Judgment :- 1. Defendant in O.S. No. 220 of 1997, on the file of Sub Court, Tiruchirapalli, is the appellant. 2. The relevant facts may be summarised thus: — Second plaintiff entrusted a consignment of six bales of cotton yarn to the defendant, common carrier for reward, for safe transportation to Calcutta. The consignment was not delivered in spite of repeated demands, and the defendant, instead of effecting delivery of the consignment entrusted to it, issued a certificate stating that the consignment was destroyed in a fire accident. The consignment was insured with the first plaintiff and they settled the claim for Rs. 24,000/-. The suit was filed for recovery of Rs. 24,000/-, and a decree was prayed for in favour of plaintiff 1 and 2. 3. In the written statement filed by the defendant, appellant herein, it was contended that Sub Court, Trichy had no territorial jurisdiction to entertain the suit. As per the contract, Courts situated within Bombay City alone have jurisdiction. It was also contended that the plaintiff should have preferred a claim within 30 days from the date of arrival at the destination. Plaintiff refused to take delivery in spite of the fact that the goods had been kept in the godown of the defendant, and, after the expiry of 30 days, the goods were lost in a fire accident. It is said that the defendant was not liable for the amount, since the fire accident was due to vis major (act of God) and was beyond the control of the defendant. 4. On the above pleadings, trial Court held that the Court at Tiruchirappalli has jurisdiction. It also found that the defendant has not proved that it was diligent as contemplated under the Contract Act. It further found that the defendant had not taken necessary precautions to prevent the fire. Consequently, the suit was decreed as prayed for. 5. When the matter was taken in appeal by defendant, in A.S. No. 310 of 1981, the lower appellate Court also confirmed all the findings of the trial Court and dismissed the Appeal. 6. The concurrent finding is assailed in this Second Appeal, on the following substantial question of law: — “The Courts below ought to have seen that the parties have agreed to exclude the jurisdiction of all Courts other than those situated at Bombay to try and adjudicate upon disputes arising between the parties?” 7. 6. The concurrent finding is assailed in this Second Appeal, on the following substantial question of law: — “The Courts below ought to have seen that the parties have agreed to exclude the jurisdiction of all Courts other than those situated at Bombay to try and adjudicate upon disputes arising between the parties?” 7. Apart from the same, learned counsel for appellant also contended that regarding the liability also, a question of law arises and, therefore, with the consent of both parties, the following substantial question of law was also framed: — “Whether the finding of the Courts below that the appellant is liable for the amount is correct?” 8. I will first consider the question of law regarding jurisdiction. 9. Learned counsel for appellant contended that there is a clause in the agreement conferring jurisdiction only on the Courts at Bombay, to hear and decide any dispute, and, therefore, the jurisdiction of other Courts is ousted. The very appellant herein is a party to the decision reported in 1979 (1) MLJ 386 ( Savani Transport (P.) Ltd. v. Madras Aluminium Co. Ltd. ), and this was the only question that arose for consideration in that case also. The wordings in the agreement in that case were also similar to the terms of the agreement in the present case. In that case, it was held thus: — “The contract of affreightment in the instant case came into effect consequent on negotiations either at Combatore or Mettur. The cause of action arose at Mettur. The concerned clause in the affreightment contract ought not to be interpreted to mean that the parties had contracted, specifically as to the choice of the Court in which they should agitate. Such a choice will be available only when there are two competent Courts which can entertain a cause. That is not the case here. The Bombay Court is not the competent Court so far as the cause of action is concerned. No question of choice was left to the parties and the clause relied on cannot apply. It is well-established that when there are two competent Courts which could entertain a cause of action, then the parties could make a choice on their own and vest the jurisdiction to adjudicate any dispute inter se amongst themselves in one of such competent Courts. It is well-established that when there are two competent Courts which could entertain a cause of action, then the parties could make a choice on their own and vest the jurisdiction to adjudicate any dispute inter se amongst themselves in one of such competent Courts. Section 20 of the Civil Procedure Code provides for suits to be instituted where the defendant resides or the cause of action arises. It is more for the benefit of the plaintiff who can find the defendant and institute the action at the place where he resides or where he carries on business. The Explanation to the section says that a corporation shall be deemed to carry on business at its sole or principal office in India, or in respect of any cause of action arising at any place where it has also a subordinate office at such place. The Explanation is only explanatory of the situation and the fiction that a corporation shall be deemed to carry on business at its sole or principal office is a general statement having regard to the provisions of the Companies Act and the specific prescribed procedure in the Civil Procedure Code. But, the latter part of the Explanation makes it clear that, in respect of any cause of action arising at any place where it has also a subordinate office the cause of action should be deemed to arise af such place also.” I have referred to the decision of this Court first since that is a case where the defendant, appellant herein, was a party. In that case, their Lordships further held that there was a choice of forum of instituting the suit and only in such cases the question of contract conferring jurisdiction on one Court will arise. That was a case where the goods were to be transported from Coimbatore to Erode, and the contract was entered into at Coimbatore. The cause of action was only between Coimbatore and Erode. Therefore, it was held that the stipulation that a suit will have to be instituted at Bombay is a void stipulation. 10. In (1989) 2 SCC 163 = AIR 1989 SC 1239 = 1989 1 L.W. 449( A.B.C Laminart Pvt. Ltd. v. A.P. Agencies ), the view expressed by this Court was upheld. Therefore, it was held that the stipulation that a suit will have to be instituted at Bombay is a void stipulation. 10. In (1989) 2 SCC 163 = AIR 1989 SC 1239 = 1989 1 L.W. 449( A.B.C Laminart Pvt. Ltd. v. A.P. Agencies ), the view expressed by this Court was upheld. Their lordships held thus: — “Each of the citizens has the right to have his legal position determined by the ordinary tribunal except, of course, in a contract (a) when there is an arbitration clause which is valid and binding under the law, and (b) when parties to a contract agree as to the jurisdiction to which dispute in respect of the contract shall be subject. This is clear from Section 28 of the Act. But an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy under Section 23 of the Contract Act. Ex dolo malo non oritur actio. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. Where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen there within, if the parties 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, unambignous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute. Mercantile Law and Practice permit such agreements.” The question of law regarding jurisdiction is, therefore, found against the appellant. 11. The next question is, regarding the fixation of liability. Regarding that also, I do not think the appellant is entitled to succeed in view of the concurrent finding by the Courts below. 12. Mercantile Law and Practice permit such agreements.” The question of law regarding jurisdiction is, therefore, found against the appellant. 11. The next question is, regarding the fixation of liability. Regarding that also, I do not think the appellant is entitled to succeed in view of the concurrent finding by the Courts below. 12. Learned counsel for the appellant submitted that the defendant examined D.W.1 to prove that all precautions were taken to prevent the fire accident According to me, the Courts below have appreciated the evidence of D.W. 1 and have come to the conclusion that he was not at the spot when the accident took place. According to the Courts below, there was a watchman and also a guard for the godown, and they would have been in a position to speak about the precautions taken to prevent fire accident. But none of them has been examined. For that reason, Courts below held that the presumption of negligence could be drawn. I feel that the Courts below have approached the question correctly. 13. I only refer to the decisions of the Supreme Court and also our High Court. 14. In AIR 1963 SC 422 Union of India v. Udha Rem and Sons, it was held thus: — “The responsibility of the railways under Section 72 of the Railways Act is subject to the provisions of Section 151 of the Contract Act. Section 151 states that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstance, take of his own goods of the same bulk, quality and value as the goods bailed. Needless to say that an ordinary person travelling in a train would be particular in keeping an eye on his goods especially when the train stops, It is not therefore imposing a higher standard of care on the railway administration when it is said that its staff, and especially the railway protection police specially deputed for the purpose of seeing that no loss takes place to the goods, should get down from the wagon and keep an eye on the wagons in the train in order to see that no unauthorised person gets at the goods. It may be true that any precautions taken may not be always successful against the loss in transit on account of theft, but even so evidence should be offered with respect to the extent of the precautions taken and with respect to what the railway protection police itself did at the place where the train had to stop. It must be taken to be the duty of the railway protection police to get out of the guards van whenever the train stops, be it at the railway platform or at any other place. In fact, the ne cessity to get down and watch the train when it stops at a place other than a station is greater than when the train stops at a station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the off side.” 15. In AIR 1962 Madras 244 P. Rangaraju v. Muthukrishna, a Division Bench of our High Court also had occasion to consider a similar question in detail. The position of law regarding the discharge of burden was declared by the Bench thus: — “The position of the defendant as a bailee within the definition of the term under section 148 of the Contract Act cannot be and has not been disputed. It is unnecessary to discuss the question whether the defendant was a gratuitous bailee or a bailee for reward or hire, as the provisions of the Indian Contract Act do not make a distinction between the two kinds of bailees in regard to their duty to take care of the goods bailed. The English Law draws a distinction between a gratuitous bailee and a bailee for reward or hire in the matter of the degree of care to be taken by the bailee to avoid liability for loss or damages. A bailee for reward is bound to use ordinary care of a reasonable man and his failure to use such care is deemed to be negligence. But an involuntary or gratuitous bailee who is said to have a naked bailment of goods entrusted is liable for loss arising only out of gross neglect, fraud or breach of directions. A bailee for reward is bound to use ordinary care of a reasonable man and his failure to use such care is deemed to be negligence. But an involuntary or gratuitous bailee who is said to have a naked bailment of goods entrusted is liable for loss arising only out of gross neglect, fraud or breach of directions. Even in cases of gratuitous bailee, distinction was made between mandate and deposit, the former requiring the duty to use reasonable care and the latter casting a liability only for gross neglect. The trend in English decisions as developed in recent years seems to hold that the duty of a gratuitous bailee is to take ordinary case of a reasonable prudent man whether in mandate or deposit. In Elvin and Powell Ltd. v. Plummer Roddis Ltd (1934) 50 TLR 158, Hawkes, J. said:. “If persons are voluntary bailees and had done everything reasonable they were not liable to pay damages if something which they did resulted in the loss of the property.” See also Blount v. War Office, 1931 1 WLR 736 at p. 739. Section 151 of the Contract Act covers all cases of bailment and is as follows: In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.” Once the contract of bailment is proved and there is the entrustment of the goods with the bailee the loss of the subject matter of the bailment is itself prima facie evidence of the negligence of the bailee. In order to escape liability for the loss occurred the onus of proof will be upon the bailee to show that he had taken the necessary standard of care as imposed upon him by the statute. In Halsburys Laws of England Vol. 2, 3rd Edn., p. 117, the Rule of Law relating to onus of proof is thus enunciated: “When a chattel entrusted to a custodian is lost, injured, or destroyed, the onus of proof is on the custodian to show that the injury did not happen in consequence of his neglect to use such care and diligence as a prudent or careful man would exercise in relation to his own property. If he succeeds in showing this he is not bound to show how or when the loss or damage occurred. If a custodian declines either to produce the chattel entrusted to him, when required to do so by the owner, or to explain ho w it has disappeared, the refusal amounts prima facie to evidence of breach of duty on his part, and throws on him the onus of showing that he exercised due care in the custody of the chattel and in the selection of the servants employed by him in the warehousing.” 16. In AIR 1971 Madras 53 = 83 L.W. 251 Union of India owning the Southern Rly, by General Manager, Madras v. Sri Rajendra Mills Ltd., Salem, another Division Bench of our High Court has held thus: — “Where the goods were consigned by railway under Railway Risk and they were damaged by fire on the way, and the defendant railway did not discharge the onus which was on them by showing that all possible care and caution had been taken, inasmuch as the goods were placed in a wagon on the transit, which was not actually tested to be watertight and they were transhipped by a contractor and it was not known how the goods were handled by his servants and there was doubt whether there was any negligence on t he part of the contractors servants, the principle of resipsa loquitur and the presumption under Section 114 (g) of the Evidence Act may be applied. 17. In view of the settled legal position, I do not think there is any ground to interfere with the concurrent findings of both the Courts below. The Second Appeal is, therefore, dismissed with costs.