IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 234 of 2006()
1. MRS.LATHA S.MENON, W/O.A.V.S.MENON,
... Petitioner
Vs
1. M/S. SOUTHERN REFINERIES LIMITED,
... Respondent
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.MOHAN JACOB GEORGE
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :30/06/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. No. 234 of 2006
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Dated this the 30th day of June, 2009.
JUDGMENT
Raman, J,
Appellant is the plaintiff in O.S. No.46 of 2000 on the
file of the First Additional Sub Court, Kozhikode. The respondent
is the sole defendant in the suit. The suit is for realization of
money for goods sold and for return of the security. The defendant
contended among other things that the Kozhikode court has no
jurisdiction and the Trivandrum court alone has got exclusive
jurisdiction in the matters arising out of the contract and sought for
an adjudication on the question of jurisdiction as a preliminary
issue by filing I.A. 2618 of 2001. The court held that the
Kozhikode court has no jurisdiction and the Trivandrum court
alone had jurisdiction and directed return of the plaint. Reliance
was placed on clause 23 of the agreement and nothing else. It is
contended by the appellant that the decision on the jurisdictional
issue rendered by the court below is erroneous and clause 23 is
misconstrued.
F.A.O. 234/2006. 2
2. We have heard the parties.
3. Clause 23 of the agreement reads as follows:
“For any dispute that may arise from this
agreement the same shall be subject to Trivandrum
jurisdiction.”
It is stated that while construing a clause ousting jurisdiction, it is
pertinent to see whether there is ouster of jurisdiction of other
courts. If the clause is clear, unambiguous and specific 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 the construction of the ouster clause, if the
words like “alone”, “only”, “exclusive” and the like are used, there
may not be any difficulty. But there may be cases, where such
expressions might not have been used. But still, there may be
scope for application of the maxim expressio unius est exclusio
alterius provided the intention of the parties can be gathered from a
variety of circumstances proved. In other words, what is an
appropriate case will depend upon the facts of each case. In such a
case, mention of one thing may imply exclusion of another. When
F.A.O. 234/2006. 3
jurisdiction is specified in a contract, an intention to exclude all
others from its operation may in such cases be inferred. Therefore,
it has to be properly construed. Admittedly, from the extracted
clause, it can be seen that here is a case where the words like
“alone”, “only” and “exclusive” are absent in the clause.
Therefore, the question is whether this is a case where expression
of one could be said to be the exclusion of another and whether
facts pleaded and proved would justify such an interpretation arise
for consideration. Admittedly, either side did not and could not
adduce any evidence and the court below proceeded to construe and
interpret clause 23 and held that the Kozhikode court has no
jurisdiction. The view as taken by the court below is clearly wrong
and contrary to the settled position. In this regard, we need to refer
only two decisions of the Apex Court. In A.B.C. Laminart Pvt.
Ltd. v. A.P.Agencies, Salem ((1989) 2 SCC 163), it was held that
even in the absence of express exclusionary words in the clause,
maxim expressio unius est exclusio alterius may be applied in
appropriate cases where the clause only specifies one of the two
F.A.O. 234/2006. 4
courts having jurisdiction without specifically excluding
jurisdiction of the other, the court has to examine the facts to see
whether the clause, which specified one of the courts has
jurisdiction have the effect of excluding the other. The same view
is reiterated in the subsequent decision of the Supreme Court
reported in Vijay Shekhar v. Union of India ((2004) 4 SCC 670)
In the result, we set aside the order passed by the court
below and remand the case for considering the issue afresh after
affording an opportunity to adduce evidence to both sides on this
issue and depending upon the finding on the said issue, it will
proceed to deal with the case accordingly. Parties shall appear
before the court below on 27.7.2009.
The appeal is allowed as above.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.