JUDGMENT
Chaudhary S.N. Mishra, J.
1. This miscellaneous appeal, at the instance of the plaintiff, is directed against the order, dated 18-4-1987 passed by the learned Subordinate Judge IV, Jamshedpur in Money Suit No. 1 of 1985, by which the learned Judge decided the preliminary issue raised by the defendant under Order XIV, Rule 2 of the Code of Civil Procedure after having held that the Jamshedpur Court has no jurisdiction in view of clause 10 of the agreement arrived at between the plaintiff and the defendant and further the learned Judge directed that the plaint be returned to the plaintiff for presenting the same before the Courts in Bombay.
2. The plaintiff filed the instant suit in the Court of the Subordinate Judge, Jamshedpur, for realisation of Rs. 60,000 with interest towards the commission payable to the plaintiff by the Defendant-Company.
3. The case of the plaintiff, in brief, is that he was appointed as a Sales Reprasentative by the Defendant-Company to procure purchase orders on its behalf from different Industrial Establishments at Jamshedpur.
4. It is further atteged that the plaintiff served as representative of the Defendant-Company up to 9-12-1981, when the said agreement was terminated by post by the Defendant-Company. The plaintiff, thereafter, asked the Defendant-Company to pay Rs. 50.603.37 on account of Commission for the orders procured by him on behalf of the Defendant-Company but the defendant refused to pay the same. The plaintiff-accordingly, sent a lawyer’s notice, but inspite of the notice, the Defendant-Company did not pay the amount and hence the plaintiff instituted the present suit for realising the said amount along with the interest as stated above.
5. The Defendant-Company appeared and filed the written statement stating inter alia that the Court at Jamshedpur has no jurisdiction to try the suit in terms of clause 10 of the agreement arrived at between the plaintiff and the Defendant-Company. Accordingly, the defendant filed an pplication under Order XIV, Rule 2 of the Code praying therein to decide the jurisdiction as a preliminary issue.
6. The plaintiff filed a petition by way of rejoinder stating therein to reject the petition filed by the Defendant-Company under Order XIV, Rule 2 of the Code.
7. The learned Subordinate Judge by the impugned order decided the preliminary issue in favour of the defendant as stated above and hence this miscellaneous appeal.
8. The learned Counsel appearing on behalf of the plaintiff-appellant, has submitted that the order passed by the learned Subordinate Judge is wholly illegal arbitrary without jurisdiction and further that clause 10 of the agreement cannot be interpreted that all disputes arising between the parties shall be tried at Bombay and not elsewhere.
9. The learned Counsel, in support of his submission relied upon a decision of A. B. C. Lamlnart Pvt. Ltd. and Anr. v. A. P. Agencies, Salem, .
10. The learned Counsel, appearing on behalf of the respondent, on the other hand, supported the order of the court below and further submitted that in view of clause 10 of the agreement, the Bombay Court can alone have jurisdiction to entertain the suit for the reliefs sought for and not the court at Jamshedpur.
11. In support of his argument, reliance has been placed in Hakam Singh v. Gammon (India) Ltd., ; Chandeshwar Singh and Ors. etc. v. Dahu Mahto and Ors. etc., . Full Bench and in Frick India Ltd v. Sharma Cold Storage and Ice Factory (P.) Ltd., .
12. In order to appreciate the argument of the learned Counsels of the parties, it is necessary to quote clause 10 of the said agreement:
This arrangement is subject to jurisdiction of courts in Bombay.
13. The learned Counsel, appearing for the appellant while developing his argument has submitted that the entire cause of action for the instant suit arose at Jamshedpur and, as such, the Jamshedpur Court has exclusive jurisdiction to try the suit particularly when the said agreement having already stands terminated.
14. The learned Counsel strongly relied upon the decision (supra). The facts of that case are almost similar to the instant case wherein the appellant entered into agreement with the respondent under which the appellants were to supply 500 bobbins of Rupalon Metallic Yarn to the respondent at the rate of Rs. 35 per bobbin in terms of different clauses of the agrement. Clause 11 of the agreement was as follows:
Any dispute arising out of this sale shall be subject to Kaira jurisdiction.
15. The appellant was manufacturer and supplier of metallic yarn having registered office within the jurisdiction of the Civil Court of Kaira. The respondent had a registered partnership firm doing business in metallic yarn and other allied products at Salem.
16. The dispute having arisen the respondent filed a suit against the appellant in the court of Subordinate Judge at Salem for recovery of certain amounts. The appellant apart from taking a number of defence, raised a preliminary objection that the Subordinate Judge at Salem had no jurisdiction to entertain the suit in terms of clause 11 of the agreement, inasmuch as, the parties by express contract had agreed to confer exclusive jurisdiction in regard to the disputes arising out of the contract to the Civil Court at Kaira.
17. The trial court in view of clause 11 of the agreement aforesaid has held that it had no jurisdiction to entertain the suit and, accordingly, returned the plaint for presenting in the proper court. Matter went in appeal to the High Court where the judgment of the trial court was set aside with a direction to dispose of the suit on merits.
18. Ultimately, the order of the High Court was challenged before the apex court where their Lordiships have considered the scope and ambit of clause 11 of the agreement aforesaid and held in Paragraph 10 of the judgment:
Under Section 23 of the Contract Act the consideration or object of an agreement is lawful, unless it is opposed to public policy. Every agreement of which the object or consideration is unlawful is void. Hence there can be do doubt that an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy. Ex dolo malo non oritur actio. If therefore it is found in this case that clause 11 has absolutely ousted the jurisdiction of the Court it would be against Public policy. However, such will be the result only if it can be shown that the jurisdiction to which the parties have agreed to submit and nothing to do with the contract. If on the other hand it is found that the jurisdiction agreed would also be a proper jurisdiction in the matter of the contract it could not be said that it ousted the jurisdiction of the Court. This leads to the question in the facts of this case as to whether Kaira would be proper jurisdiction in the matter of this contract. It would also be relevant to examine if some other courts that of Kaira would also have had jurisdiction in the absence of clause 11 and whether that would amount to ouster of jurisdiction of those courts and would thereby affect the validity of the clause.
19. Their Lordships, after taking various decisions into consideration, have further held in Paragraph 21 of the judgment which reads as follows:
From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specified accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like ‘alone’, ‘only’, ‘exclusive’ and the like have been used there may be no difficulty.
Even without such words in appropriate cases the maxim ‘expressio unius est exclusio alterus’–expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.
20. Ultimately, their Lordships have held that on the facts and circumstances of this case that, no, doubt, Kaira Court had jurisdiction but since the articles were delivered at the address of the respondent at Salem and, therefore, the Court at Salem have also jurisdiction to entertain the suit.
21. Their Lordships further held that out of the two jurisdictions, one was excluded in terms of clause 11 even then it would not abosolutely oust the jurisdiction of other Court.
22. On the facts as stands in that case, their Lordships have finally held :
…In the clause ‘any dispute arising out of this sale shall be subject to Kaira jurisdiction, ex facie we do not find exclusive words like ‘exclusive’, ‘alone’, ‘only’ and the like. Can the maxim ‘expressio unius estexclusio alterius’ be applied under the facts and circumstances of the case ? The order of confirmation is of no assistance. The other general terms and conditions are also not indicative of exclusion of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction under law through connecting factor. of delivery of goods thereat was expressly excluded. We accordingly find no error or infirmity in the impugned judgment of the High Court.
23. In the case, in hand, the situation is almost similar wherein the said agreement was signed by the plaintiff at Jamshedpur. The purchase orders by the plaintiff on behalf of the Defendant-Company were used to receive from different Industrial Establishment at Jamshedpur and in pursuance of the said order the articles were to be supplied at Jamshedpur plaintiff used to receive payment at Jamshedpur. In that view of the matter, cause of action for the instant suit definitely arose at Jamshedpur.
24. The court below while passing the impugned order has completely failed to take into considerations all the connecting factors while deciding its jurisdiction in purported exercise of power under Order XIV, Rule 2 of the Code.
25. The learned Cousel appearing on behalf of the respondent, on the other hand, has cited number of decisions as mentioned above. As regards, the decision referred to in (supra), I need not discuss the ratio of the case since , (supra), has been taken into consideration by their Lordships in (supra). The other two decisions which have been relied upon by the learned Counsel are also not very helpful to him. In . Full Bench aforesaid, the petitioner challenged the order of transfer of the case by the Sub-divisional Officer on the ground that he had no power of transfer in view of the provisions under the Bihar Land Reforms ( Fixation of Ceiling Area and Acquisition of Surplus Land) Act and after considering the submission advanced on behalf of the parties, their Lordships have held that the jurisdiction of the respective Land Reforms Deputy Collector and the Sub-divisional Officer could not be raised by the appellant since both the officers were vested with concurrent power to entertain and dispose of cases under Section 16(3) of the said Act.
26. I fail to understand as to how this decision will help the respondent.
27 Similarly in (supra), a Division Bench had an occasion to interpret clause 22 of the agreement which was in the following terms:
The place of the contract shall be Delhi all proceedings including those in the Courts of Law shall not be instituted or commenced outside Delhi.
28. In view of the terms of contract, the aforesaid clause 22 of the agreement was mandatory in nature and in that context their Lordships have held that the Delhi Court has alone jurisdiction to entertain the suit for damages in terms of clause 22 of the agreement. In the case, in hand, clause 10 of the agreement is not in mandatory form and, therefore, the ratio of this case is not applicable in the fact and circumstances of the instant case.
29 Taking into consideration, the submissions advanced on behalf of the parties and relying upon the ratio of the decisions ((supra), I allow this appeal, set aside the impugned order and direct the lower court to take the plaint on file and dispose of the suit on merits. In the facts and circumstances of this, there will be no order as to costs.