts have the jurisdiction to decide respondent’s suit but whether the respondent could have invoked the jurisdiction of that Court in view of the aforesaid Clause 34. A party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy. It is open for a party for his convenience to fix the jurisdiction of any competent Court to have their dispute adjudicated by that Court alone. In their words if one or more Courts has the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent Courts to decide their disputes. In case parties under their own agreement expressly agree that their dispute shall be tried by only one of them then the party can only file the suit in that Court alone to which they have so agreed. In the present case as we have said through Clause 34 of the agreement, the parties have bound themselves that any matter arising between them under the said contract, it is the Courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open for them to choose a different jurisdiction as in the present case by filing the suit at Bhubaneswar, Such a suit would be in violation of the said agreement.
For the said reasons we have no hesitation to hold that the suit filed by respondent in the Civil Court at Bhubaneswar would not be valid in view of the said agreement.
In Hakam Singh v. M/s. Gommon(India) Ltd.,1971(3) S.C.R. 314 this Court held :
“But where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the
dispute between them sball be tried in one of such Courts
is not contrary to public policy. Such an agreement does
not contravene section 28 of the Contract Act.”
xx xx xx Since as application for filing an award in respect of a dispute arisingh out of the terms of the agreement could be filed in the Courts in the City of Bombay, both because of the terms of Clause 13 of the agreement and because of the respondents had their Head Office where they carry on business at Bombay, the agreement between the parties that the Courts in Bombay alone shall have jurisdiction to try the proceeding relating to arbitration was binding between them." Hence we hold this second question in favour of the appellant that in view of Clause 34 of the agreement it is the Courts at Calcutta alone would be competent Court to adjudicate the dispute between the parties and hence finding to the contrary given by the Courts below is hereby aside."
10. Mr. Mishra, the learned counsel appearing for the petitioner bad cited several decisions viz , reported in A I.R. 1989 S.C. 1239 (A.B.C. Laminart Pvt. Ltd. and another v. A.P, Agencies, Salem); A.I.R. 1989 Orissa 182 (Laxmidhar Behera v. Bansidhar Khatei); A.I.R. 1987 S.C. 2289 (Orient Transport Co., Gulabra and another v. Jaya Bharat Credit and Investment Co. Ltd., and another); AI.R. 1983 Calcutta 445 (Indian Oil Corporation Ltd. v. Premier Road Carries Ltd.); A.I.R. 1977 Allahabad 403 (Vineet Kitmar v. Smt. Bhagawandei); A.I.R. 1966 Orissa 79 (Union of India represented by General Manager, South Eastern Rly, v. Kuthka Singh and another); 1987(1) O.L.R. 265 (Susbanta Kumar Nayak v. Dillip Kitmar Mohanty and others); A.I.R. 1978 Orissa 167 (Prag Oil Milla Depot, v. Transport Carporation of India and another) and A.I R. 1960 S.C. 1309 (The State of Madras v. C.P. Agencies and another). But none of those decisions being applicable to this case, therefore, I do not feel it necessary to discuss them at length. Accordingly, the Civil Revision is dismissed. As the plaint has been filed in a wrong Court, steps be taken to return the same to the plaintiff. Parties shall beat their respective costs.
11. Civil revision dismissed.