Dhanmal Marwari v. Messrs. Jankidas Baijnath — 1944 DIGILAW 171 (CAL)

JUDGMENT Biswas, J. - This is a Rule against an Appellate order of the District judge of Chittagong, affirming an order of the Subordinate Judge of that place, returning a plaint under Or. 7, r. 10 of the CPC on the ground that the Court had no jurisdiction. The suit was one for damages for breach of contract, and the trial Court took the view (1) that no part of the cause of action arose within jurisdiction, and (2) that jurisdiction had been ousted by agreement of parties. On appeal, the District Judge held, on the first point, that the Chittagong Court had jurisdiction, and as regards the second, that jurisdiction could not be ousted by agreement. Nevertheless, the learned judge thought that as by agreement the parties had in fact intended to confer jurisdiction on another Court, namely, the Court at Katihar in District Purnea (Behar), and as upon the facts, the Katihar Court also had jurisdiction, it was "just and equitable" that the suit should be tried at Katihar. As it appears that there is only a Munsif's Court at Katihar which would have no pecuniary jurisdiction to entertain the suit, this meant that the suit would have to be tried by the Subordinate Judge at the District head quarters at Purnea. The Plaintiff has now obtained the present Rule. 2. Whether the order of the District Judge can be upheld, or not in the result, there can be no question that it cannot be supported on the view he has taken. If either Court had jurisdiction, and if agreement of parties could not affect such jurisdiction, it would be for the Plaintiff as dominus litis to choose his forum. This was not an application under sec. 22 of the Code of Civil Procedure, so that the question of balance of convenience or expediency, or of what would be "just and equitable," might be a relevant consideration. The question here was one of law pure and simple, and it was tried upon evidence as a preliminary issue in bar. 3. At the hearing before us, Mr. Ramaprasad Mookerjee on behalf of the Defendants, Opposite Party, did not attempt to support the position taken up by the District Judge, but in effect adopted the line of argument which had found favour with the trial Court. That undoubtedly was more consistent. Mr. 3. At the hearing before us, Mr. Ramaprasad Mookerjee on behalf of the Defendants, Opposite Party, did not attempt to support the position taken up by the District Judge, but in effect adopted the line of argument which had found favour with the trial Court. That undoubtedly was more consistent. Mr. Mookerjee, however, laid greater stress on the agreement, as he rightly contended that if the agreement prevailed, the other question whether the Chittagong Court had jurisdiction or not would be wholly immaterial. But it was also his case that that Court had no jurisdiction. It is quite plain that a decision on either of the points, if in favour of the Defendants would be decisive, but the Plaintiff would not only have to show that the Court had jurisdiction, but also have to displace the effect of the agreement. 4. Now, on the first point, it is not disputed that jurisdiction is claimed for the Chittagong Court under cl. (c) of sec. 20 of the Code of Civil Procedure, which provides that a suit may be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. It is the Petitioner's case that part of the cause of action arose at Chittagong. 5. In support of this Mr. Das on behalf of the Petitioner relies on two facts: (1) that the making of the offer which led up to the contract took place at Chittagong, and (2) that under the terms of the contract, the goods were due to he despatched to Chittagong. Mr. Mookerjee, on the other hand, contends (1) that the making of the contract, and not the making of the offer, would form part of the cause of action, and (2) that the place where the cause of action arose would depend on the place where delivery was due, and not the ultimate destination of the goods. 6. It is conceded that the contract could not he deemed to have been made at Chittagong. The material facts were briefly as follows. The Plaintiff is a merchant carrying on business in Strand Road, Chittagong, and the Defendants are a firm of wholesale dealers in oil and other commodities, having their head office at Katihar. 6. It is conceded that the contract could not he deemed to have been made at Chittagong. The material facts were briefly as follows. The Plaintiff is a merchant carrying on business in Strand Road, Chittagong, and the Defendants are a firm of wholesale dealers in oil and other commodities, having their head office at Katihar. About the middle of April, 1942, one Jagadamba Prasad Sarma, a canvasser of the Defendants, went to Chittagong and procured an order from the Plaintiff for the purchase of certain quantities of mustard oil from them. Apparently, the agent had no authority to conclude a final deal on the spot on behalf of the firm. Certain terms were, however, settled by him with the Plaintiff, and these were entered in a printed form of agreement which he evidently carried with him. The document has been marked as Exhibit A on admission, and is said to have contained the offer of the Plaintiff, which was to become a concluded contract upon acceptance by the Defendants at their Katihar office. 7. That this was not intended to be anything more than an offer is in fact made sufficiently clear by the document itself. A little below the top on the front page are printed in bold characters the word "offer" on one side and the word "original" on the other. The word "offer" also occurs in other parts of the document. The form in which the order is placed for supply of the goods is thus expressed : Please supply us the goods for which we send you the under noted offers on terms, conditions and prices mentioned therein. 8. Then follows a tabular form for entering the name and address of the purchaser, the nature and quantities of the goods to be supplied, their prices, the mode of despatch and other particulars, and at the bottom of the page is a form of acknowledgment to be signed both by the purchaser and by the agent in whose presence the "offer" is made, which is in these terms : I acknowledge having received a copy of this contract and declare that the contents printed overleaf embody wholly and solely the terms and conditions made between ourselves and yourselves in token whereof we hereto attach our signatures. 9. 9. Overleaf is given a statement of the terms and conditions, running into 17 clauses, the very first of which states : I. Subject to our offer being accepted by you at Katihar, we agree to the terms and conditions mentioned in this page and undertake to take delivery of the goods immediately. Cl. 8, again, runs as follows : 8. We shall not bound (sic) you for this offer unless acceptance at our cost (is) sent to us from Katihar. 10. The clause about delivery and despatch appears thus : 9. This offer is made from . . . . to be delivered at . . . . Railway Station on the basis of free on Rail at Katihar and the rates are for delivery (F. O. R.) at Katihar. Another relevant clause is No. 13 : All goods will be booked at Owner's Risk (i.e., buyer's risk), vide, Railway Risk Note Forms A, B and H. unless otherwise specifically specified by the buyers and as a safeguard for payment of price of the goods, they are to be booked to "Selves" at destinations as usual. 11. Cl. 11 makes the prices "strictly parable at Katihar." 12. It is in evidence, and is in fact not disputed that this contract form was signed by both the Plaintiff and the Defendants' agent at Chittagong, and acceptance was communicated later by the Defendants from Katihar by post. It appears that the blank spaces in cl. 9 of the terms and conditions were not filled up, but in the body of the document on the first page it was stated that the goods were to be despatched to Strand Road, Chittagong Railway Station. 13. There can be no doubt, therefore, upon the facts, that all that took place at Chittagong was not the making of the contract, but only the making of the offer. The question accordingly is whether this may be supposed to constitute part of the cause of action within the meaning of sec. 20, cl. (c) of the Code of Civil Procedure. 14. In the corresponding section of the Code of 1882, a specific Explanation was added regarding causes of action in suits on contracts. The question accordingly is whether this may be supposed to constitute part of the cause of action within the meaning of sec. 20, cl. (c) of the Code of Civil Procedure. 14. In the corresponding section of the Code of 1882, a specific Explanation was added regarding causes of action in suits on contracts. It was in these terms :-- Explanation III.--In suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely :-- (1) the place where the contract was made; (2) the place where the contract was to be performed or performance thereof completed; (3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable. 15. The Explanation has now been omitted, presumably in view of the addition of the words "wholly or in part" in cl. (c). Mr. Mookerjee's contention in effect is that the Explanation, though omitted, still remains a correct statement of the law, and that in a case of contract, we have still to find, if the case does not come under cl. (2) or (3) of the Explanation, whether the contract was made within the jurisdiction. We do not think, however, that upon the words of cl. (c), as they now stand, such a position can be maintained. The true effect of these words was explained by Rankin, C.J., in Engineering Supplies, Ltd. v. Dhandhania I. L. R. 58 Cal. 539 (543-546) (1930), where the learned Chief Justice pointed out that for the purpose of determining where the cause of action, wholly or in part, arises, it is no longer necessary to ask ourselves in what place the contract may be deemed to have been made. The question will depend upon the construction of the words "cause of action." 16. 539 (543-546) (1930), where the learned Chief Justice pointed out that for the purpose of determining where the cause of action, wholly or in part, arises, it is no longer necessary to ask ourselves in what place the contract may be deemed to have been made. The question will depend upon the construction of the words "cause of action." 16. The meaning of "cause of action" has been the subject of a good deal of controversy, but as Rankin, C.J., observed :-- The only definition that will work, if it has to be applied to cases of all kinds, is--the entire set of facts that gives rise to an enforceable claim, or, in the words of Lord Justice Fry, 'everything which if not proved, gives the Defendant an immediate right to judgment', 'every fact which is material to be proved to entitle the Plaintiff to succeed, every fact which the Defendant would have a right to traverse'. 17. This was stated to he the result of many years' consideration, as expressed in the cases of Read v. Brown [1888] 58 L. G. Q. B. 120 and Cooke v. Gill I. R. 6 C. P. 107 (1873). 18. Applying this definition, there is no reason why in a suit for damages for breach of contract, the making of the offer which upon acceptance eventually becomes the contract, should not be regarded as forming part of the cause of action, The first fart which the Plaintiff in such a suit will have to prove before he can succeed is the making of the contract, and the offer is as much an essential element of it as the acceptance. This was in fact the view indicated by Fulton, J., in Dobson and Barlow v. The Bengal Spinning and Weaving Co. I. L. R. 21 Bom. 126 (1896), where at p. 131 the learned Judge observed as follows :-- But if the making of the contract be part of the cause of action, it appears to follow that the act of concurrence of either party which is essential to the contract is itself a part of the cause of action, for without such act of concurrence the contract cannot come into existence. 19. This was approved by Rankin. C.J., in Engineering Supplies, Ltd. v. Dhandhania & Co. I. L. R. 58 Cal. 539 (543-546) (1930). 19. This was approved by Rankin. C.J., in Engineering Supplies, Ltd. v. Dhandhania & Co. I. L. R. 58 Cal. 539 (543-546) (1930). The cases of Borthwick v. Walton [1855] 15 C. B. 501 and Green v. Beach [1873] 8 Ex. Ch. 208 are direct authority for the proposition that an offer is part of the cause of action. See Kuthiravattam Appu Thamban v. R. Poulkes A. I. R. [1920] Mad. 314 and Gopal Das Agarwala v. Hari Kishan Das A. I. R. [1936] All. 314. 20. We must consequently uphold Mr. Das's contention on this point and rule that the Chittagong Court has jurisdiction to entertain the suit. In the view we take on this point, it is not necessary to consider the other branch of the argument by which jurisdiction is claimed on the footing that the goads were to be despatched to Chittagong, though delivery was due at Katihar. 21. We come now to the agreement between the parties by which it is said the jurisdiction of the Chittagong Court was excluded. This agreement is supposed to be expressed in two parts of the document. Reliance is first placed on certain words appearing in print on the top of the first page of the contract form, the words being as follows :-- All actions in respect of this transaction will be triable by the court at Katihar only. 22. Secondly, reference is made to cl. 4 of the terms and conditions printed overleaf, which is in these terms : 4. All payments and other transactions shall and should be deemed to have been effected at Katihar for determining the jurisdiction for any litigation, even if the goods are supplied from any other place other than Katihar. 23. Taking cl. 4 first, we do not think it can be construed as an agreement to confer exclusive jurisdiction on the Court at Katihar. This only means that irrespective of the actual place from which the goods are supplied, the parties agree that payments and other transactions under the contract will be deemed to have taken place at Katihar, and jurisdiction determined accordingly, but as to whether this was to vest jurisdiction solely in the Court at Katihar was another question. This only means that irrespective of the actual place from which the goods are supplied, the parties agree that payments and other transactions under the contract will be deemed to have taken place at Katihar, and jurisdiction determined accordingly, but as to whether this was to vest jurisdiction solely in the Court at Katihar was another question. In other words, the only effect of the agreement was to introduce a sort of fiction as to the place of accrual of the cause of action, and the ordinary law as to jurisdiction was thereupon to operate. 24. In Achratlal Kesavlal Mehta & Co. v. Vijayam & Co. A. I. R. [1925] Mad. 1145 the deed of agreement contained a similar clause expressed in these terms : In all legal disputes arising out of the contract, Ahmedabad will be understood as the place where the cause of action arose. 25. Madhavan Nair, J., refused to construe it to mean that no suit in respect of the contract could be brought in any Court other than one at Ahmedabad, if otherwise competent. "Supposing for instance," said the learned Judge. the Defendants at the time of the institution of the suit happened to reside or carry on business at Madras, that clause--which deals only with the question as to where the cause of action shall be deemed to have arisen--even if given full effect to, could not obviously stand in the way of the suit being instituted at Madras. 26. So in this case, giving full effect to cl. 4, it cannot be said that if the Chittagong Court was otherwise competent, its jurisdiction was taken away. The "other transactions" mentioned in the clause are transactions under the contract, and cannot refer either to the offer or to the acceptance, both of which were prior to the contract. 27. The stipulation appearing at the top of the printed form is no doubt one which purports to confer jurisdiction on the Katihar Court to the exclusion of any other Court, but as to this, it is doubtful whether it could be regarded at all as a part of the terms and conditions of the contract, which in fact were expressly stated to be "wholly and solely" those printed overleaf. Assuming, however, that this was a part of the contract, we have to see how far it could legally divest a Court, otherwise competent, of its jurisdiction. 28. Quite a number of cases were cited before us on one side or the other. It seems to us that if a Court has no jurisdiction under the law, it cannot be vested with jurisdiction by agreement of parties. Similarly, if a Court has jurisdiction, it should not be permissible to parties to deprive it of its jurisdiction by agreement. To allow this would be to allow parties to legislate for themselves against legislation by the State. In support of this proposition, it is sufficient to refer to the cases of Kidri Prasad v. Khosala A. I. R. [1923] Lah. 425, AIR 1929 605 (Lahore) and National Petroleum Co. v. F.K. Rebello A. I. R. [1935] Nag. 48. 29. We do not think that any of the cases cited by Mr. Mookerjee is authority for a contrary view. In AIR 1930 611 (Lahore) , Jai Lal, J., really confirmed the view he had earlier expressed in AIR 1929 605 (Lahore) . It was pointed out that there were two classes of cases: (1) where inspite of the fact that under the ordinary provisions of law a particular Court would have jurisdiction, the parties provided that another Court, to the exclusion of the former Court, shall have jurisdiction to adjudicate upon the disputes arising under the agreement, and (2) cases in which the agreement specified the place where the terms of the contract have had to he carried out, in other words, where, according to the facts stated in the agreement, the cause of action is to be deemed to arise. All that was held was that the agreement in that case being one of the second description, was not illegal, but so far as the first kind of agreements were concerned, the learned Judge left it in no doubt that in his opinion, they were not legal. The observations of Madhavan Nair, J., in Achratlal Kesavlal Mehta and Co., by Proprietor Achratlal and Kesavlal Vs. Vijayam and Co., AIR 1925 Mad 1145 on which Mr. Mookerjee relied, were really obiter, but even so, they do not appear to have the effect contended for. The observations of Madhavan Nair, J., in Achratlal Kesavlal Mehta and Co., by Proprietor Achratlal and Kesavlal Vs. Vijayam and Co., AIR 1925 Mad 1145 on which Mr. Mookerjee relied, were really obiter, but even so, they do not appear to have the effect contended for. The learned Judge no doubt said that in so far as the agreement there meant that all suits in respect of the contract should be brought at Ahmedabad only and not at Madras, it was not void, but the real reason why the agreement was held to be not void was, as the learned Judge himself stated, that the Ahmedabad Court was also a Court which would normally have jurisdiction to entertain such suits. The principle on which that decision was based was in fact thus expressed :-- Where there are two courts both of which would normally have jurisdiction, to try the suit, I do not see why the parties should not be allowed to agree among themselves that a suit should be brought in one of those courts and not in the other. Such an agreement does not, in my opinion, contravene the provision in sec. 28 of the Indian Contract Act, because the Plaintiff is not thereby restricted absolutely from enforcing his rights under or in respect of the contract by the usual legal proceedings in the ordinary tribunals, as the restriction is only partial. 30. In A. Milton & Co. v. Ojha Automobile Engineering Co. I. L. R. 57 Cal. 1230 (1930) the agreement was that "any litigation arising out of this agreement shall be settled in the High Court of Judicature, Calcutta, or in the Small Causes Court, Calcutta, and in no other Court whatsoever." In holding that the clause was not ultra vires and illegal, as being in conflict with sec. 28 of the Indian Contract Act, Lort-Williams, J., merely purported to follow the decision in Achratlal Kesavlal Mehta and Co., by Proprietor Achratlal and Kesavlal Vs. Vijayam and Co., AIR 1925 Mad 1145 but that case, as we have seen, hardly lends support to the extreme contention put forward by Mr. Mookerjee. 31. Among the other cases referred to by Mr. Mookerjee may be mentioned Gopal Das Agarwala Vs. L. Hari Kishan Das, AIR 1936 All 514 , Tilakram Chaudhuri Vs. Kodumal Jethanand Wadhwa, AIR 1928 Bom 175 and The Khandesh Lakshmivilas Mills Co. Vs. Mookerjee. 31. Among the other cases referred to by Mr. Mookerjee may be mentioned Gopal Das Agarwala Vs. L. Hari Kishan Das, AIR 1936 All 514 , Tilakram Chaudhuri Vs. Kodumal Jethanand Wadhwa, AIR 1928 Bom 175 and The Khandesh Lakshmivilas Mills Co. Vs. Vinayak Atmaram Karpurkar, AIR 1935 Bom 198 but none of these are in point. 32. It may be conceded that where jurisdiction is vested in either of two Courts, parties may be allowed by agreement to provide that all suits should be brought in one of such Courts and not in the other. Such an agreement being only a partial restriction of the rights of the parties under the ordinary law may not be hit by sec. 28 of the Indian Contract Act, and would, therefore, not be illegal. It is not necessary, however, for us to express any opinion upon this question, as the agreement in the present case does not happen to be one of this description. It is no doubt stated that all actions in respect of the contract shall be triable by the Court at Katihar only, but it does not appear that the Court at Katihar is a Court of competent jurisdiction for all suits which might arise out of the contract. At Katihar, we are informed, there is only a Munsif's Court, exercising pecuniary jurisdiction up to a limited extent only. The agreement, even it could be regarded as valid in so far as it purported to confer jurisdiction on the Court at Katihar could, therefore, be given effect to only partially, and it is doubtful how far it could, therefore, be regarded as a valid and enforceable agreement. We cannot accept Mr. Mookherjee's contention that the "Court of Katihar" should be held to mean and include a Court exercising jurisdiction in respect of a cause of action arising at Katihar, whether the Court itself is situate at Katihar or not. 33. In this view of the matter, we must hold that the present suit was not triable at Katihar by virtue of the agreement. 34. The result is that the Rule must be made absolute, the orders of the Courts below set aside, and the learned Subordinate Judge of Chittagong before whom the plaint was filed should be directed to proceed with the suit there in accordance with law. 34. The result is that the Rule must be made absolute, the orders of the Courts below set aside, and the learned Subordinate Judge of Chittagong before whom the plaint was filed should be directed to proceed with the suit there in accordance with law. The Petitioner is entitled to his costs in this Court: hearing-fee, 3 gold mohurs. Latifur Rahman, J. 35. This is a Rule under the provisions of sec. 115 of the CPC directed against the order of the learned District judge of Chittagong, dismissing an appeal from an order of the learned Subordinate Judge, dated the 28th June, 1943, returning the plaint for presentation to the proper Court, holding that the cause of action did not arise either wholly or in part in Chittagong. 36. The facts and circumstances which led up to the present proceedings are briefly as follows :-- The Plaintiff carries on business at Strand Road, Chittagong. The Defendants are proprietors of the Katihar Flour Mills and Neugachia Oil Mills, having their registered Office at Katihar in the District of Purnea (Behar). It appears that on the 16th April, 1942, the Defendants' representative, one Jagadamba Prosad Sarma, went to the Plaintiff's place of business at Strand Road. Chittagong, and entered into an agreement with the Plaintiff whereby the Defendants agreed to sell 468 tins of mustard oil weighing 204 mds. and 30 srs. at the rate of Rs. 12 per md. With tin. -13- each, delivery of the goods to be made at Strand Road Railway Station at Chittagong. The said contract was duly confirmed by the Defendants. In terms of the agreement as advance of Rs. 200 was remitted to the Defendants from Chittagong, and the receipt of the same was acknowledged by the Defendants by their telegram, dated the 25th April, 1942. Thereafter, it appears that owing to panic that prevailed in Chittagong due to the possibilities of enemy attack, the Plaintiff considered it unsafe to take delivery of goods in Chittagong. He accordingly on the 9th May, 1942, wrote to the Defendants to despatch the goods for delivery to Messrs. Gopi Lal Chandanmal of Mymensingh. The Defendants promised to comply with the Plaintiff's instruction by their letter dated the 11th May, 1942. He accordingly on the 9th May, 1942, wrote to the Defendants to despatch the goods for delivery to Messrs. Gopi Lal Chandanmal of Mymensingh. The Defendants promised to comply with the Plaintiff's instruction by their letter dated the 11th May, 1942. Thereafter, owing to panicky condition prevailing in Chittagong, the Plaintiff closed his business at Strand Road, Chittagong and wrote to the Defendants on the 17th May, 1942, requesting them to note the change of address and to address all further correspondences at Kucnamau Road, Jodhpur. Subsequently, further correspondence ensued between the Plaintiff and the Defendants and Messrs. Gopi Lal Chandanmal, But the goods were never delivered. 37. Some extracts from the original contract No. 7663/330A, dated the 16th April, 1942, are material and are as follows :-- On the top of the first page of the printed form, appearing in print is "all actions in respect of this transaction will be triable at Katihar Court only." On the next page under the caption of "Terms and Conditions," cl. 4 runs thus : All payments and other transactions shall and should be deemed to have been effected at Katihar for determining the jurisdiction for any litigation, even if the goods are supplied from any other place other than Katihar. 38. It seems that the situation at Chittagong having considerably improved and the Plaintiff having returned to Chittagong and failing in his repeated attempts to get delivery of the goods, he instituted a suit in the Subordinate Judge's Court at Chittagong on the 28th September, 1942, for recovery of damages due on a breach of contract and valued the suit at Rs. 2,020. 39. The Defendants' case was that the cause of action did not arise at Chittagong, as no part of the contract was to be performed at Chittagong and that the place of the contract was at Katihar where the order was accepted, and the place where the contract was to be performed was at Katihar where the goods were dispatched through the common carrier, i.e., the Railway Company, and that all payments were to be made at Katihar. So, no part of the cause of action, either wholly or in part, arose in Chittagong. 40. So, no part of the cause of action, either wholly or in part, arose in Chittagong. 40. The Defendants accordingly took an objection as to the jurisdiction of the Chittagong Court on the ground that the cause of action did not arise, either wholly or in part, at Chittagong, and on that objection issue No. 1 was framed as follows :-- Has this Court jurisdiction to try the suit? Was there any agreement between the parties to submit themselves to the jurisdiction of the Court at Katihar? 41. Then this issue, apparently, was fixed for hearing at the outset and the parties adduced evidence. The learned Subordinate Judge held that the Plaintiff failed to prove that the contract was made at Chittagong, and by his judgment dated the 28th June, 1942, ordered as follows :-- The issue as regards jurisdiction is decided in favour of the Defendants and this Court has no jurisdiction to try the suit. Let the plaint be returned to the filing pleader for presentation to the proper court. 42. From this decision the Plaintiff preferred an appeal and on the 6th August, 1943, the learned District Judge summarily dismissed the appeal. The material portion of his judgment are as follows : . . . . .I take for granted that part of cause of action arose in Chittagong and part arose in Katihar. This at least is conceded by the Appellant. The Defendant resides and carries on business at Katihar. Under sec. 20 C. P. C., both courts have jurisdiction, the court at Chittagong and the court at Katihar. I agree that no contract between private parties can takes away jurisdiction of a court. But when two courts have equal jurisdiction and there is an express contract, as in this case, bet preen the parties that all actions arising out of the contract shall he tried at Katihar, and the Defendant resides at Katihar, it is but just and proper that the suit should be tried at Katihar. 43. It has been contended on behalf of the Petitioner that cl. 4 of the agreement did not take away the jurisdiction of the Chittagong Court or any other Court, nor did it make the Katihar Court the sole forum. Moreover, there was no Court having pecuniary jurisdiction to try the suit at Katihar, as there was only a Munsif's Court at Katihar. 44. 4 of the agreement did not take away the jurisdiction of the Chittagong Court or any other Court, nor did it make the Katihar Court the sole forum. Moreover, there was no Court having pecuniary jurisdiction to try the suit at Katihar, as there was only a Munsif's Court at Katihar. 44. As regards the cause of action, it appears that the lower Appellate Court proceeded on the basis that part of the cause of action arose in Chittagong and part in Katihar, which was conceded by the Appellant. It seems that the Defendants' representative, Jagadamba Prasad Sarma, came to Chittagong at the Plaintiff's office there and entered into the agreement in question by signing in a printed form purporting to be an original offer and containing overleaf certain terms and conditions, amongst them being cl. 4, and in terms thereof money was remitted to the Defendants from Chittagong, and the Defendants acknowledged receipt by telegram from Katihar. In the circumstances, I am of opinion that a part of the cause of action arose in Chittagong and a part in Katihar. In this connection reference may be made to the following : In Green v. Beach [1873] 8 Ex. Ch. 208, where the offer of the Plaintiff was made at Blackburn within the District of the Blackburn County Court, Kelly, C.B. observed thus : the offer though not itself a contract, was, in my opinion, a part of the cause of action. However, the bought note was signed in Blackburn, . . . . . 45. In Engineering Supplies, Ltd. v. Dhandhania I. L. R. 58 Cal. 539 (543-546) (1930), Rankin, C.J., observed : strictly a contract is not a fact but an obligation which may result from a series of facts ; and the learned Chief Justice further agreed with the views expressed by Fulton, J., in Dobson and Barlow, Ltd. v. The Bengal Spinning and Weaving Co. I. L. R. 21 Bom. 126 (1896) which is as follows : if the making of the contract be part of the cause of action, it appears to follow that the act of concurrence of either party which is essential to the contract is itself a part of the cause of action, for without such act of concurrence the contract cannot come into existence. 46. 126 (1896) which is as follows : if the making of the contract be part of the cause of action, it appears to follow that the act of concurrence of either party which is essential to the contract is itself a part of the cause of action, for without such act of concurrence the contract cannot come into existence. 46. Further, in defining the phrase "cause of action," he observed thus : the only definition, that will work, if it has to be applied to cases of all kinds, is the entire set of facts that gives rise to an enforceable claim or, in the words of Lord Justice Fry, "everything which, if not proved, gives the Defendant an immediate right 'to judgment' every fact which is material to be proved to entitle the Plaintiff to succeed, every fact 'which the Defendant could have a right to traverse'. 47. In Sitaram Marwari v. Thompson I. L. R. 32 Cal. 884 (1905), Stephen, J., observed as follows : . . . . the contract on which the suit is brought, was made where the offer and acceptance took place, that is, at Purnlia ; and the action is properly brought there under sec. 17 (a), explanation III of the Code. See also Kuthiravattam v. Foulkes A. I. R. [1920] Mad. 314. 48. Now, regarding the question as to the jurisdiction of the Court, in terms of cl. 4 in the contract, it being conceded that a part Of the cause of action arose in Chittagong and a part in Katihar, the question arises as to whether or not the terms and conditions of cl. 4 of the agreement are enforceable under the circumstances. In Gopal Das Agarwala Vs. L. Hari Kishan Das, AIR 1936 All 514 it was held that where there are two Courts, both of which would normally have jurisdiction to try the suit, the parties may be allowed to agree among themselves that the suit should be brought in any one of those Courts and not in the other. 49. In Achratlal Keswlal Mehta & Co. v. Vijayam & Co. A. I. R. [1925] Mad. 49. In Achratlal Keswlal Mehta & Co. v. Vijayam & Co. A. I. R. [1925] Mad. 1145 where there were two Courts both of which would normally have jurisdiction to try the suit, it was held that the parties may be allowed to agree among themselves that a suit should be brought in one of those Courts and not in the other. Such an agreement did not contravene the provision of sec. 28 of the Indian Contract Act, because the Plaintiff was not therein restricted absolutely from enforcing his rights under or in respect of the contract by the usual legal proceedings in the ordinary tribunal, as the restriction was only partial. See also Austrian Lloyd Steamship Co. v. Gresham Life Assurance Society [1903] 1 K. B. 249, The Khandesh Lakshmivilas Mills Co. Vs. Vinayak Atmaram Karpurkar, AIR 1935 Bom 198 . AIR 1929 605 (Lahore) . AIR 1930 611 (Lahore) . A. Milton & Co. v. Ojha Automobile Engineering Co. 1. L. R. 57 Cal. 1280 (1930), Kirchner & Co. v. Gruban [1909] 1 Ch. Dev. 413. 50. It was urged on behalf of the Petitioner that jurisdiction could neither be vested nor divested by agreement between the parties, and in support the following cases were referred to Tilakram Chaudhuri Vs. Kodumal Jethanand Wadhwa, AIR 1928 Bom 175 , Kidri Prasad v. Khosala A. I. R. [1923] Lah. 425, National Petroleum Co. v. F.K. Rebello A. I. R. [1935] Nag. 48. 51. Upon an examination of relevant authorities, I am of opinion that where in a contract entered into between two parties the cause of action partly arises in one place and partly in another, and the parties agree in terms of the contract that in case of any dispute arising out of the contract it shall be litigated only within the jurisdiction of one particular Court, and where the Courts, in both places have jurisdiction, such an agreement is a valid one and enforceable under the law and the parties are bound by it. 52. As, however, in the present case it appears that the Court at Katihar had no pecuniary jurisdiction to entertain this suit, there being only a Munsif's Court at Katihar which could not take cognizance of a suit valued at Rs. 2020, the principle stated above will not apply. 52. As, however, in the present case it appears that the Court at Katihar had no pecuniary jurisdiction to entertain this suit, there being only a Munsif's Court at Katihar which could not take cognizance of a suit valued at Rs. 2020, the principle stated above will not apply. The agreement will in effect amount to divesting the only competent Court of its jurisdiction and vesting it in another which can have no pecuniary jurisdiction. 53. The orders complained of should accordingly be set aside and the trial Court should proceed with the suit at Chittagong and dispose of it in accordance with law. I therefore agree with the order proposed by my learned brother that the Rule should be made absolute with costs; hearing-fee, three gold mohurs.