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2000 DIGILAW 394 (RAJ)

Chowksi & Company v. Bansiram Kartar Chand

2000-03-29

ARUN MADAN

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Honble MADAN, J.–The defendant appellant has preferred this appeal against judgment & decree dated 16.7.1993 of the Additional District Judge No.1, Ajmer whereby suit of the plaintiff (respondent) has been decreed for recovery of Rs. 80,191.60p. against the appellant. (2). The facts relevant for deciding this appeal are that the plaintiff Firm instituted a civil suit for recovery of Rs. 80,472.70p., which is an amount having been over paid in excess of the cost of the sugar purchased by the plaintiff Firm. In the plaint, it has been averred inter alia that total value of the sugar having been purchased by the plaintiff firm was worth Rs. 10,35,154.40 whereas the plaintiff Firm remitted to the appellant Company a sum of Rs. 11,15,627.10p, thereby made over payment of Rs. 80,472.70p. by the plaintiff firm to the appellant Company. (3). The appellant in written statement while denying the alleged over payment, contended that a payment of Rs. 2,42,000/-having been made by the plaintiff Firm to M/s Suresh Chand Prem Chand allegedly at the instance of the appellant was wrong because the Company never authorised or directed the plaintiff Firm to make payment of aforesaid amount to M/s Suresh Chand Prem Chand who were also not agent of the appellant. An objection was also raised as to the jurisdiction of the trial Court by contending that there was specific covenant in the Agreement between the parties that all suits and legal actions would be subject to the jurisdiction of the courts at Poone (Maharashtra State). (4). On the basis of the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether plaintiff is entitled to get Rs. 80,472.70p. from the defendant? 2. Whether this Court has no jurisdiction to try the suit? 3. Whether defendant is entitled to special cost of Rs. 1000/-? 4. Whether the suit as framed is not maintainable against firm? 5. To what relief? (5). To support the averments made in the plaint, the plaintiff produced Jogender Singh (PW1) whereas the defendant did not produce any witness in evidence. After hearing the parties, the learned trial Court by its judgment & decree, referred to above, decreed the plaintiffs suit for Rs. 80,191.60. with interest @ 6% per annum from 28.6.82 till realisation of the decreetal amount. Hence this appeal. (6). After hearing the parties, the learned trial Court by its judgment & decree, referred to above, decreed the plaintiffs suit for Rs. 80,191.60. with interest @ 6% per annum from 28.6.82 till realisation of the decreetal amount. Hence this appeal. (6). Shri J.C. Jain learned counsel for the appellant contended that there is no evidence on record to prove that M/s Suresh Chand Prem Chand was agent of the appellant, inasmuch as no payment of Rs. 2,42,000/-alleged to have been made at the instance of the plaintiff firm through Suresh Chand Prem Chand was ever received by the appellant and hence the learned trial Court committed an error of law in accepting such payment being made to the appellant. As per Shri Jain, conclusions drawn by the learned trial Court under issue No.1 being based on no documentary or oral evidence but on conjectures & surmises are not sustainable. Next contention advanced by Shri Jain is that despite admission on the part of the plaintiff as to the specific contract in regard to the jurisdiction of courts at Poone, the learned trial Court has wrongly decided issue No.2 in favour of the plaintiff. (7). Despite service of the notice, none appeared on behalf of the respondent plaintiff. (8). I have heard the learned counsel for the appellant and carefully perused the relevant record with reference to the contentions advanced on behalf of the appellant besides considered the legal aspect of the matter as also the findings recorded by the learned trial Court. (9). As regards issue No.1 with regard to the entitlement of the plaintiff to recover the amount in question from the defendant, there is a clear and specific finding recorded by the trial Court that in para 11 of the plaint so also proved in evidence, after due verification of his accounts pertaining to the transaction which took place between the plaintiff and defendant, and as per statement of the accounts furnished to the Court, the plaintiff has proved to recover the amount of Rs. 80,191.60p. from the defendant on account of over payment. To assess the amount, the trial court analysed the pleadings averred in the plaint and written statement and the evidence of the plaintiff. 80,191.60p. from the defendant on account of over payment. To assess the amount, the trial court analysed the pleadings averred in the plaint and written statement and the evidence of the plaintiff. While doing so, the learned trial court rightly held that since the defendant failed to adduce any evidence in support of pleadings averred in written statement, the plaintiffs evidence remained unrebutted and unshaken and on the basis of which the learned trial Court has rightly concluded that the defendant appellant had remitted sugar worth Rs. 10,35,154.60p. only to the plaintiff and further it stands proved that after 12.7.79 upon remittance of the specific quantity of sugar; the plaintiff had remitted a sum of Rs. 2,42,000/-by way of telegraphic transfer to the defendant through M/s Suresh Chand Premchand and Rs. 11,15,627.10p. were paid to the defendant in all against delivery of the suger worth Rs. 10,35,154.60p. The aforesaid conclusions are based on the evidence of the plaintiff which stood unrebutted and controverted by the defendant who did not adduce any evidence in rebuttal to support its case. Hence, findings recorded by the learned trial Court on Issue No.1 are not open to challenge. (10). As regards issue No.2 as to the jurisdiction of court at Ajmer instead of defendants objection with regard to jurisdiction of Courts at Poone, the learned trial Court has recorded the finding that from the statement of sole witness Jogendra Singh (PW1) it is borne out that though he admitted in cross examination that the bills were sent by the defendant which mentioned that they would be subject to the jurisdiction of court at Poone, but since it is not established from the evidence that in the event of the dispute between the parties, the court at Poone would have alone jurisdiction to resolve the same, hence it cannot be inferred that the jurisdiction of Courts at Ajmer could be excluded by the plaintiff. Since admittedly not only the transaction relating to the sale or purchase of the sugar took place at Ajmer but also the party to the transaction was residing at Ajmer, hence as per the law, it is well settled that it is not open to the party to choose forum of its own choice but they could nevertheless be not deprived of their discretion in the matter of choosing the forum provided the cause of action has wholly or partly arisen at a place where the transaction took place or where either party to the proceeding is residing. In the instant case, in my view, since the transaction between the parties regarding delivery of goods including settlement of its price so also remittance of money by way of telegraphic transfer admittedly took place at Ajmer, it cannot be inferred that civil Court at Ajmer had no jurisdiction to adjudicate upon the dispute arising between the parties. Hence, the appellants contention in this regard is devoid of any merit and is not sustainable. (11). The learned trial Court while relying upon the decision of this Court in Ramanlal vs. Ramgopal (1) has held that Civil Court at Ajmer had jurisdiction to try the suit against the defendant in the facts and circumstances of the case at hand. In Ramnalals case (supra) this Court held that when the defendant appears not only to protest jurisdiction but he also pleads to the merits, such an appearance amounts to voluntary submission on his part and his protesting to submit to the jurisdiction of the Court in such a case when he also pleads to the merits does not detract from the principle of submission in any way. In the instant case, the defendants did not limit their contest to a protest as to jurisdiction only but fought the case on all points relating to the merits and even denying the pleadings of the plaintiff as to the claim of recovery in question and cross examined the plaintiff witness, and having done all that it is not open to the appellant defendant to disown the jurisdiction of civil court at Ajmer and to say that it had no jurisdiction to entertain any suit against them. In support of its finding, the learned trial Court also placed reliance upon the decision in A.B.C. Laminart Pvt. Ltd. vs. A.P. Agencies Salem (2). (12). In support of its finding, the learned trial Court also placed reliance upon the decision in A.B.C. Laminart Pvt. Ltd. vs. A.P. Agencies Salem (2). (12). Shri J.C. Jain learned counsel for the appellant placed reliance upon the decision of the Apex Court in M/s Angile Insulations vs. M/s Davy Ashmore India Ltd. (3). It was a case where the contracting parties agreed to vest jurisdiction in one such court in view of the contract being clear and unambiguous. While dealing with the question of jurisdiction of court in case of ousting clause in agreement between the parties, the Apex Court held that it is not hit by Sec. 23 of Sec. 28 of the Contract Act. In these circumstances, since in the instant case, there is no explicit clause in the agreement for ousting jurisdiction of courts at Ajmer other than courts at Poona and since the parties had already submitted to the jurisdiction of civil court at Ajmer. In my considered view, the case being covered under the clause where the cause of action wholly or in part arises, the learned trial Court has rightly held that courts at Ajmer had not only the jurisdiction to adjudicate the suit but also to decide the same. Thus with due respect to the principles of law as laid down in Angile Insulations case (supra) by the Apex Court, ratio of decision cited by Shri Jain does not render any help to advance his case. (13). As a result of the above discussion, this appeal fails and is hereby dismissed with no order as to costs. The impugned judgment & decree referred to above are upheld.