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2000 DIGILAW 360 (CAL)

Clastar Steel Limited v. Union of India

2000-07-20

ASHOK KUMAR MATHUR, BARIN GHOSH

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JUDGMENT Ghosh, J. This appeal is against the judgment and order of the learned Single Judge dated 19th January, 2000 whereby and under the writ petition, registered as W.P. No. 16914 (W) of 1999, was rejected upon holding that this Court has no jurisdiction to entertain the writ petition. 2. In the instant writ petition all the respondents are outside the jurisdiction of this Court. It is, however, alleged that the service agents of the respondent Nos. 4 and 5 have office in Calcutta. It is stated that the respondent No. 12, being the Director (I&L), Research Designs and Standard Organisation, Ministry of Railways, is having his office at 3, Koilaghata Street, Calcutta-700 001. 3. The principal grievance of the petitioner is in regard to valuation of land for fixation of licence fee. There is no dispute that the land in question is situate outside the jurisdiction of this Court. There is also no dispute that the Officer, who has made the valuation of the land is also having his office outside the jurisdiction of this Court. Further there is no dispute that the licence fee is also payable outside the jurisdiction of this Court. 4. The petitioner, however, contended that since part of the cause of action has arisen within the jurisdiction of this Court, this Court is entitled to entertain the writ petitioner. In support thereof following pleadings were made in Paragraph 58 of the petition :- "58. That the cause of action and/or the part of cause of action has risen within the jurisdiction of this Hon'ble Court and though the tender was issued by the Railway Board from Delhi, tender was submitted by your petitioner-company from its registered office at Calcutta and the advance acceptance not being an acceptance in terms of the tenders submitted by the petitioners and amounts to a counter offer by letter dated 27.11.1997 which reduced the quantity of concrete sleepers of 1,10,000 nos. at the same price quoted in the tender submitted by the petitioners and the price quoted was calculated on the basis of 3,60,000 numbers of concrete sleepers at the said price the advance acceptance was made for the quantity of 2,50,000 nos. at the same price quoted in the tender submitted by the petitioners and the price quoted was calculated on the basis of 3,60,000 numbers of concrete sleepers at the said price the advance acceptance was made for the quantity of 2,50,000 nos. which amounts to a modification of the offer made by the petitioners and/or a counter offer and after acceptance of the said offer the contract was concluded and the contract was issued and the contract was sent by the Railway Board to the registered office of the Company at Calcutta for the signatures and the contract was signed at Calcutta. The illegal and arbitrary valuation made by the Headquarters Standing Committee was communicated at Calcutta., All correspondences regarding allotment and valuation were also made from Calcutta and all decisions of North Eastern Railway in respect of the allotment and valuation are also communicated at Calcutta and the registered office of the Company at Calcutta and as such the loss suffered by the Company by unusual delay in the matter of allotment of land and finalisation of rent having its registered office at Calcutta as such this Hon'ble Court has jurisdiction to try and determine the writ petition in view of the provisions of Article 226(2) of the Constitution as part of the cause of action arise within the jurisdiction of this Hon'ble Court." 5. The learned Single Judge did not accept the contention that the advance acceptance was not an acceptance of the tender but was a counter offer. Once again it was emphasized that the petitioner had offered to supply 3,60,000 numbers of concrete sleepers but the advance acceptance was made for the quantity of only 2,50,000 numbers of such sleepers and accordingly the same cannot be said to be an acceptance. The offer of the petitioner clearly shows that the same was made pursuant to a particular tender issued by the respondents. The said tender specifically mentions that the quantity of sleepers to be supplied may vary plus minus 30 per cent. The acceptance being within that parameter, it cannot be said that the same was a counter offer and not acceptance of the offer of the petitioner. 6. The contract specifically provides a Forum Selection Clause. The said tender specifically mentions that the quantity of sleepers to be supplied may vary plus minus 30 per cent. The acceptance being within that parameter, it cannot be said that the same was a counter offer and not acceptance of the offer of the petitioner. 6. The contract specifically provides a Forum Selection Clause. It is true that by agreement no Court can be vested with the jurisdiction which it inherently lacks but then it is well-settled that if two or more Courts have jurisdiction to entertain a particular dispute or disputes then the parties to such dispute or disputes may agree that such disputes may be redressed through one of such Courts and in such circumstances all other Courts shall compel the parties to such agreement to adhere to the same and accordingly refuse to entertain any matter pertaining to such dispute or disputes. There is no just reason why in exercising discretionary power a Court exercising jurisdiction under Article 226 of the Constitution shall not also insist upon the parties to have their disputes decided through such selected forum. We, therefore, on the ground of Forum Selection Clause being present in the agreement between the parties also uphold the judgment of the learned Single Judge. 7. Lastly, the land in question, the valuation whereof for the purpose of fixation of licence fee, being the subject-matter of this writ petition, is situate wholly outside the jurisdiction of this Court. The person who is alleged to have illegally made the said valuation is also outside the jurisdiction of this Court. That person in the matter of valuation did not enter into any correspondence with the petitioner at Calcutta. At least that is not the case of the petitioner in the writ petition. If that be so, and if the completed action of that person is communicated at Calcutta, which would result in fastening of a liability on account of licence fee upon the petitioner, or even a demand made in regard thereto at Calcutta would be no part of the cause of action for the petitioner to invoke the jurisdiction of this Court. 8. Therefore, the learned Single Judge rightly held that this Court has no jurisdiction to entertain the present writ petition. We, accordingly, dismiss the appeal without any order as to costs. Mathur, C. J.: I agree.