M/S. SAVANI TRANSPORT (P) LTD v. GANGADHAR GHOSH — 1986 DIGILAW 135 (CAL)

A. M. BHATTACHARJEE, J. ( 1 ) THE suit against the carrier for compensation in respect of the goods consigned, which has given rise to this appeal, was filed by the plaintiff in the City Civil Court of Calcutta and has been decreed by learned Judge of that Court, notwithstanding an agreement between the parties to the effect that "the contract shall be deemed to have been entered and made with the Administrative and Head Office of the Company at Bombay and that "the Courts in Bombay alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport". The Head Office of the defendant carrier Company being in Bombay and the goods having been consigned for delivery in Calcutta, the Courts both in Bombay and Calcutta would ordinarily have jurisdiction to try the suit. The law is now well settled, and more so after the decision of the Supreme Court in Hakam Singh v. Gammon (India) Ltd. , AIR 1971 SC 740 , that when two or more Courts have under the law jurisdiction to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried only in one of such Courts is a valid agreement being neither hit by S. 28 of the Contract Act nor opposed to public policy under S. 23 of the Act. Such an Agreement is of so much efficacy that if any suit is filed in any other-court in violation of such agreement and the aggrieved party successfully pleads and proves such agreement, the Court would have to order return of plaint for presentation to the proper Court. ( 2 ) THE learned Judge, however, thought that the plaintiff was not a party to the agreement as he was neither the consignor nor the consignee, but received the consignment notes through a Bank to which these were sent by the consignor and was, therefore, not bound by the agreement. The learned Judge failed to note that the goods were sent by the consignor as the agent and at the direction of the plaintiff and the plaintiff was, therefore, bound by the agreement as the consignor was. The learned Judge failed to note that the goods were sent by the consignor as the agent and at the direction of the plaintiff and the plaintiff was, therefore, bound by the agreement as the consignor was. In that view of the matter, and under the law as noted hereinbefore, the learned Judge ought to have held that the suit was to be instituted only in a Court in Bombay. ( 3 ) BUT as already noted, the suit has been fully tried and disposed of by the Calcutta court notwithstanding the agreement that it was to be tried in Bombay. And this at once gives rise to the pertinent question that even assuming that the Calcutta Court was wrong in ignoring the contract and in holding the said to be inapplicable, is the decree liable to be reversed or varied by the appellate Court solely on the ground that the Calcutta Court was wrongly chosen as the place of suing in violation of the agreement to file the suit in a Court in Bombay? To put it differently, is the decree of a competent Court liable to be set aside solely on the ground that the suit was not filed in a Court wherein it was to be filed according to the agreement between the parties to the suit? ( 4 ) THE question in our view would be fully covered by the provisions of S. 21 (1) of the Civil P. C. , and would have to be answered in the negative if the expression "place of suing" in S. 21 (1) would also mean a place of suing as agreed upon by agreement between the parties. The point, however, does not appear to have been directly decided in any reported decision of this Court or the Supreme Court. S. 21 (1) runs thus :-"no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice". ( 5 ) THEREFORE, as pointed out by the Supreme Court in Pathumma v. Kuntalan, AIR 1981 SC 1683 at p. 1684, no objection as to the place of suing can be entertained by an appellate or revisional Court unless the following three essential conditions are satisfied, namely, (1) the objection was taken in the Court of the first instance, (2) it was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement, and (3) there has been a consequent failure of justice. ( 6 ) IN this case the first two essential conditions, as noted above, have been satisfied as the objection to the place of suing was admittedly taken in the court of first instance in the written statements and appropriate issue was duly framed. The third condition, which must also co-exist, does not, however, appear to have been satisfied as there is nothing on record, nor the learned Advocate appearing for the appellant could suggest anything, to show that because of the suit having been tried at Calcutta, there has been any consequent prejudice on merits or any failure of justice. The objection on behalf of the appellant as to the place of suing having been at Calcutta, in derogation of the agreement to sue at Bombay cannot, therefore, be entertained by the appellate Court in view of the provisions of S. 21 (1) of the Civil P. C. if the expression "place of suing" in S. 21 (1) also includes a place where the parties have agreed to sue by and under an agreement between them. The question, therefore, is whether the expression "place of suing" in S. 21, Civil P. C. has been used to mean place of suing as to be determined in accordance with the preceding Sections being Ss. 15 to 20 of the Civil P. C. and not a "place of suing" as settled by agreement between the parties. In other words, would S. 21 rule out an objection as to the place of suing only when it is in violation of the preceding Sections relating to determination of place of suing, but not an objection as to the place of suing resorted to in violation of any private agreement between the parties? We have no doubt that we must answer the question in the negative. We have no doubt that we must answer the question in the negative. If, in the absence of resultant failure of justice, an appellate Court is debarred under S. 21 to entertain an objection that the suit ought to have been filed in some other Court, it would make no difference in principle whether the suit was to be filed in such other Court under the provisions of the preceding Sections or under a private agreement between the parties. When a suit, which under an agreement between the parties was to be filed in a particular court, is filed in some other Court and the other party objects on that score, the objection is nevertheless an "objection as to the place of suing" within the meaning of S. 21. We find no justification to restrict the meaning of the expression "objection as to the place of suing" in S. 21 only to the objection as to the place of suing on one of the several grounds arising out of non-compliance with the preceding Ss. 15 to 20 and in our view the expression would cover all objections as to the place of suing which are essentially territorial. ( 7 ) A Division Bench of the Punjab High Court had to consider this very question in Dina Nath Dutt v. Maha Vir Gupta, AIR 1958 Punj 289 and the decision fully supports the view that we are taking in this case. The Divisional Bench observed that when a party objects that the Courts in place "a" cannot proceed with the trial of a suit because the parties agreed to have the dispute decided by the Courts in place "b", "this simply means that whatever objection is raised to the trial of the suit by Courts in territory 'a', it relates to place of suing and cannot be divorced from that expression" and "there seems to be no reason why S. 21 will not apply when such an objection emerges out of an agreement between the parties". While respectfully agreeing with this view we would like to point out if a suit filed at a place in violation of the provisions relating to place of suing contained in Ss. While respectfully agreeing with this view we would like to point out if a suit filed at a place in violation of the provisions relating to place of suing contained in Ss. 15 to 20 of the Civil P. C. is entitled to the protection of S. 21, it would be difficulty to understand the reason as to why such a suit filed at a place in violation of a private agreement as to the place of suing would be deprived of the protection of that Section. A private agreement cannot obviously have any higher sanctity than a public legislation. We are also inclined to think that our view finds support from the observations - of the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 where the Supreme Court (at 342) in explaining the reasons behind S. 21 observed thus :-"the policy underlying Ss. 21 and 99, C. P. Code and S. 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the Legislature has been to treat objections to jurisdiction, both territorial and pecuniary, as technical and not open to consideration by an appellate Court unless there has been prejudice on merits. " ( 8 ) NOW, if as pointed out by the Supreme Court in the observations quoted above, the object of S. 21 is to shut out, in the absence of failure of justice, all objections to the trial of a suit on technical ground, then an objection on the ground of violation of an agreement as to the place of suing would be shut out, because such an objection, which does not obviously go to the merits of a case but is essentially territorial in nature, is also to be regarded as a technical ground. ( 9 ) A Division Bench decision of the Mysore High Court in New India Assurance Co. v. T. K. Nanjunda, AIR 1964 Mys 147 has no doubt struck a different note and has observed (at 154) that in view of the preceding Ss. ( 9 ) A Division Bench decision of the Mysore High Court in New India Assurance Co. v. T. K. Nanjunda, AIR 1964 Mys 147 has no doubt struck a different note and has observed (at 154) that in view of the preceding Ss. 15 to 20 of the Civil P. C. laying down different rules as regards the place of suing, it is to be held that "s. 21 refers to what is popularly known as territorial or local jurisdiction and the objection contemplated therein is restricted to the infringement of any of the requirements contained in the provisions of Ss. 16 to 20 of the Code" and "so the objection about the 'place of suing' in the present case is not covered by S. 21 of the Code as it is based on a term of contract between the parties". In that Mysore case, however, the proceeding was not tried on merits and the matter came up before the High Court against the decision of the District Judge on the preliminary objection as to the proper place of suing. To such a case, S. 21 can have no manner of application as the words "unless there has been consequent failure of justice" occurring at the end of S. 21 would make it irresistibly clear that the Section would come to operate only when the case has been tried on merits. Where, as in that case, the order appealed against decides only the objection as to the place of suing as a preliminary point and the aggrieved party having come up in appeal before the trial could proceed any further, there has been no trial on merits to attract the expression "unless there has been a consequent failure of justice" occurring in S. 21 and, therefore, the Section itself can have no manner of application. The words "unless there has been a consequent failure of justice" occurring at the end of S. 21 clearly indicate that the Section would fall for consideration only when the suit has already been tried on its merits. The relevant observations in the decision of the Mysore High Court in New India Assurance Co. (supra) were, therefore, not at all necessary for the determination of the case and were clearly in the nature of obiter. The relevant observations in the decision of the Mysore High Court in New India Assurance Co. (supra) were, therefore, not at all necessary for the determination of the case and were clearly in the nature of obiter. At any rate, we, with respect, express our dissent from the view expressed in those observations and we are also inclined to think that in view of the observations of the Supreme Court in Kiran Singh v. Chaman Paswan ( AIR 1954 SC 340 at p. 342) (supra), quoted hereinbefore, these observations in the Mysore decision cannot be regarded to be good law. We accordingly overrule the contention of the learned Advocate for the appellant that the decree passed by the learned trial Judge is liable to be set aside on the ground that the suit was not instituted in the agreed forum. ( 10 ) ON the merits, however, the appellant, in our view, has made out some case for consideration. As noted at the outset, the suit, giving rise to this appeal, was filed by the plaintiff against the defendant carrier Company for compensation in respect of carriage of goods. The plaintiff, figuring as the sole witness, has tried to make out a case that the entire goods were lost and claimed full compensation for the entire goods which has been decreed by the learned trial Judge. The open delivery certificates granted by the defendant-appellant are Exts. 17 and 17 (a) and these are duly signed by the plaintiff also. These certificates show that though all the 20 bags consigned were found in damaged condition, only 52 kgs. of the goods were found short. There should, therefore, be no doubt that the plaintiff is entitled to compensation for these 52 kgs. of goods. But the plaintiff has tried to make out a case that the entire goods received were found to be so damaged that those had to be thrown away as waste. The plaintiff has stated that he engaged a surveyor for the purpose who found the goods to be entirely unfit. But neither such a case has been made out in the plaint or any of the correspondence nor any such surveyor has been examined by the plaintiff as his witness. The plaintiff has stated that he engaged a surveyor for the purpose who found the goods to be entirely unfit. But neither such a case has been made out in the plaint or any of the correspondence nor any such surveyor has been examined by the plaintiff as his witness. We have not been able to trace any evidence on the record as to the nature, extent or condition of the damage of the goods received by the plaintiff. The plaintiff has also asserted that "our stock-register will show that we have shown the consignment as destroyed against nil receipt after we throw the entire consignment into Ganga". But no such stock-register has been produced either. Under these circumstances, we find that there is dependable evidence only for the short delivery of 52 kgs. of the goods consigned as admitted by the defendant in the open delivery certificates - Exts. 17 and 17 (a) and the plaintiff is entitled to compensation for the same. But as we find no reliable evidence to show the nature, condition or extent of the damages of the remaining portion of the goods received, we do not think that the claim of the plaintiff for any further amount can be sustained. The price for 52 kgs. of the goods at the admitted rate would be Rs. 913. 16 paise only. We, therefore, allow the appeal, though not in full but in part, and vary the decree passed by the learned Judge and grant a decree for Rs. 913. 16 paise only to and in favour of plaintiff together with proportionate costs. The decree under appeal would stand modified accordingly. No costs for the appeal. SUKUMAR CHAKRAVARTY, J. :- I agree. Appeal partly allowed.