Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 287 (HP)

MOHAN MEAKIN v. HIMALAYA ENTERPRISES AND CO.

2002-10-08

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) is directed against the order dated 27.5.1998, passed by the learned District Judge, Solan, in civil appeal No. 42-S/13 of 1997, whereby he affirmed the order dated 18.1.1997 passed by the learned Senior Sub Judge, Solan, directing the return of the plaint to the plaintiff on the ground that the said Court has no jurisdiction to entertain the suit between the parties. 2. The case, has though a long and chequered history but the whole of it need not be set out here and the facts relevant and necessary for the purpose of disposal of this petition may be noticed. The plaintiff-petitioner (hereafter referred to as the petitioner) instituted a suit for recovery of Rs. 1,97,177 against the respondents-defendants (hereafter referred to as the respondents) on the averments that the petitioner is a company duly I incorporated under the Companies Act having its registered office at Solan. Respondent No. 1 is a partnership firm, running English wine shop in Form L-I at Circular Road, Shimla. Respondents 2 and 3 are its partners. Respondent No. 1 had been obtaining supplies of Indian made foreign liquor and beer manufactured by the petitioner from its wholesale depot at Shimla on credit from 3.6.1985 to 26.8.1985. As per the plaint, at the time of the institution of the suit, the aforesaid suit amount was payable by the respondents on account of the said supplies. Hence, the suit by the petitioner. 3. Though the suit was once decreed ex parte but such decree was subsequently set aside and .the defendants filed written statement. Inter alia they took the ground of defence that the Court at Solan had no jurisdiction to try the suit. In view of this ground, inter-alia, the following issue which was treated as a preliminary issue, was framed by the trial Court : "Whether this Court has no jurisdiction to try the suit? OPD" 4. After hearing the parties on the aforesaid issue, vide its order dated 18.1.1997, the trial Court held that it had no territorial jurisdiction to try the suit and accordingly ordered the plaint to be returned to the petitioner for presentation in the proper court. 5. OPD" 4. After hearing the parties on the aforesaid issue, vide its order dated 18.1.1997, the trial Court held that it had no territorial jurisdiction to try the suit and accordingly ordered the plaint to be returned to the petitioner for presentation in the proper court. 5. Being aggrieved, the petitioner preferred an appeal in the court of the learned District Judge, Solan, who, by the impugned judgment, concurred with the findings of the trial Court and dismissed the appeal. Hence this revision petition. 6. I have heard the learned Counsel for the parties and have also gone through the records. 7. It was contended by the learned Counsel for the petitioner that as per the conditions as contained in the invoices issued by the petitioner regarding supply of liquor, all the transactions between the parties were to be deemed to have been made at Solan, therefore, only the Court of original civil jurisdiction at Solan has the jurisdiction to try the suit and the courts below have wrongly come to the contrary conclusion that such Court has no jurisdiction to try the suit. To substantiate his contention, the learned Counsel for the petitioner has relied on Inder Singh Dhir v. M/s. Mohan Meakin Breweries Ltd., Solan, 1977 ILR (Himachal Series) 291 and Mohan Meakin Ltd. v. M/s. Rajmat Liquors (P) Ltd., 1997 (1) Shim. L.C. 401. 8. On the other hand, the learned Counsel for the respondents contended that the respondents who reside and work for gain in Shimla have never entered into any agreement with the petitioner nor purchased any liquor from them nor had agreed that the Solan Court will have the jurisdiction to entertain the suit. Therefore, the Courts below have rightly concluded that the Court at Solan had no territorial jurisdiction to entertain the suit. 9. It may be pointed out at the very outset that there is no legal bar for the parties to enter into an agreement/arrangement as per the mercantile practice to chose a forum for adjudication of their disputes. Once the parties have so agreed, the court which has been specified as a court having jurisdiction to entertain a suit between the parties, will have the jurisdiction to entertain the suit. However, the act of the parties choosing the court for adjudication of their disputes must be in clear and unambiguous terms. 10. Once the parties have so agreed, the court which has been specified as a court having jurisdiction to entertain a suit between the parties, will have the jurisdiction to entertain the suit. However, the act of the parties choosing the court for adjudication of their disputes must be in clear and unambiguous terms. 10. In the case in hand, to show that Solan Court will have the jurisdiction to entertain the suit, the relevant averments are made in para 9 of the plaint which reads as under : "That this Court has jurisdiction to try this suit as under the conditions of sale the sum was payable at Solan Brewery and all suits, proceedings and action relating to and or arising out of the goods supplied are to be filed and entertained in this Court at Solan and the orders of the purchasers for the supply of the goods were also deemed to be made at Solan Brewery and also the supplies in pursuance thereof to be deemed to have been made, in response to the said orders, at Solan Brewery." 11. The respondents, in preliminary objection No. 1 and in para 9 on merits of their written statement, have denied the jurisdiction of the Court at Solan on the premises that neither they purchased any liquor from the petitioner nor they ever agreed to oust the jurisdiction of the Court where the supplies are alleged to have been actually made. 12. It is the claim of the petitioner itself that the alleged supplies were made to the defendants from the wholesale depot of the petitioner at Shimla. It is also not in dispute that petitioner No. 1 is running its business at Shimla and the respondents 2 and 3 carry on their business and reside within District Shimla. Therefore, the jurisdiction of the Shimla Court to entertain the suit will be ousted only if the parties have clearly and unambiguously agreed to get their disputes adjudicated by a Court at Solan. 13. A perusal of the invoices placed on record reveals that the conditions of sale as contained in the invoices would render the transactions between the parties as deemed transactions at Solan and if these conditions are shown to have been agreed to by the respondents, it is Solan Court which will have jurisdiction to entertain the suit. 13. A perusal of the invoices placed on record reveals that the conditions of sale as contained in the invoices would render the transactions between the parties as deemed transactions at Solan and if these conditions are shown to have been agreed to by the respondents, it is Solan Court which will have jurisdiction to entertain the suit. However, if it is not shown that these conditions were ever agreed to by the respondents, it is the Shimla Court within whose jurisdiction the respondent No. 1 carries on its business and respondents 2 and 3 reside and work for gain which will have the jurisdiction to try the suit. A perusal of the record, however, reveals that the aforesaid conditions are unilateral and there is nothing on record to suggest that the respondents ever agreed to such conditions. 14. It was pointed out by the learned Counsel for the petitioner that similar conditions were contained in the invoices which were considered in Index Singh Dhir and Mohan Meakins cases supra. Therefore, in view of the law as laid down in the said cases, the only conclusion which can be arrived at is that the conditions of the invoices are binding on the parties and the Solan Court will have jurisdiction to entertain the suit. 15. In Index Singh Dhirs case (supra) wherein the petitioner was one of the parties and the conditions of sale therein as incorporated in the invoices, were substantially the same as in the invoices in the case in hand, a learned Single Judge of this Court held as under : ".....Therefore, in these circumstances both these authorities which are relied upon by the learned Counsel for the defendant petitioner do not have any bearing on the facts of the present case, inasmuch as the conditions which have been set out in extenso clearly show that these conditions were a part of the contract because this invoice was issued at the time of making the purchase and the conditions are a part of the contract and this had been agreed to by the parties because both the parties have appended their signatures below the conditions, which conditions are below the invoice, i.e. indicating the price and they have appended their signatures only after they had read the terms because the title is "Conditions of Sale". There is a specific Condition No. 2 in this agreement which says that all sums due under or on this invoice shall be payable or be deemed to be payable at Solan, the registered office of the Company. Further it has specifically been provided that all suits, proceedings and actions relating to or arising out of this contract shall be filed and entertained in the courts of jurisdiction in Himachal Pradesh. One of the conditions is that all payments be made by drafts drawn in favour of the company at Solan and no payment in cash shall be accounted for unless made against a receipt issued officially bearing the stamp of the company. Another term which is significant is that the acceptance of the goods by the purchaser, his agent, employee or servant, shall and be deemed (emphasis mine) to be on the conditions and terms hereof and acceptance thereof. Condition No. 10 says that all the orders by the purchaser for supply of the goods shall be deemed to have been made at Solan, and the supply of this invoice shall be deemed to have been made from Solan as if being made in response to such orders received at Solan. Therefore, in view of this deeming clause it would appear that the parties intended that the goods shall be deemed to have been purchased and delivered at Solan and that the payments also shall be made at Solan. Therefore, under the fiction the sums due under or on this invoice shall be payable or be deemed to be payable at Solan, the registered office of the Company and further that all orders for supply of the goods shall be deemed to have been made at Solan and the supplies of this invoice shall be deemed to have been made from Solan as if being made in response to such orders received at Solan. It will demonstrate that the court has the jurisdiction to entertain the suit because of this deeming clause, according to which, the orders for the supply were deemed to have been made from Solan and also received at Solan and also the dues were also deemed to be payable at Solan. It will demonstrate that the court has the jurisdiction to entertain the suit because of this deeming clause, according to which, the orders for the supply were deemed to have been made from Solan and also received at Solan and also the dues were also deemed to be payable at Solan. On the basis of this deeming clause it is to be held as if the actual transaction was struck at Solan and the delivery was also made at Solan and the payments were also made at Solan and the balance was also payable at Solan." 16. Similarly, in Mohan Meakins case (supra), on the basis of the invoices containing substantially the same conditions, as in the invoices in the case in hand, a learned Single Judge of this Court held as under: "Before parting with this judgment it needs to be stressed that though the stocks of liquor and beer were supplied from the sales depot of the plaintiff at Mumbai to the defendant, which is also based there, from time to time, the suit has been filed in this court, which is at Himachal Pradesh. However, in this connection, a perusal of the various invoices placed on record vide Exts. P-6 to P-141 indicates that it has been expressly stipulated that it has been agreed between the seller and the purchaser (plaintiff and defendant, respectively) that, in the event of any dispute arising out of the contract between the two parties, only the Courts in Himachal Pradesh shall have the jurisdiction to settle the same. Apart from this clear and specific stipulation in the contract between the two parties, the learned Counsel for the plaintiff has cited a Single Bench decision of this Court reported as Inder Singh Dhir v. M/s. Mohan Meakin Breweries Ltd., Solan, ILR (Himachal Series) (1977) 279. In that case also the plaintiff herein was a party and it was a suit for recovery of price of goods purchased and delivered at Patiala, although the plaintiff has its registered office at Solan in Himachal Pradesh. However, therein the agreement provided that the Courts in Himachal Pradesh alone would have the jurisdiction to try the suits. It was held that Court at Solan and not at Patiala was the proper Court to try the suit. However, therein the agreement provided that the Courts in Himachal Pradesh alone would have the jurisdiction to try the suits. It was held that Court at Solan and not at Patiala was the proper Court to try the suit. This further clinches the issue that it is only the Court having the necessary pecuniary jurisdiction (which, in the present case, is this Court) in Himachal Pradesh which can try and decide the present suit, and impliedly the jurisdiction of Court/ Courts at Mumbai is barred." 17. The ratio in the aforesaid cases, however, is based on the fact that the invoices containing the conditions of sale in both these cases, were signed by both the parties. Evidently, the defendants therein having signed the invoice containing the conditions had agreed to abide by the condition that Courts at Solan would have the jurisdiction to try the disputes between the parties. However, in the case in hand, none of the invoices is signed by the respondents nor there is anything on record to show that the respondents have ever agreed that the disputes between the parties will be tried by the Court at Solan and by no other Court. Therefore, the ratio in the aforesaid cases is not applicable to the facts and circumstances of the present case. 18. As already noticed hereinabove, respondent No. 1 carries on its business at Shimla and the respondents 2 and 3 work for gain and are residing at Shimla, therefore, by virtue of the provisions of Section 20 of the Code, it is the Court at Shimla which will have jurisdiction to entertain the suit. 19. In view of the above discussion, the findings recorded by the Courts below and the impugned order do not call for any interference by this Court. 20. As a result, this revision petition merits dismissal and is accordingly dismissed. No orders as to costs. Revision dismissed.