Y. K. Sabharwal, J. ( 1 ) BRIEFLY, the plaintiff s case is that an arrangement was arrived at between it and the defendants who carry on business among others as silver merchants, dealers and agents at Ahmedabad for sale of plaintiff s silver bars on commission basis. According to the plaintiff the arrangement was that the defendant would send his orders to the plaintiff !or supply of silver bars on consignment basis for sale in Ahmedabad. Orders were given by the defendants on telephone or by letter quoting the market rate available, immediately, on receipt of the orders, the plaintiff would despatch the silver bars by train or through passenger with a covering note containing the number, weight and other details of the silver bars On receipt of the silver bars the defendant was to send the sale bills containing the sale proceeds and other expenses incurred by him in connection with each transaction and remit the net amount (after deduction of his commission) by a bank draft or cheque drawn in favour of the plaintiff either payable in Delhi on according to plaintiff s instructions. A running account was maintained by both the parties indicatfing the sale proceeds, remittances and other expenses. The silver bars sent by plaintiff to defendants at Ahmedabad were sold by defendants on commission basis. Plaintiff claims that a total amount due from defendants on account of outstanding balance and interest upto date of the suit is Rs. 3,03,640-07 p. Plaintiff further says that the cause of action arose within the jurisdiction of this court at Delhi : (I) Where orders placed by defendants for supply of silver bars were received by the plaintiff and from where the bars were supplied in compliance with the said order ; (II) The account of sale proceeds and expenses was to be rendered by the defendants to the plaintiff and was so rendered om time to time, and (III) Where the payment was to be made and in fact was so made by the defendantby bank drafts or cheques drawn in favour of the plaintiffs on banks in Delhi or in accordance with the instructions issued by the plaintiffs from Delhi. ( 2 ) THE defendants have, inter-alia, pleaded that the plaintiff supplied the silver bars to the defendants at Ahmedabad, that the defendants sold the same as the plaintiff s commission agent at Abmedabad, that the payments were made by the defendants to the plaintiff at Ahmedabad and that defendants carry on business at Ahmedabad. They say that no part of the alleged cause of action for the suit has arisen within the jurisdiction of this Court. that defendants or any of them do not reside or work or gain within the jurisdiction of this court and as such this Court has no jurisdiction to entertain and try the suit Defendants further ;-ay that under the agreement between the parties the transaction on which the plaintiff s claim of the suit is based were subject to Ahmedabad jurisdiction and, thercfore, the jurisdiction, if any, of this court to entertain and try this suit is decided by the agreement between the parties. ( 3 ) ON the pleadings of the partics the following issues were framed 1 "whether the payment of Rs. 2 lacs was made by the defendants on 6-2-1989 and Rs. I lac on 29. 2. 80 ? OPD 2. What is the legal effect of there turn of silver bars by the defendants 21/2 months after the due date ? OPP 3. Whether the defendants were entiled to the commission over and above Rs. l. 00 per kilo or any other charges or to pay lax as agreed between the parties ? OPP 4, Whether the defendants are liable to pay a sum of Rs. 3,03,640-07 or any other sum ? OPP 5. Whether Shri Satish Bansal is Director of the plaintiff company and is duly authorised person to file the suit ? OPP 6. Is defendant No. 2 a partner of defendant No. 1 firm ? OPD 7. Whether the court has no jurisdiction (territorial) to try the suit ? OPP , 8. Whether the plaintiff is entitled to any interest? lf so, at what rate ? OPP 9. Relief. " ( 4 ) DEFENDANTS have not produced any evidence. Apart from the documentary evidence the plaintiff has produced two of its directors as witness, Public Witness-1 Mr. Satish Bansal and Public Witness-2 Mr. Puran Mal. Mr, K. N. Bhatt. OPP , 8. Whether the plaintiff is entitled to any interest? lf so, at what rate ? OPP 9. Relief. " ( 4 ) DEFENDANTS have not produced any evidence. Apart from the documentary evidence the plaintiff has produced two of its directors as witness, Public Witness-1 Mr. Satish Bansal and Public Witness-2 Mr. Puran Mal. Mr, K. N. Bhatt. learned counsel for the defendants conceded in favour of the plaintiff all issues except Issue No. 7 relating to territorial jurisdiction. In view of the concession of learned counsel. Issues "nos. I to 6 and 8 are answered in favour of the plaintiff and against defendants. ( 5 ) THE onus to prove the issue is on the defendants. They have no: produced any evidence. However, Mr, Bhatt has put forth following two contentions:- (I) No part of cause of action has arisen in Delhi; defendants or any of them do not reside or work for gain within the jurisdiction of this court ond as such this court has no jurisdiction to entertain and try the suit. (II) Assuming the first contention is decided against the defell dants the jurisdiction of this court to entertain this suit is ousted by the agreement between the parties. ( 6 ) LEARNED counsel sdbmits that aforesaid contentions stand proved from the evidence produced by the plaintiff. On the other hand Mr. Lala Ram Gupta, learned counsel for the plaintiff submits that part of cause of action has arisen in Delhi and, therefore, this court has jurisdiction to tryand entertain this suit. Mr. Gupta further submits that there is no agreement between the parties ousting the jurisdiction o? this court. Parties were never at ad idem on the ouster clause on the sale notices. Counsel submits that defendants had rather agreed lhai the printed clause on (be sale note" will not be acted upon. ( 7 ) DEFENDANTS do not reside or work tor gain within the local limits of this court and as such Section 20 (a) and (b) of Code of Civil Procedure has no applicability. Under Section 20 (c) a suit can be instituted in a court within the local limits of whose jurisdiction, the cause of action, wholly or in part arises. Plaintiff has invoked Section 20 (c) of the Code. Under Section 20 (c) a suit can be instituted in a court within the local limits of whose jurisdiction, the cause of action, wholly or in part arises. Plaintiff has invoked Section 20 (c) of the Code. It says that the contract between the partics was entered into at Delhi; it was partly performed at Delhi as silver was sent from Delhi; money was payable at Delhi ; breach of the contract had taken place at Delhi and that ihe accounts were to be rendered bydefendants to the plantiff at Delhi. Defendants have disputed each of the aforesaid factors. They contend that no part of the cause of action has arisen at Delhi. ( 8 ) THE expression cause of action means the whole bundle of material facts which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit. The jurisdiction of the court in a matter of contract will depend upon the citus of the contract and the cause of action arising through connecting factors (See: A. B. C. Laminart Pvt. Ltd. and AM. V. A P. Agencies, Salem 1989 Vol. 2 Judgments Today SC (38 ). In cases relaling to contracts:- (1) suit may be filed either at a place of making of the contract or place where contracts should have been performed and the breach occurred ; (b) in caseg of repudiation the place where repudiation is received is the place where suit would lie ; (c) in a suit for agency action the cause of action arises at a place where the contract of agency was made or the place where the accounts are to be rendered and payment is to be made by the agent and suit can be filed at either of such places. Part of the cause of action arises where money is expressly or impliedly payable under the contract. ( 9 ) ONE of the plea of the plaintiff is that the payment was to be made and in fact was so made by the defendants by bank drafts or cheques drawn in favour of the plaintiff at banks in Delhi or in accordance with instructions issued by the plaintiff from Delhi. In other words, the plea is that. money was payable to plaintiff at Delhi. Public Witness-1. Mr. In other words, the plea is that. money was payable to plaintiff at Delhi. Public Witness-1. Mr. Satish Bansal, one of the directors of the plaintiff company has deposed that payment was to be made by the defendants either by depositing it in plaintiff s account in Ahmedabad or by sending the same to it in Delhi by bank drafts. Public Witness-2 Mr. Puran Mal, another director of the plaintiff company has deposed that he had to!d defendant No. 2 that payment should be made at Delhi and that defendant No 2 told him that defendants would be sending the payments to the plaintiff by bank draft in Delhi, in short. Public Witness-1 and Public Witness-2 have deposed that amount received on sale of silver was payable to plaintiff at Delhi. The testimony of these two witnesses has remained unrebutted Defendants have opted not to enter the witness box or produce any other evidence in the suit. Mr Bhatt, learned counsed for the defendants, contends that plaintiff s witnesses have not given any particulars about the oral arrangement or agreement and have not given date of the said oral arrangement and as such their testimony that the amount was payable at Delhi cannot be relied upon. In my opinion there is no merit in the contention of the learned counsel or in his criticism of the testimony of the witnesses of the plaintiff. The witnesses were referringto the oral arrangement or agreement arrived at between the parties at the start of their business dealings. Learned counsel for the defendants also submits that payments were either deposited in the bank account of the plaintiff at Ahmedabad or were sent to plaintiff by bank draft. He further contends that post office or the hank as the case may be were the agents of she plaintiff and sending of the bank draft, to Delhi is riot a connecting factor or a material fact giving rise to part of cause of action and as such is not a relevant factor for determining whether part of cause of action within the jujbrisdiction of local limits of this court has arisen or not. Plainlift is not claiming the jurisdiction of this Court only on account of bank drafts having been sent to it at Delhi. Plainlift is not claiming the jurisdiction of this Court only on account of bank drafts having been sent to it at Delhi. Accorduig to plaintiff amount was payable at Delhi and its case stands proved from the unrebutted depositions of Public Witness-1 and Public Witness-2 and as such the contention that the post office or the bank is an agent of the plaintiff, in facts of the case, is not irrelevant. The plaintiff has proved that according to agreement place of payment was Delhi Even otherwise, the onus to prove that this court has no jurisdiction was on the defendants and they did not produce any evidence to discharge the said onus. In view of the above, there is no force in the first contention of the learned counsel for the defendants. ( 10 ) IT is now well settled principle that where there may be two or more competent courts it can entertain a suit consequent upon a part of the cause of action having arisen there-within, if the pasties to the contract agreed to vest jurisdiction in one such court, to try the dispute which might arise as between themselves, the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague it is not hit by Section 23 and 28 of the Contract Act. This cannot be understood as parties were contracting against the Statute. Mercantile law and practice permit such agreements (ABC Laminart s case ). After the sale of silver bars defendants used to send to the plaintiff sale notes on their printed forms. Ex. P-3 and P-4 are such sale notes. The words printed on the top on sale notes Ex. P-3 and P-4 on which defendants rely are "subject to Ahmedabad jurisdiction" These words were printed on all the sale notes which were sent by defendants to the plaintiff. Defendants contendthat these printed words on sale notes show that the parties had agreed that the courts at Ahmedabad alone will have jurisdiction to entertain any dispute arising between the parties and, therefore, in any case this court will have no jurisdiction to entertain the suit. ( 11 ) IT is a question of fact to be determined in each case whether parties had agreed or not to exclude the jurisdiction to a particular court which is otherwise a court of competent jurisdiction. ( 11 ) IT is a question of fact to be determined in each case whether parties had agreed or not to exclude the jurisdiction to a particular court which is otherwise a court of competent jurisdiction. Plaintiff was aware of the printed term on the sale notes. There is also no doubt that the suit is based on the sale notes. Sale notes Ex. P-3 and P-4 have been filed by the plaintiff but these notes on which reliance is placed by the defendants by itself are not decisive and have to be considered in the light of other evidence on record. The other evidence on which plaintiff relies is the statement of Public Witness- 2 Sh. Puran Mal. He has deposed that "i had seen the sale notes sent by defendant No. I in regard to earlier consignment. It was printed on the top of such sale note that the transaction was subject to jurisdiction of Ahmedabad court. Thereupon, I had talked to defendant No. 2 but he told me that this was only meant for those to whom defendant No. I supply goods and would not apply to us and that we should have no concern with it. I relied what was told to me by defendant No. 2 and took that the jurisdiction clause was not applicable to us. During our talks, defendant No 2 had never told me that in case of disputes the jurisdiction would be only of Ahmedabad courts. I say that no such agreement was arrived at between the plaintiff anddefendant No. 1. " To some what similar effect is also the statement of Public Witness-L The aforesaid depositions have remained unrebutted. None of the defendants have entered the witness box to contradict the statements of Public Witness-1. and Public Witness-2 and I find no inherent fallacy in their depositions so as to disregard their statements. ( 12 ) THE exclusion of jurisdiction of a court which is otherwise a court of competent jurisdiction is not to be readily inferred. It is to be specificallly pleaded and proved. On this aspect defendants pleadings are present but proof is absent. In the ouster clause the words like alone , only exclusive and the like have not been used. It is to be specificallly pleaded and proved. On this aspect defendants pleadings are present but proof is absent. In the ouster clause the words like alone , only exclusive and the like have not been used. In Judgment referred to earlier even without such words in appropriate cases she maxim expressio unius est exclusio alterius" -expression of one is the exclusion of another may be applied. What is in appropriate case shall depend upon the facts of the case. Defendants have not proved those facts They have not produced any evidence They have failed to prove that on facts it is an appropriate case for the application of the aforesaid maxim. In the facts and circumstances of the case it cannot be held that the jurisdiction ol Delhi Courts was expressly or even impliedly excluded. ( 13 ) IN view of the above discussion. Issue No. 7 is decided against the defendants. ( 14 ) FOR the reasons aforesaid, I pass a decree in favour of the plaintiff and against the defendants for Rs. 3,03,640-70 ps with costs and interest at the rate of 12% p. a. from the date of the suit till realisation.