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2003 DIGILAW 137 (CAL)

Sajan Tantiya v. Messrs Aasia Industrial Technologies Limited

2003-03-21

PINAKI CHANDRA GHOSE

body2003
Judgment This application has been filed for revocation of the leave granted under Clause 12 of the Letters Patent and the plaint was filed in the suit be taken of the file; and further for dismissal of the suit. 2. According to the petitioner (defendant herein), the suit is, based on an agreement dated November 30, 1994; According to the petitioner: under Clause 8 of the said agreement only the relevant Courts at Bombay has the exclusive jurisdiction. Therefore, by such ouster clause this Hon’ble Court has no jurisdiction and therefore, the suit should be dismissed. It is also contended that substantial part of the cause of action arose within the jurisdiction of the Courts at Bombay. Mere receipt of the termination of a contract cannot constitute a part of the cause of action in the suit. Hence leave should be revoked. 3. Learned Counsel appearing for the petitioner (defendant herein) relied upon a judgment reported in AIR 1989 SC 1239 (A.B.C. Laminart Pvt. Ltd. and Another v. A.P. Agencies, Salem) and contended that if the two Courts have jurisdiction and one of such Courts has been ousted by an agreement, the jurisdiction of one Court is ousted that would not be against the public policy. She drew my attention to Clause 8 of the said agreement and submitted that relevant Court at Bombay has exclusive jurisdiction in respect of the claim and disputes between the parties. Therefore, according to her, this Hon'ble Court has no jurisdiction. 4. She also relied upon a judgment reported in AIR 1971 SC 740 (Hakam Singh v. M/s. Gammon (India) Ltd.) in support of his contention. She also drew my attention to Section 62 of the Copyright Act and contended that the District Court under Section 62 means the District Court as defined in the Code of Civil Procedure, which includes a High Court having original jurisdiction. 5. Learned Counsel appearing on behalf of the respondent, plaintiff contended that the statements made in the plaint at this stage to be taken into account as true and correct and therefore, this Hon'ble Court has jurisdiction since part of the cause of action arose within the jurisdiction of this Hon’ble Court. 5. Learned Counsel appearing on behalf of the respondent, plaintiff contended that the statements made in the plaint at this stage to be taken into account as true and correct and therefore, this Hon'ble Court has jurisdiction since part of the cause of action arose within the jurisdiction of this Hon’ble Court. He also drew my attention to Paragraph 8 of the plaint and contended that public notice was published in the Calcutta edition of the Asian Age and the advertisement was circulated both within and outside the jurisdiction of this Hon'ble Court. Therefore, this Court has jurisdiction to entertain the suit. He also relied upon some paragraphs of the plaint and contended that the part of the cause of action arose within the jurisdiction of this Hon’ble Court and as such this Court has jurisdiction to entertain the suit. He also contended that under Section 62 of the Copyright Act the plaintiff actually carries on business within the jurisdiction of this Hon'ble Court. Therefore, there is not difficulty to entertain the suit by this Hon'ble Court. He further relied upon a judgment reported in AIR 1999 SC 2352 (Food Corporation of India v. M/s. Evdomen Corporation) and contended that Section 20 of the Code of Civil Procedure has no application in respect of the Chartered High Courts exercising its original civil jurisdiction. 6. After considering the facts and circumstances of this case I do not have any doubt in my mind to hold that the liberty to be followed at this stage for revocation of the leave under Clause 12 of the Letters Patent is that the statements made in the plaint are to be taken into account as true' and correct at this stage. I have perused the pleadings in the plaint and I do not find any hesitation to hold or to accept the contention of Mr. Joyanta Mitra, Learned Senior Counsel appearing on behalf of the plaintiff to hold that no order can be passed revoking the leave under Clause 12 of the Letters Patent. But I have also no doubt in my mind to hold that the parties at the time of entering into the said agreement agreed that relevant Courts at Bombay shall have the exclusive jurisdiction to try and determine the disputes between the parties. But I have also no doubt in my mind to hold that the parties at the time of entering into the said agreement agreed that relevant Courts at Bombay shall have the exclusive jurisdiction to try and determine the disputes between the parties. In "A.B.C. Laminart Pvt. Ltd. and Another v. A.P. Agencies, Salem" reported in AIR 1989 SC 1239 the Hon'ble Supreme Court has specifically come to the conclusion that only question is to be Judged that whether the said Exclusive clause/ouster clause is clear, unambig ous and accepted by the parties, in that case the same would bind the parties. In the instant case, it would be proper for me at this stage to reproduce Clause 8 of the said agreement which reads as follows :- "8. The right and obligations of the parties hereunder and terms and conditions of this agreement shall be construed according to the laws of India and all matters, claims and disputes arising in respect hereof shall be subject to the exclusive jurisdiction of the relevant Courts at Bombay (India)." Therefore, in my opinion there cannot be any doubt to hold that the relevant Courts at Bombay shall have the exclusive jurisdiction. Therefore, there cannot be any doubt that the word "exclusive" has been used by the parties to confer jurisdiction at Bombay. Therefore, I do not have any option but to hold that this Hon'ble Court has no jurisdiction to entertain the suit and the plaint so filed by the plaintiff be taken of the file and liberty is given to the plaintiff, if so advised, may be placed before the appropriate Court. This application is thus disposed of on the above terms.