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1995 DIGILAW 134 (MAD)

Steel Suppliers Pvt. Ltd. v. Syed Hameed

1995-01-31

SRINIVASAN, SUBRAMANI

body1995
Judgment :- Srinivasan, J. The only question before us is whether the Court in Madras has jurisdiction to deal with the suit filed by the respondent herein. 2. The respondent sent a letter dated June 20, 1983 referring to the discussions which it had on 18th and 19th of June and confirmed, having agreed to supply earth to the appellant for filling job on the terms and conditions set out therein. In the last paragraph, it is stated as follows: “I hope you will find the above in order. I have to request you to kindly furnish me your letter of confirmation along with advance money to enable me to start supplies”. The appellant sent a reply on June 25, 1983 in its letter head. The Body of the letter reads thus, “We are in receipt of your questions dated 20th June 1983. We have the pleasure of confirming your quotation. We enclose herewith our Demand Draft No. 979813-2560/83 dated 25th instant for Rs. 1,00,000/- towards advance payment. Kindly acknowledge receipt, hand over the property documents and commence supplies”. At the bottom of the letter paper, the following words are found in print. “Subject to Bombay Jurisdiction only” Above the said words, the address of the appellant is printed. 3. The respondent filed the suit for recovery of Rs. 3,88,897/- with interest at 18% alleging that the appellant has failed to pay the amount as per the final bill. Along with the suit, Application No .4674/84 was filed by the respondent for grant of leave under Clause 12 of the Letters Patent to file the suit in this court. The appellant had entered caveat and filed counter affidavit in the application for leave to sue contending that Courts in Bombay City will alone have jurisdiction in disputes arising between the appellant and the respondent under the said contract. According to the appellant, the contract was accepted in Bombay by the letter dated June 25, 1983 and there is a specific clause in the said letter that the disputes will be subject to the Jurisdiction of the courts in Bombay only. It is contended that the jurisdiction of other Courts is excluded thereby. 4. The respondent filed a reply affidavit to the effect that the words found at the bottom of the letter paper of the appellant do not form part of the contract. It is contended that the jurisdiction of other Courts is excluded thereby. 4. The respondent filed a reply affidavit to the effect that the words found at the bottom of the letter paper of the appellant do not form part of the contract. According to the respondent in the body of the letter, the appellant has chosen to accept the quotation given by the respondent and confirmed the same. There is no reference whatever to any other term in the said letter and therefore according to the respondent the words found printed at the bottom of the letter head do not form part of the contract. 5. Learned single Judge has accepted the contention of the respondent and granted leave to file the suit in this court by his order dated 1. 1985. It is the said order which is challenged in this appeal. 6. The learned Judge has expressed the opinion that the words ‘subject to Bombay jurisdiction’ do not exclude the jurisdiction of other courts. It is not in dispute that part of the cause of action has arisen within the jurisdiction of this court. But what is contended is that the jurisdiction of this court is excluded by the clause found in the bottom of the letterhead of the appellant. According to learned counsel for the appellant, the learned single Judge has omitted to take note of the word ‘only’ after the words ‘subject to Bombay jurisdiction. Learned counsel places reliance on the judgment of the Supreme Court in A.B.C, Laminart Pvt. Ltd. v. A.P.Agencies, Salem (AIR 1989 Supreme Court 1239). On this question the court observed thus:- “20. When the court has to decide the question of jurisdiction pursuant to an ouster clause, it is necessary to construe the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the Courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other Courts. Thus, in Salem Chemical Industries v. Bird & Co. This would provide the connecting factor for jurisdiction to the Courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other Courts. Thus, in Salem Chemical Industries v. Bird & Co. AIR 1979 Madras 16 where the terms and conditions attached to the quotation contained an arbitration clause provided that: “any order placed against this quotation shall be deemed to be a contract made in Calcutta and any dispute arising therefrom shall be settled by an Arbitrator to be jointly appointed by us”, it was held that it merely fixed the situs of the contract at Calcutta and it did not mean to confer an exclusive jurisdiction on the Court at Calcutta, and when a part of the cause of action h ad arisen at Salem, the Court there had also jurisdiction to entertain the suit under section 20(c) of the Code of Civil Procedure. 21. From the foregoing decisions, it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause, when words like ‘alone’, ‘only’, ‘exclusive’ and the like have been used, there may be no difficulty. Even without such words, in appropriate cases, the maxim ‘expressio unius est exclusio alterius’ - expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case, mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract, an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed”. 7. It is contended for the appellant that the ratio of the decision of the Supreme Court is, whenever the words ‘alone’, ‘only’, ‘exclusive’ and the like are used it would automatically show that the jurisdiction of other Courts is excluded. It has therefore to be properly construed”. 7. It is contended for the appellant that the ratio of the decision of the Supreme Court is, whenever the words ‘alone’, ‘only’, ‘exclusive’ and the like are used it would automatically show that the jurisdiction of other Courts is excluded. It is also submitted that even in language (sic) of such words, the Supreme Court has pointed out that the maxim, ‘expressio unius est exclusio alterius’ would apply. 8. Per contra, learned counsel for the respondent places reliance on the judgment of the Division Bench of this Court in Prakash Roadline Pvt. Ltd. v. United India Fire & General Insurance (1993 (1) Law Weekly 672). It is argued by learned counsel that the body of the letter containing acceptance of the offer made by the respondent, does not contain any clause relating to the jurisdiction of the courts. The fact that in printed letterhead at the bottom, there is already a clause which says, subject to Bombay jurisdiction only, will not exclude the jurisdiction of other courts. According to learned counsel that clause does not form part of the contract between the parties. 9. We are of the view that the contention of learned counsel for the respondent is acceptable. Having regard to the express language used in the letter dated 26. 1983 written by the appellant accepting the quotation of the respondent, we have no hesitation to hold that the appellant accepted all the terms contained in the letter dated June 20, 1983 written by the respondent. The appellant did not add any further clause to the said terms. If the appellant had intended to confine the disputes to the jurisdiction of Courts in Bombay only, it should have included in the body of the letter, one such clause. Not having done so and having expressly stated that the quotation of the respondent was confirmed, it is not open to the appellant to contend that the Courts in Madras will have no jurisdiction to deal with the dispute. 10. In our opinion, the matter depends entirely on the agreement between the parties as construed by us, the agreement does not exclude the jurisdiction of Courts situated in places other than Bombay. 10. In our opinion, the matter depends entirely on the agreement between the parties as construed by us, the agreement does not exclude the jurisdiction of Courts situated in places other than Bombay. The observations made by the Supreme Court extracted above do not lay down that whenever the word ‘only’ is used, the jurisdiction is confined to the particular court mentioned in such a clause. The court only said that in such cases, there may not be any difficulty. But the ratio as found in the observations is that the matter shall depend on the facts of the case. In this case, in our opinion, the facts make out that the jurisdiction of the Court in Madras is not excluded. 11. Consequently, we agree with the view expressed by the learned Judge and dismiss this appeal. There will be no order as to costs.