JUDGMENT : ( 1. ) THIS appeal and Misc. A. No. 340/81, 341/81 and 342/81 all involve a common question about the jurisdiction of the Court below. ( 2. ) THE present appeal arises out of the order passed by the District judge Seoni in C. S. No. 6/b/71, dated 27-8-1981 filed by the appellant against the respondents. Misc. A. No. 340/81 is an appeal filed against the order passed by the District Judge Seoni in C. S. No. 4-B /74, dated 14-8-1981 filed by the appellant. Misc. A. No. 341 /81 is filed by the appellant plaintiff against the order passed by the District Judge Seoni in c. S. No. 1-B/71, dated 21-8-1981 and Misc. A. No. 342/81 arises out of c. S. No. 3-B/71, dated 14-8-1981, filed by the plaintiff against the order passed by the District Judge Seoni. In all these appeals, the question considered by the Court below is about jurisdiction on the basis of a term in the Insurance Policy which provides that the jurisdiction will be at Bombay or a place where the headquarters of the Insurance Company are situated. ( 3. ) THIS order shall govern the disposal of all these appeals. ( 4. ) IT is not disputed that the cause of action accrued at Seoni, but an objection was raised on the basis of the clause in the Insurance Policy which reads: "in case of any claim arising in respect of the property hereby insured, the same shall be settled and paid in Bombay and the entire cause of action shall be deemed to arise in Bombay and further that all legal proceedings in respect of any such claim shall be instituted in a competent Court in the city of Bombay only. " On the basis of the above clause in the Insurance Policy, the learned Court below held that it had no jurisdiction to try the suit and it could only be tried in the Bombay Court and, therefore, by the impugned Order, directed return of the plaint. ( 5. ) IT was contended by the learned counsel for the appellant that the respondent No. 3 Firm had pledged certain goods and taken advance from the plaintiff bank. ( 5. ) IT was contended by the learned counsel for the appellant that the respondent No. 3 Firm had pledged certain goods and taken advance from the plaintiff bank. These goods lying in the godown, were destroyed by fire and, therefore, the plaintiff bank filed the suit for recovery of the amount against the respondent No. 3 as well as respondents Nos. 1 and 2, as the goods were insured with respondent No. 1 and the insurance was effected by respondent No. 1. It was also alleged that after the incident, the surveyor on behalf of the Insurance Company, the respondent No. 1 surveyed the loss, assessed it and offered for acceptance to respondent No. 3 and the present appellant plaintiff and thereby settled the claim which it was contended by the learned counsel for the appellant, created a fresh agreement where there was no term about jurisdiction. ( 6. ) IT was contended that even originally, so far as the plaintiff appellant is concerned, it was not a party to the agreement, i. e. the Insurance policy, between respondents Nos. 1 and 3. It was also contended that in the suit filed by the plaintiff appellants, the condition of the policy issued by the respondent No. 1 in favour of respondent No. 3 could not be enforced. It was also contended that even if such a condition was incorporated in the policy, it runs contrary to section 46 of the Indian Insurance Act and in view of this section, the competent Court having jurisdiction can try the suit. Learned counsel placed reliance on the decisions reported in Issomahmad Habibiji v. The United India Fire and General Insurance Co. Ltd. Hyderabad AIR 1978 Gujarat 46, Mis. Barbigha Cold Storage Co. (P. J Ltd. v. National Insurance Co. Ltd. and another, AIR 1981 Pat 21 . , Maganlal Devji Mewawala and others v. Satya Narain and others, AIR 1978 All. 455 . and M/s Surajmall Shivbhagavan v. M/s Kalinga Iron Works, AIR 1979 Orissa 126. ( 7. ) IT was contended that apart from section 46 of the Insurance Act, in AIR 1978 Guj. 46 cited above, their Lordships considered the impact of the agreement and held, placing reliance on a decision reported in michael Golodetz and others v. Serajuddin and Co. AIR 1963 S C 1044. ( 7. ) IT was contended that apart from section 46 of the Insurance Act, in AIR 1978 Guj. 46 cited above, their Lordships considered the impact of the agreement and held, placing reliance on a decision reported in michael Golodetz and others v. Serajuddin and Co. AIR 1963 S C 1044. that such a clause in the agreement does not take away the jurisdiction of a competent Court which otherwise had jurisdiction, but is only an agreement between the parties to choose one of the Courts having jurisdiction and although ordinarily such an agreement is given effect to by Courts, but when it appears that by giving effect to such an agreement it is not convenient to the parties and it will not help the cause of justice, effect need not be given to the agreement, as it is the discretion of the Court and the Court which otherwise has jurisdiction to try the suit can try it, as by agreement, the jurisdiction is not ousted. ( 8. ) IT was contended by the learned counsel that admittedly the incident took place within the jurisdiction of the learned District Judge, seoni and that the contract between respondents 1 and 3 and plaintiff and respondent No. 3 took place at Seoni and it is clear that from the point of view of convenience, the Court at Seoni alone will have jurisdiction as all witnesses will be from places within the jurisdiction of the Court at Seoni. It was, therefore, contended that the Court below committed an error of law in holding that it had no jurisdiction to try the suit. ( 9. ) IT was also contended that the suit was filed in 1971 and after more than 10 years, the plaintiff is still asked to go and file the plaint in the court at Bombay where it will be not only inconvenient, but impossible for him to file the suit and proceed with it and produce all the necessary evidence. It was, therefore, contended that the Court below, even on consideration of convenience and cause of justice, ought to have held that the suit is triable in the Court of District Judge, Seoni. ( 10. ) IT was also contended by the learned counsel that in spiff of the fact that AIR 1978 Guj. It was, therefore, contended that the Court below, even on consideration of convenience and cause of justice, ought to have held that the suit is triable in the Court of District Judge, Seoni. ( 10. ) IT was also contended by the learned counsel that in spiff of the fact that AIR 1978 Guj. 46 was cited before the Court below and this decision considers the impact of section 46 of the Indian Insurance Act, still the learned District Judge chose not to consider the impact of section 46, nor did he consider the question of convenience and the interest of justice and after 11 years, passed the order directing the return of the plaint. ( 11. ) LEARNED counsel appearing for the respondent Insurance Co. contended that there is a clear warranty clause in the Insurance Policy which not only makes all disputes referable to Bombay Courts, but provides that all cause of action where from it may accrue, shall be deemed to have accrued in Bombay and it was contended that this clause has to be given effect to as it is a term of the contract between the parties. As regards section 46 of the Indian Insurance Act, it was contended that it will not apply to local companies as insurer has been defined in section 2 (9) of the indian Insurance Act and the language used in this section clearly goes to show that the Courts in India will have jurisdiction to try the suit. It was, therefore, contended that reading the language of section 2 (9) and section 46, it appears that this provision was only made for foreign companies transacting business in India so that the terms in the policy making the disputes subject to jurisdiction of Courts outside India, may not be given effect to and, therefore, in this provision, it was provided that Courts in india will have jurisdiction and payments to be made under the policy shall be made in India. It was, however, contended that although this question has been considered in the decision reported in AIR 1978 Gujarat 46 and other decisions relied on by the learned counsel for the appellant, as there is no decision of this Court, the question does deserve consideration in view of the language of sections 2 (9) and 46 of the Indian Insurance Act. ( 12. ( 12. ) IT was also contended by the learned counsel that although the present plaintiff is not a parly to the contract, yet in substance the plaintiff is trying to recover what respondent No. 3 is entitled to get from respondent No. 1 under the policy and, therefore, the terms of the policy will have to be given effect to. It was also contended that if the parties enter into an agreement to have exclusive jurisdiction in a particular Court, it could not be said that that agreement cannot be given effect to. Reliance was placed by the learned counsel on the decision reported in Hakamsingh v. M Is. Gammon (India) Ltd. AIR 1971 S C 740. ( 13. ) SECTION 46 of the Insurance Act reads as under : "46. Application of the law in force in India to policies issued in india. The holder of a policy of insurance issued by an insurer in respect of insurance business transacted in (India) after the commencement of this Act shall have the right, notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto, to receive payment in (India) of any sum secured thereby and to sue for any relief in respect of the policy in any Court of competent jurisdiction in (India), and if the suit is brought in (India) any question of law arising in connection with any such policy shall be determined according to the law in force in (India): (Provided that nothing in this section shall apply to a policy of marine insurance ). " This provision specifically enacts that notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto to receive payment the Court of competent jurisdiction in India will have jurisdiction to entertain the suit. ( 14. " This provision specifically enacts that notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto to receive payment the Court of competent jurisdiction in India will have jurisdiction to entertain the suit. ( 14. ) ON the basis of the words court of competent jurisdiction in india, it was contended by the learned counsel that this was enacted only for foreign companies who, in their policies, had a clause of payment of money at the Headquarters of the Companies, but it could not be disputed that this provision provides that in spite of a contract to the contrary or a condition in the policy, the suit can only be tried in the Court of competent jurisdiction in India and applying this test, it is not disputed that so far as the present suit is concerned, the only Court competent to try the suit is Seoni as the whole of cause of action accrued at Seoni. ( 15. ) IT was also contended that the term insurer used in this section has been defined in section 2 (9) of the Act and an attempt was made on the basis of this definition that it applies to only an Insurance Company incorporated outside India. ( 15. ) IT was also contended that the term insurer used in this section has been defined in section 2 (9) of the Act and an attempt was made on the basis of this definition that it applies to only an Insurance Company incorporated outside India. Section 2 (9) of the Insurance Act reads as under: " (9) insurer means :- (a) any individual or unincorporated body of individuals or body corporate incorporated under the law of any country (other than India carrying on insurance business not being a person specified in subclause (c) of this clause) which- (i) Carries on that business in (India), or (ii) has his or its principal place of business or is domiciled in (India), or (iii) with the object of obtaining insurance business, employs a representative, or maintains a place of business, in (India); (b) any body corporate (not being a person specified in subclause (c) of this clause) carrying on the business of insurance, which is a body corporate incorporated under any law for the time being in force in (India), or stands to any such body corporate in the relation of a subsidiary company within the meaning of the Indian Companies act, 1913, as defined by sub-section (2) of section 2 of that Act; and (c) any person who in (India) has a standing contract with underwriters who are members of the Society of Lloyds whereby such person is authorized within the terms of such contract to issue protection notes, cover notes, or other documents granting insurance cover to others on behalf of the under writers, (but does not include principal agent, chief agent, special agent, or an insurance agent) or a provident society (as defined in Part III ). " Sub-clause (b) of this definition clearly provides for the Company incorporated in India and, therefore, even on the basis of this definition, it could not be said that this provision contained in section 46 will not apply to an indian Company. " Sub-clause (b) of this definition clearly provides for the Company incorporated in India and, therefore, even on the basis of this definition, it could not be said that this provision contained in section 46 will not apply to an indian Company. It is, therefore, clear that in view of the language of section 46, in spite of the contract to the contrary or any term in the policy, the competent Court which has jurisdiction to try the suit will alone be competent to try it and on the basis of the contract or term of the policy, it could not be said that the Court mentioned in the term of the policy, or the contract will be the only Court which will have jurisdiction to try the suit. ( 16. ) IT is unfortunate that the learned District Judge disposed of these suits and returned the plaints for presentation to proper Court without considering the provisions contained in section 46 of the Insurance Act. This question was considered by the Division Bench of the Gujarat High court reported in Issomahmad Habibiji v. The United India Fire and General insurance Co. Ltd. Hyderabad (supra), wherein the learned Judges, after quoting section 46 of the Insurance Act, came to the conclusion that in view of the language of section 46, coupled with section 2 (9) (b), it could not be said that the clause in the policy or in the contract will oust the jurisdiction of the competent Court which otherwise has jurisdiction to try the suit. Learned counsel for the appellant contended that similar view has been taken in M/s Surajmall Shivbliagwan v. M/s Kalinga Iron Works (supra), M/s Barbigha Cold Storage Co. (P.) Ltd. v. National Insurance Co. Ltd. and another (iupra), Maganlal Devji Mewawala and others v. Satya Narain and others (supra ). Learned counsel for the respondents frankly conceded that there is no other decision which has taken a contrary view. ( 17. ) IT was also contended by the learned counsel for the appellant that even apart from section 46, an agreement does not oust the jurisdiction of the competent Court. Learned counsel for the respondents frankly conceded that there is no other decision which has taken a contrary view. ( 17. ) IT was also contended by the learned counsel for the appellant that even apart from section 46, an agreement does not oust the jurisdiction of the competent Court. It is effective only where two courts have jurisdiction and by agreement, parties can agree for jurisdiction of one of them, but in the present case, it is not disputed that no part of the cause of action accrued outside the jurisdiction of Seoni Court and, therefore, the jurisdiction of the Seoni Court could not be ousted merely on the basis of a contract or a term in the policy. The Division Bench of the Gujarat High court in the case noted above also considered this question and placing reliance on a decision reported in Michael Golodetz and others v. Serajuddin and Co. (supra) held as under: "it was pointed out that as per the settled legal position, even under a contract, if the parties selected one of the two competent forums, that did not amount to ouster of the jurisdiction of the ordinary courts. Therefore, such a contractual stipulation, in favour of which court would have prima facie a great leaning for upholding the solemnity of the contract so as to bind the parties to their own bargains, could never operate as an absolute bar to the jurisdiction of the competent Court. Therefore, the competent Court would always have a discretion Jo resolve this question by taking into consideration this stipulation as only one of the factors which would be given great weight as the parties had selected a particular forum, but ultimately the question would have to be decided not by treating the stipulation as if there was an absolute bar to the existence of jurisdiction but as one of the factors to be considered for exercise of the jurisdiction on sound judicial principles. " ( 18. ) IT is, therefore, clear that even without section 46 of the Insurance Act, the Court below had to consider on the basis of convenience and in the interest of justice, whether to exercise jurisdiction or not and in coming to this conclusion, the Court had to weigh various circumstances and the agreement or a term in the policy is one of such circumstances for considerations. But it could not be said that the term or the agreement will oust the jurisdiction of a Court which otherwise is competent to try the suit. ( 19. ) IN the light of the discussion, therefore, the view taken by the learned District Judge that he had no jurisdiction to try the suit is contrary to law. The appeal is, therefore, allowed. The order passed by the learned court below it set aside and the case is sent back to the Court below for its trial in accordance with law. It is unfortunate that only this question has ultimately resulted in the delay of the suit for about 10 years and it is, therefore, directed that the Court below shall proceed to decide the suit expeditiously. Appellant shall also be entitled to costs of this appeal from the respondent No. 1 only. Counsels fee Rs. 300. 00, if certified. Appeal allowed.