JUDGMENT
G. Rajasekharan, J.
1. Defendants 1 and 3 in a suit for money, are the appellants. Plaintiff is the Kerala Soaps and Oils Ltd. First defendant is a Firm M/s. Nagesh Sales Corporation, Kudumol Ranga Rao Road, Mangalore. The other defendants are the partners of the said firm.
2. The plaintiff is a manufacturer of soaps
and detergents, and the defendant firm is a
dealer of those commodities. The allegation is
that the defendant placed Ext. A1 order on
31-3-1983 for supply of certain goods, and the
plaintiff respecting that order, has supplied
the goods. Exts. A2 and A3 are the corresponding invoices wherein the order num
ber in Ext. A1 is referred to. Exts. A4 and A5
are delivery notes bearing the date 31-3-1983.
The delivery notes say:
“With reference to your kind Order No. 92662 dated 31-3-83, we have despatched the following goods to you by M. G. Brothers.
The defendants have no case that they have not taken delivery of those goods. It is for the price of goods supplied as per the above documents that the suit has been laid.
3. The main contentions are that the Calicut Court has no territorial jurisdiction to entertain the suit, since the order was placed at Bangalore and goods were despatched from Bangalore, and that the claim is barred by limitation. There is a bare contention in the written statement that certain moneys were due to the defendants from the plaintiff as well as its sister concern M/s. Kerala State Detergents and Chemicals Limited, and so the defendants are not liable for the suit claim.
4. There is no specific claim of set off or a counter-claim and no amount is mentioned in the written statement. In paragraph (10) of the written statement the defendants say :
“In fact, the 1st defendant-firm is entitled to get amounts from the plaintiff-company, as well as its sister concern Kerala State Detergents and Chemicals Limited. This fact has been specifically stated in the reply notice…. As mentioned earlier, there is no specific amount claimed, nor any Court-fee paid for the counter-claim or for the claim of set-off. In the circumstances, rightly the trial Court did not raise any issue on that aspect. So, the two questions that come up for consideration are (1) whether the Calicut Court had jurisdiction to entertain the suit and (2) whether the suit is barred by limitation.
5. It is an admitted fact that actually the goods were despatched from Bangalore, the Regional Office of the plaintiff, and not from Calicut. It is true that there is an allegation in the plaint that actually goods were despatched from Calicut. But the plaintiffs witness examined as PW 1, has categorically admitted that actually the goods were despatched from Bangalore to Mangalore. According to learned counsel for defendants 1 and 3, the Calicut Court had no territorial jurisdiction and the suit should have been instituted at the Bangalore Court or Mangalore Court where the first defendant carries on business.
6. Under Section 20(c) of the Code of Civil Procedure, the Court within whose local limits the cause of action wholly or in part had arisen has territorial jurisdiction to entertain the suit. So, the question is whether the cause of action wholly or in part arose in Calicut.
7. As mentioned earlier, Ext. A1 is the order placed by the defendants. The learned counsel for the defendants would submit Ext. A1 does not bear the signature of the dealer, or the seal of the dealer and so, Ext. A1 cannot be put against them to contend that the payment for the purchase of goods was to be made at Calicut. Ext. A1 is a printed form and at the top of it, order number is given as B 92662. On the reverse side, there are conditions for sale. Clause 11 reads thus:
“The buyer agrees that the place of payment for the goods is the city of Calicut and that any suit to enforce the rights of either party under or in respect of this contract shall be instituted in and tried by a competent Court only in the city of Calicut and in no other Court and the buyer expressly agrees to submit to the jurisdiction of such Court.”
At the close of the order form, it is stated :
“Dear Sirs,
We/I agree that this order is subject to terms and conditions overleaf which have been explained to us/me and understood by us/me.”
Below that, is the place for dealer’s signature. At that place, there is an initial by somebody. It bears the date 31-3-1983. There is no place for seal provided in the form. The argument of the learned counsel for the defendants is that since there is no full signature or seal in Ext. A1, the condition No. 11 on the reverse side of the form is not binding on the defendants. This argument cannot be accepted. The defendants did not go to the box to deny Ext. Al. PW 1 the witness for the plaintiff, has proved Ext. A1 and according to the witness, it was the order placed by the first defendant firm. It is true that he could not identify whose initial or signature is there in Ext. Al. But, that will not advance the case of the defendants.
8. It is with reference to Ext. A1 that Exts. A2 and A3 invoices were prepared. That is clear from the fact of mention of the number of the order as 92662 dated 31-3-1983. That order is none other than Ext. Al. In Exts. A4 and A5 Delivery Notes also, there is reference to the order placed by the defendants as bearing No. 92662 dated 31-3-1983. In the light of these documents, it is idle for the defendants to contend that Ext. A1 was not the order placed by them for the supply of goods.
9. The next question is whether Clause 11 in Ext. A1 is binding on the defendants. It was argued that there was no meeting of minds with respect to that clause and so, that clause cannot be enforced against them. This argument also is unacceptable for the reason that Ext. A1 was the order placed by the defendants and there is the initial or signature of the dealer in Ext. Al. Further, it is borne out from Ext. A6 that from 1981 onwards there were business transactions between the plaintiff and defendants. PW 1 in his evidence says that all along from 1981 onwards the payments were being made at Calicut, and the agreement between the parties is for payment of price at Calicut. It is further spoken to by this witness that the Bangalore Regional Office is not entitled to receive any payment and they are not operating any Bank account for and on behalf of the plaintiff company. This part of the testimony has not been
effectively challenged in cross-examination. As noticed earlier, none on the side of the defendants have entered the box to deny Ext. A1 or the binding nature of the conditions in Ext. Al. In the circumstances, I have no hesitation to hold that Ext. A1 was the order placed by the defendants and they are bound by the conditions for sale found on the revenue side of Ext. Al.
10. Clause 11 of the conditions clearly says that the parties agree that the price of goods shall be paid at Calicut. It is also mentioned that only the Calicut Court has jurisdiction in the matter of any dispute between the parties.
11. No doubt, that jurisdiction cannot be conferred on any Court by agreement of parties. But, when more than one Court has jurisdiction to entertain any particular suit, it is open to the parties to choose one of such Courts and agree that suits can be instituted in that Court when disputes arise between the parties. The authority for that proposition is the case reported in AIR 1971 SC 740 (Hakam Singh v. Gammon (India) Ltd.). Following that decision, this Court in Economic Transport Organisation v. United India Insurance Co. Ltd., 1986 Ker LT 220 has held:
“…..Where law allows choice of forums and the parties agree that the dispute shall be settled only in one of such forums, that would not amount to absolute restriction against rights and therefore Section 28 will not act as a bar. Ordinarily, Courts will stand by such agreement and ensure that parties stand up to the agreement.”
Even where there is no specific or express agreement between the parties regarding the place of payment, the Courts have uniformly held that the creditor may sue at his place of business for realisation of the amounts from the debtor. It is certainly not on the English principle that the debtor shall seek the creditor.
12. In AIR 1946 Mad 300 (Galley and Co. v. Dathi China Appalaswami Naidu) the Madras High Court held :
“The duty having been cast under Section 49, Contract Act, on the defendant to apply to the plaintiff to appoint a place for the performance of his obligation to pay the amount, he cannot, either as a matter of law or of justice, improve his position by neglecting to perform that duty; and that as no express reference was made to the place of payment in their contract, the defendant must be deemed by necessary implication, to have agreed to make the payment to the plaintiff.”
Relying on this decision, this Court in Cherian v. George, 1970 Ker LT SN page 39 has ruled:
“If the plaintiff can show that under the terms of the contract money under the contract is to be paid at a particular place, then the suit can be instituted in the Court within whose jurisdiction the place of payment lies.”
13. Going by the legal precedents, the position is that even when there is no agreement between the parties, express, regarding the place of payment, if the circumstances warrant, it could be held that the payment is to be made at the place of the creditor. Here, there is express agreement between the parties in Ext. A1 order that the payment shall be made at Calicut. It is also specifically stated that only the Calicut Courts will have jurisdiction to entertain any suit for resolving any dispute between the parties. So, the finding of the trial Court that that Court has jurisdiction to entertain the suit, does not call for any interference at all.
14. The next point for consideration is whether the suit is barred by limitation. Ext. A1 order was placed on 31-3-1983. Invoices were prepared on the same day as evidenced by Exts. A2 and A3. The goods were despatched the same day as borne out from Exts. A4 and A5. Under Article 14, Part II of the Limitation Act, the period of limitation is three years for a suit for the price of goods sold and delivered, where no fixed period of credit is agreed upon. The period starts to run from the date of delivery of the goods. Assuming that the goods despatched on 31-3-1983 were delivered on the same day, the period of three years starts from 31-3-1983. The suit instituted on 31-3-1986.
According to learned counsel for the appellants, there is a delay of one day in instituting the suit. That argument forgets Section 12 of the Limitation Act. Under Section 12, ‘in computing the period of limitation for any suit, appeal or application, the day from which such period to be reckoned, shall be excluded.’ So, excluding 31-3-1983, the period of three years have to be recoked from 1-4-1983. The suit filed on 31-3-1986 is well within time and there is no bar of limitation.
15. Exts. A1 to A6 prove the suit claim. Ext. A6 is the extract of the ledger kept by the plaintiff company in their business. PW 1 swears that the accounts were maintained truly, regularly and properly. Ext. A6 shows that there was a debit against the first defendant firm to the tune of Rs. 41,218/87. It was to realise that amount, the suit was instituted. PW 1 together with the above documents prove the plaint claim.
16. The trial Court has granted 12 per Cent interest from the date of suit till realisation. It cannot be disputed that the transaction is a commercial transaction and under the proviso to Section 34(1) of the Code of Civil Procedure, future interest could be more than six per cent, if the transaction is a commercial one. There is no contract for payment of interest. But in Ext. A7 notice claiming payment of price, the claim for interest was made by the plaintiff. So, the award of interest by the trial Court at twelve per cent per annum also does not call for any interference.
17. In the result, the appeal fails and is dismissed, confirming the judgment and decree of the trial Court. There is no reason why costs shall not follow the event. Appeal is dismissed with costs.