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2011 DIGILAW 119 (GAU)

Candid Drug Distributors v. Wanbury Ltd.

2011-02-11

B.D.AGARWAL, TINLIANTHANG VAIPHEI

body2011
ORDER T. Vaiphei, J. 1. This first appeal is directed against the judgment and order dated 19.5.2008 passed by the learned Civil Judge (Senior Division), No. 1, Guwahati in Misc. (J) Case No. 129 of 2007 as well as the order dated 19.5.2008 passed in the connected Money Suit No. 20 of 2007 returning the plaint on the ground that he had no territorial jurisdiction to entertain the suit. 2. The Appellant as the Plaintiff i.e. Candid Drug Distributors, Guwahati had instituted the money suit in question against the Respondent/Defendant, namely, Wanbury Ltd. Mumbai, before the learned Civil Judge (Senior Division) No. 1, Guwahati for recovery of As. 1,71,24,267/-. This is how the dispute arose. The Appellant was appointed by the Respondent on 30.3.2001 as Distributor on consignment basis ('DCB') in terms of the agreement executed between them, and the nature of this appointment was subsequently converted to Carrying and Forwarding Agent ("C&FA") with reduced commission due to poor performance on the part of the Appellant. In clause 36 of the agreement dated 30.3.2001, it had been agreed by the parties that in the event of any dispute arising between them warranting litigation, the Courts in Mumbai alone would have the jurisdiction to decide such a dispute. Clause 35 of the said agreement also incorporates similar agreement. Clause 43 was incorporated in the agreement dated 13.1.2003 stipulating that the Court in Greater Mumbai only will have the jurisdiction to decide all matters arising out of the agreement. For better appreciation of the controversy, both the clauses are reproduced below: 35. In the event of any disputes arising between the company and the C&FA necessitating legal redress the Courts in Mumbai will alone be the competent Courts to decide the issues. This agreement is entered into in Mumbai and supersedes previous agreements, if any. 43. It is hereby expressly agreed and declared that this Agreement shall be deemed to have been made in Mumbai and that the Court in Greater Mumbai only will have jurisdiction on all matters arising out of this agreement. 3. There is no dispute at the bar that the agreement dated 13.1.2003 was for a period of one year i.e. it was to remain in force until 12.1.2004 unless (i) it was determined by either party in the manner hereinafter provided and (ii) mutually extended by the parties hereto in writing. 3. There is no dispute at the bar that the agreement dated 13.1.2003 was for a period of one year i.e. it was to remain in force until 12.1.2004 unless (i) it was determined by either party in the manner hereinafter provided and (ii) mutually extended by the parties hereto in writing. There is also no dispute at the bar that there was no express determination of the agreement by either party or mutual extension of the agreement by either party after 12.1.2004. The Respondent contested the suit and promptly filed a petition under Section 21 Code of Civil Procedure before the learned Civil Judge praying for return of the plaint on the ground that his territorial jurisdiction to adjudicate the dispute in question stood ousted by clause 43 of the agreement dated 13.1.2003. According to the Respondent, though the agreement dated 13.1.2003 was not mutually extended by the parties in writing, for all intent and purpose, the parties continued to govern themselves by the terms and conditions thereof in respect of all transactions after 12.1.2004 till the C&FA was terminated with effect from 31.5.2006 by closing down the operation for the reasons assigned in the various communications made: such communications would go to show that the claims and counter-claims of the parties arose out of the agreement dated 13.1.2003. As there was specific agreement between the parties to oust the jurisdiction of all other Courts, contended the Appellant, the learned Civil Judge had no territorial jurisdiction to entertain the suit filed by the Appellant. The petition was opposed by the Appellant by filing its written objection. It was contended by the Appellant that the petition was merely a device to stall the smooth proceedings of the suit and that as the issue raised by the Respondent was a mixed question of fact and of law, the same could not be decided as a preliminary issue, more so, when written statement was yet to be filed by the Respondent. It was also the contention of the Appellant therein that as the clauses relating to jurisdiction relied on by the Respondent in the agreement dated 13.1.2003 had spent its force by efflux of time on 12.1.2004, the conferment of jurisdiction upon the Courts in Mumbai stood exhausted, and it is only the Civil Court (Senior Division), Guwahati, where the Respondent has its subordinate office, which would have the ordinary territorial jurisdiction to entertain the suit: no cause of action thus accrued in Mumbai. After hearing the parties, the learned Civil Judge passed the impugned order returning the plaint by holding that he had no jurisdiction to adjudicate the dispute and that the Appellant had the liberty to present the same in the appropriate forum at Mumbai. 4. Clause 35 of the agreement dated 13.1.2003, simply stated, says that if there arises any dispute between the Company and the C&FA i.e. the Respondent and the Appellant, necessitating legal redress, the Courts in Mumbai alone will have the competence to decide the issues. Under clause 43 of the same agreement, the parties expressly agree and declare that the agreement should be deemed to have been made in Mumbai and that the Courts in Greater Mumbai only will have the jurisdiction on all matters arising out of the agreement. In other words, during the currency of the agreement, the parties mutually had agreed to confer exclusive jurisdiction upon the Courts in Greater Mumbai the jurisdiction to entertain any suit arising out of the agreement. Section 28 of the Indian Contract Act, 1872 renders any agreement void to the extent it restricts absolutely a party from enforcing his contractual rights by usual proceedings in ordinary Courts; or it limits the time within which he may enforce his rights. It, however, saves two types of contract, namely, (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 discharged. But Section 28 does not apply where the restriction is not absolute. Thus, where one out of two competent jurisdictions is excluded by agreement, it does not amount to absolute ouster of jurisdiction, and such a clause does not violate Section 28. But Section 28 does not apply where the restriction is not absolute. Thus, where one out of two competent jurisdictions is excluded by agreement, it does not amount to absolute ouster of jurisdiction, and such a clause does not violate Section 28. Conversely, parties cannot, by private agreement, confer upon a Court jurisdiction which it does not possess, nor can they divest a Court of jurisdiction which it possesses under the ordinary law. The principle that parties cannot by consent confer jurisdiction on a Court or deprive a Court of jurisdiction has been stated to apply to cases of inherent jurisdiction of Court over the subject matter of the suit, but the question of territorial jurisdiction is not a question of inherent jurisdiction. Thus, where two Courts have jurisdiction to try a case, there is nothing contrary to law in an agreement between parties that their disputes should be tried at the one Court rather than the other. If such contract is clear, unambiguous and not vague, it is not hit by Section 28. This section renders void only those agreements which absolutely restrict a party to a contract from enforcing the rights under that contract in ordinary Courts. It does not apply where a party agrees not to restrict the enforcement of his rights in the ordinary Courts, but only agrees to a selection of one of those ordinary Courts in which ordinarily a suit would be tried. See New Moga Transport Co. v. United India Insurance Co. Ltd. and Ors. (2004) 4 SCC 677 and Patel Roadways Limited v. Prasad Trading Company (1991) 4 SCC 2 70. A perusal of the agreement dated 13.1.2003 would go to show that the parties are within the four corners of Section 28 of the Contract Act in ousting the jurisdiction of the Courts in Guwahati for trying any suit arising out of the agreement executed by them during the currency thereof. 5. Coming now to the bone of contention between the parties, it may be appropriate to refer to Sections 15 to 20 of the Code of Civil Procedure, which deal with the place of suing. Section 15says every suit shall be instituted in the Court of the lowest grade competent to try it. 5. Coming now to the bone of contention between the parties, it may be appropriate to refer to Sections 15 to 20 of the Code of Civil Procedure, which deal with the place of suing. Section 15says every suit shall be instituted in the Court of the lowest grade competent to try it. Section 16is about the place where suits for recovery of or for determination of any other right to or interest in immovable property, of mortgage, of compensation for wrong to immovable property or of recovery of movable property under restraint or attachment with which we are not concerned. Then, Section 17 deals with the place of suing for suits relating to immovable property situated within jurisdiction of different Courts. Section 18 comes into play only when the place of suing where local limits of jurisdiction of Courts are uncertain, whereas Section 19 deals with suits for compensation for wrongs to person or movables. Section 20 is, however, relevant, which reads thus: Section 20. Other suits to be instituted where Defendant reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-- (a) the Defendant, or each of the Defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the Defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally work for gain, provided that in such case either the leave of the Court is given or the Defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. * * * Explanation-- 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. Section 20 is a general provision embracing all personal actions. Clauses (a), (b) and (c) of Section 20 are independent of each other. Section 20 is a general provision embracing all personal actions. Clauses (a), (b) and (c) of Section 20 are independent of each other. The principle underlying Section 20(a) and Section 20(b) is, that the suit is to be instituted at the place where the Defendant can defend the suit without undue trouble. But, under Section 20(c), the Plaintiff has the option of suing the Defendant, irrespective of where he resides, where the cause of action has accrued. It may, however, be noted that the expression "Defendant" includes corporation or a company registered under the Companies Act. This then takes us to the Explanation to Section 20, which is really an explanation to Clause (a) of Section 20 and is in the nature of a clarification on the scope of Clause (a) viz. as to where the corporation can be said to carry on business. The scope of the Explanation to Section20 has been succinctly explained by the Apex Court in New Moga Transport Co. (supra) in the following manner: 9. Normally, under Clauses (a) to (c) the Plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the Defendant and can file a suit at a place where the cause of action arises. If the Defendant desires to be protected from being dragged into litigation at some place merely because the cause of action arises there it can save itself from such a situation by an exclusion clause. The clear intendment of the Explanation, however, is that where the Corporation has a subordinate office in the place where the cause of action arises it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. Clauses (a) and (b) of Section 20 inter alia refer to a Court within the local limits of whose jurisdiction the Defendant inter alia "carries on business". Clause (c) on the other hand refers to a Court within the local limits of whose jurisdiction the cause of action wholly or in part arises. 10.On a plain reading of the Explanation to Section 20 Code of Civil Procedure it is clear that the Explanation consists of two parts: (i) before the word "or" appearing between the words "office in India" and the words "in respect of. and (ii) the other thereafter. 10.On a plain reading of the Explanation to Section 20 Code of Civil Procedure it is clear that the Explanation consists of two parts: (i) before the word "or" appearing between the words "office in India" and the words "in respect of. and (ii) the other thereafter. The Explanation applies to a Defendant which is a corporation, which term would include even a company. The first part of the Explanation applies only to such corporation which has its sole or principal office at a particular place. In that event, the Court within whose jurisdiction the sole or principal office of the company is situate will also have jurisdiction inasmuch as even if the Defendant may not actually be carrying on business at that place, it will be deemed to carry on business at that place because of the fiction created by the Explanation. The latter part of the Explanation takes care of a case where the Defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place. The expression "at such place" appearing in the Explanation and the word "or" which is disjunctive clearly suggest that if the case falls within the latter part of the Explanation it is not the Court within whose jurisdiction the principal office of the Defendant is situate but the Court within whose jurisdiction it has a subordinate office which alone has the jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office. (Underlined for emphasis) 6. Thus, the clear intendment of the Explanation appears to be that where the corporation or, for that matter, the company, has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. It would be a great hardship if, despite the company having a subordinate office at the place where the cause of action arises, the Plaintiff is to be compelled to travel to the place where the company has its principal office. The place should be convenient to the Plaintiff; since the company has an office at such place, it will also be under no disadvantage. The Explanation provides an alternative locus for the corporation place of business, and not additional one. The place should be convenient to the Plaintiff; since the company has an office at such place, it will also be under no disadvantage. The Explanation provides an alternative locus for the corporation place of business, and not additional one. In the instant case, we can, for the purpose of determining as to whether the learned Civil Judge at Guwahati would have the territorial jurisdiction to entertain the suit or not, proceed on the assumption that the statements made in the plaint are true. It is settled principle of law that if at any time, it appears to the Court on the averments in the plaint itself that it has no jurisdiction, either pecuniary or territorial, to entertain the suit, the Court can always direct return of the plaint. In such a case, there is no need to frame a preliminary issue on the question of jurisdiction nor can the Court insist that the Defendant should first file his written statement. The position of law is explained by the Apex Court in Exphar S.A. v. Eupharma Laboratories Ltd. (2004) 3 SCC 688 at para 9: 9. Besides, when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on that basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be true. However, the Division Bench examined the written filed by the Respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of the Delhi High Court and also that Respondent 2 did not carry on business within the jurisdiction of the Delhi High Court. Having recorded the Appellants' objections to these factual statements by the Respondents, surprisingly the Division Bench said: Admittedly, the goods are being traded outside India and not being traded within India and as such there is no question of infringement of trade mark within the territorial limits of any Court in India what to say of Delhi. 10. Having recorded the Appellants' objections to these factual statements by the Respondents, surprisingly the Division Bench said: Admittedly, the goods are being traded outside India and not being traded within India and as such there is no question of infringement of trade mark within the territorial limits of any Court in India what to say of Delhi. 10. Apart from the ex facie contradiction of this statement in the judgment itself, the Division Bench erred in going beyond the statements contained in the plaint. 7. Mr. D. Baruah, the learned Counsel for the Appellant, submit that the trial Court has failed to appreciate that the jurisdictional clause in the agreement dated 13.1.2003, being a negative covenant, stood expired along with the agreement itself on 13.1.2004 by efflux on time when the agreement was not extended by the parties: the decision of the Trial Court that it had no jurisdiction to entertain the suit was thus based on misconception of law as well as fact. Moreover, contends the learned Counsel, once the agreement dated 13.1.2003 came to an end either by efflux of time, the restrictive covenant in the nature of restraint on legal proceeding in a particular place of suing cannot longer operate as in the case of restraint of trade provided for in Section 27 of the Contract Act: this aspect of the law has been completely overlooked by the trial Court, which, in the process has acted illegally. Strong reliance is placed by him upon the decision of the Division Bench of the Bombay High Court in Zaheer Khan v. Percept D' Mark(India) Private Limited and Anr. AIR 2004 Bom 363, which was affirmed by the Apex Court in Percept D 'Mark(India) Private Ltd. v. Zaheer Khan and Anr. (2006) 4 SCC 227 in support of his contention. It is the contention of the learned Counsel for the Appellant that Code of Civil Procedure confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends on decision of fact, as is the case here, it cannot be tried as a preliminary issue. He strongly relies on the decision of the Apex Court in Ramesh B. Desai v. Bipin Vadilal Mehta (2006) 5 SCC 638 , to buttress this contention. He strongly relies on the decision of the Apex Court in Ramesh B. Desai v. Bipin Vadilal Mehta (2006) 5 SCC 638 , to buttress this contention. According to the learned Counsel, the trial Court has completely overlooked the various judicial pronouncement on the provisions of Order VII, Rule 10 Code of Civil Procedure which say that in deciding whether the plaint is to be returned or not, the Court should take the allegations contained in the plaint to be true: para 3 of the plaint says that the agreement dated 13.1.2003 had, in the absence of mutual extension thereof in writing, ceased to exist: this alone renders the impugned order liable to be set aside. The learned Counsel maintains that as there is no evidence to show that the agreement dated 13.1.2004 got extended by the conduct of the parties, the trial Court has misdirected itself in applying the doctrine of agreement sub silentio: such finding arrived at without adducing evidence by either side is unwarranted and cannot be sustained in law. In any case, submits the learned Counsel for the Appellant, as the parties had entered into the written agreement with express stipulations, it is absolutely undesirable to extend the period of the agreement by implications; the presumption is that having expressed some, they have expressed all the conditions by which they had intended to be bound under the said agreement: expressio unius est exclusion alterius (the express mention of the one thing implies the exclusion of another). The learned Counsel points out that the Appellant had specifically mentioned in the plaint, which is not denied by the Respondent, that the cause of action arose within the jurisdiction of the learned Civil Judge at Guwahati and that there is no whisper of statement made by the Respondent in its application under Section 21 Code of Civil Procedure that some cause of action has arisen within the jurisdiction of the Courts at Mumbai and therefore, contends that the trial Court has thus fallen into gross error of law in holding that the Courts at Mumbai alone would have the jurisdiction to adjudicate the dispute between the parties. He, therefore, strenuously urges this Court to set aside the impugned judgment and order and direct the trial Court to proceed with the suit in accordance with law. 8. While supporting the impugned order, Mr. He, therefore, strenuously urges this Court to set aside the impugned judgment and order and direct the trial Court to proceed with the suit in accordance with law. 8. While supporting the impugned order, Mr. K. Agarwal, the learned Counsel for the Respondent, maintains that though the parties to the agreement dated 13.1.2003 did not expressly extend by mutual consent the tenure of the agreement, the conduct of the parties as evidenced from their subsequent conduct unmistakably shows that they continued to govern themselves by the terms and conditions of the agreement. According to the learned Counsel, the proved facts and circumstances which can be culled from the various correspondences annexed to the plaint are indicative of the fact that there was an agreement sub silentio. Since there is demonstrably an agreement sub silentio between the parties about the continuation of the agreement dated 13.1.2004, argues the learned Counsel, the clause in the said agreement with respect to ouster of jurisdiction of Courts in Guwahati for any dispute arising out of the same agreement, ipso facto, continued and as such the trial Court is perfectly right in holding that the Courts in Mumbai alone would have the jurisdiction to entertain the suit. The learned Counsel refutes the contention of the learned Counsel for the Appellant that the objection to the territorial jurisdiction raised by the Respondent involves mixed questions of law and of fact, which could not be decided as a preliminary issue and contends that the various communications made by the parties, which are annexed to the plaint, till the termination of the C&FA with effect from 31.5.2004 would go to show that their claims and counter-claims arose out of the agreement dated 13.1.2003. He, therefore, submits that the impugned order is perfectly in order and does not call for the interference of this Court. In support of his various contentions, the learned Counsel relies on the following decisions: (a) Hakam Singh v. Gammon (India) Ltd. AIR 1971 SC 740 ; (b) ABC Laminart Pvt. Ltd. v. A.P. Agencies (1989) 2 SCC 163 ; (c) Angile Insulation v. Davy Ashmore India Ltd. and Anr. (1995) 4 SCC 153 ; (d) Hamil Era Textile Ltd. v. Puromatic Filters (P) Ltd. (2004) 4 SCC 671 ; (e) New Moga Transport Co. v. United Insurance Co. and Ors. (1995) 4 SCC 153 ; (d) Hamil Era Textile Ltd. v. Puromatic Filters (P) Ltd. (2004) 4 SCC 671 ; (e) New Moga Transport Co. v. United Insurance Co. and Ors. (2004) 4 SCC 677 ; (f) Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr. (2005) 7 SCC 791 ; (g) Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia and Ors. (2005) 10 SCC 704 ; (h) Rajasthan State Electricity Board v. Universal Petrol Chemicals Ltd. (2009) 3 SCC 107 ; (i ) All Bengal Transport Agency and Ors. v. Shri Hare Krishna Banik (1984)1 GLR 405; (j) Sasa Musa Sugar Works Pvt. Ltd. v. Chunilal Choraria AIR 1975 Gau 34 ; (k) Naihati Jute Mills Ltd. v. Khyaliram Jaganath and Ors. AIR 1968 SC 522 ; (l) Union of India v. Kishorilal Gupta and Ors. AIR 1959 SC 1362 ; (m) Khardah Company Ltd. v. Raymon and Co. (India) Pvt. Ltd. AIR 1962 SC 1810 ; (n) Damodar Valley Corporation v. K.K. Kar AIR 1974 SC 158 ; (o) Chairman and M.D. NTPC Ltd. v. Reshmi Constructions, Builders and Contractors (2004) 2 SCC 663 ; (p) NIMET Resources Inc. and Anr. v. Essar Steels Ltd. (2000) 7 SCC 497 ; (q) Rastriya Ispat Nigam Ltd. and Anr. v. Verma Transport Co. (2006) 7 SCC 2 75; (r) Bharat Petroleum Corporation v. Greater Eastern Shipping Co. Ltd. (2008) 1 SCC 503 and (s) R.N. Kumar v. R.K. Soral AIR 1988 SC 1205 . 9. After perusing the plaint along with its annexure and on hearing the learned Counsel for the rival parties, it becomes clear that the sole question which falls for consideration in this appeal is whether on the expiry of the agreement dated 13-1-2003, which was operative for a period of one year, the clauses conferring exclusive jurisdiction upon the Courts in Mumbai to decide any dispute arising out of the said agreement also perished with it. In other words, whether there is prima facie evidence to show that there was an agreement sub silentio between the Appellant and the Respondent to continue to govern themselves by the terms and conditions of the agreement dated 13-1-2003 notwithstanding the fact that the period of the agreement originally fixed therein had come to an end on 12-1-2004. The doctrine was explained by the Apex Court in Godhra Electricity Co. The doctrine was explained by the Apex Court in Godhra Electricity Co. Ltd. v. State of Gujarat (1975) 1 SCC 199 in the following manner: 16. We are not certain that if evidence of subsequent acting under a document is admissible, it might have the result that a contract would mean one thing on the day it is signed but by reason of subsequent event it would mean something a month or year later. Subsequent 'interpreting' statements might not always change the meaning of a word or a phrase. A word or a phrase is not always crystal clear. When both parties subsequently say that by the word or phrase which, in the context, is ambiguous, they meant this, it only supplies a glossary as to the meaning of the word or phrase. After all, the inquiry is as to what the intention of the parties was from the language used. And why is it that parties cannot clear the latent ambiguity in the language by a subsequent interpreting statement? If the meaning of the word or phrase or sentence is clear, extrinsic evidence is not admissible. It is only when there is latent ambiguity that extrinsic evidence in the shape of interpreting statement in which both parties have concurred should be admissible. The parties themselves might not have been clear as to the meaning of the word or phrase when they entered into the contract. Unanticipated situation might arise or come into contemplation of the parties subsequently which would sharpen their focus and any statement by them which would illuminate the darkness arising out of the ambiguity of the language should not be shut out. In the case of ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible. The question involved is this: Is the fact that the parties to a document, and particularly to a contract, have interpreted its terms term in a particular way and have been in the habit of acting on the document in accordance with that interpretation, any admissible guide to the construction of the document ? In the case of an unambiguous document, the answer is 'No'. (See Odgers' Construction of Deeds and Statutes, 5th Edn. by G. Dworkin, pp. 118-119). But, as we said, in the case of an ambiguous one, the answer must be 'yes'. In the case of an unambiguous document, the answer is 'No'. (See Odgers' Construction of Deeds and Statutes, 5th Edn. by G. Dworkin, pp. 118-119). But, as we said, in the case of an ambiguous one, the answer must be 'yes'. In Lamb v. Goring Brick Co., a selling agency contract contained the words "the price shall be mutually agreed". Documents showing the mode adopted for ascertaining the price were put in evidence without objection. In the Court of Appeal, Greer, L.J. said: In my opinion, it is not necessary to consider how this contract was acted on in practice. In there had been an ambiguity and the intention of the parties had been in question at the trial, I think it might have been held that the parties had placed their own construction on the contract and, having acted upon certain view, had thereby agreed to accept it as the true view of its meaning. 10. In Bharat Petroleum Corporation Ltd. (supra), the Apex Court was again confronted with the same legal controversy. The controversy arose when a time charter party was entered into between the Appellant and the Respondent on 6.5.1997 for letting on hire vessels for a period of two years. This was subsequently extended for one month with an option for two further extensions for a period of fifteen days each. The terms and conditions; exceptions and exemptions contained in the charter party dated 6.5.1997 remained unaltered for the extended period as well. The parties were ad idem that the charter party dated 6.5.1997 was extended till 31.8.1998. Pending finalization of a new charter party for the period commencing from 1.9.1998 there were various offers and counter-offers exchanged between the parties as to the terms on which the charter party was to continue pending the finalization of a new charter party from 1.9.1998. At every stage the Respondent clearly stated that since the tender was not finalized, as per usual practice pending finalization of a new charter, the existing terms and conditions of the charter party continue to apply. Though no firm interim agreement could be arrived at, admittedly, the vessels of the Respondents, including one Jag Praja continued to be chartered by the Appellant till 31.8.1999. Ultimately, on failure of all negotiations the Respondents called upon the Appellant to pay balance amount of Rs. Though no firm interim agreement could be arrived at, admittedly, the vessels of the Respondents, including one Jag Praja continued to be chartered by the Appellant till 31.8.1999. Ultimately, on failure of all negotiations the Respondents called upon the Appellant to pay balance amount of Rs. 4.4 crores to them as charter hire in respect of vessel Jag Praja for the period from 1.9.1998 to 31.8.1999 within fifteen days from the date of receipt of the said notice or treat it as an arbitration notice. The name of the arbitrator was also communicated to the Appellant. Pursuant to the notice and some subsequent correspondences exchanged between the parties, an Arbitral Tribunal was constituted. The Tribunal was of the view that with the performance original charter party dated 6.5.1997 got extinguished, and hence it had no jurisdiction. The award of the Tribunal was challenged before the High Court, which set aside the award by holding that the charter party dated 6.5.1997 did not come to an end by efflux of time and it was extended by the parties on the same terms and conditions except the rate of hire. This was challenged before the Apex Court by special leave. The question that arose before the Apex Court was whether on the expiry of the extended period of charter hire on 31.8.1998, the charter party dated 6.5.1997 came to an end and the arbitration agreement between the parties perished with it? Answering the question in the negative and dismissing the appeal, the top Court held at paras 19 and 20 of the judgment: 19. It is, no doubt, true that the general rule is that an offer is not accepted by mere silence on the part of the offeree, yet it does not mean that an acceptance always has to be given in so many words. Under certain circumstances, offeree's silence, coupled with his conduct, which takes the form of a positive act, may constitute an acceptance/an agreement sub silentio. Therefore, the term of a contract between the parties can be proved not only by their words but also by their conduct. 20. In our view, the principle of sub silentio is clearly attracted in the present case. Therefore, the term of a contract between the parties can be proved not only by their words but also by their conduct. 20. In our view, the principle of sub silentio is clearly attracted in the present case. As noted above, after the extended period of charter party dated 6.5.1997 had come to an end on 31.8.1998 and the bids received pursuant to fresh invitation were pending finalization, vide their letter dated 12.10.1998, the Respondent had informed the Appellant that they were agreeable to apply new rates for use of the vessel from 1.7.1998 provided all the nine vessels are used. However, on 31.10.1998, the Appellant faxed IOC's message informing them of the extension of the existing coastal tanker fleet for the month of October 1998 at reduced rates viz. 80% of the charter rates prevailing till 30.8.1998. On receipt of the said letter, the Respondent vide their letter dated 5.11.1998 protested against the revision of the rates for the vessel not being considered under the new bid and stated in unequivocal terms that it was not possible for them to accept the proposal of the Oil Coordination Committee, communicated to them vide letter dated 12.10.1998. Yet again while responding to the Appellant's fax dated 31.12.1998, whereby the Respondent was required to sign a provisional charter party by 4.1.1999, vide their letter dated 4.1.1999, the Respondent pointed out to the Appellant that usual practice is that pending finalization of the new charter, the existing terms and conditions of the charter party continue to apply and, therefore, they were willing to sign the agreement as contemplated by the Appellant based on the existing terms and conditions. It was suggested that an agreement may be signed between them for the period from 1.9.1998 until the matter was finally decided by the Appellant under the tender, on the existing terms and conditions with the charter hire being provisionally paid on an ad hoc basis at 90% of the rate which was prevailing under the existing charter party. As noted herein above, there was no response by the Appellant to the Respondent's letter dated 4.1.1999 though it appears that vide their letter of even date, the Appellant did suggest to the Respondent that as a token of formal agreement the said letter may be jointly signed by the charterers and the vessel owners. As noted herein above, there was no response by the Appellant to the Respondent's letter dated 4.1.1999 though it appears that vide their letter of even date, the Appellant did suggest to the Respondent that as a token of formal agreement the said letter may be jointly signed by the charterers and the vessel owners. Admittedly, no such agreement was signed between the parties during the year. Nevertheless, the Appellant continue to use the vessel on hire with them under the time charter dated 6.5.1997. The conduct of the parties, as evidenced in the said correspondence and, in particular the Appellant's silence on the Respondent's letters dated 5.11.1998 and 4.1.1999, coupled with the fact that they continued to use the vessel, manifestly goes to show that except for the charter rate, there was no other dispute between the parties. They accepted the stand of the Respondent sub silentio and thus continued to bind themselves by other terms and conditions contained in the charter party dated 6.5.1997, which obviously included the arbitration clause. 11. It is true that where parties have entered into a written agreement with express stipulations, it is not desirable to extend them by implication; the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument. See Legal Maxims by Herbert Broom, 10th Edn. at Page 443, a book relied on by the learned Counsel for the Appellant. But then, the same book at page 444 says that great caution is necessary in dealing with the maxim expression unius est exclusion alterius, for, as Lord Campbell observed in Saunders v. Evans, it is not of universal application, but depends upon the intention of the party as discoverable upon the face of the instrument or of the transaction, thus, where general words are used in a written instrument, it is necessary, in the first instance, to determine whether those general words are intended to include other matters besides such as are specifically mentioned, or to be referable exclusively to them, in which latter case only can the above maxim be properly applied. If there is still any doubt on this score, the same has been unambiguously dispelled by the Apex Court in Bharat Petroleum Corporation Ltd. (supra) by application of the doctrine of an agreement sub silentio. If there is still any doubt on this score, the same has been unambiguously dispelled by the Apex Court in Bharat Petroleum Corporation Ltd. (supra) by application of the doctrine of an agreement sub silentio. It is against the backdrop of the aforesaid legal principles that we now propose to examine as to whether a clear case of agreement sub silentio can be inferred from the documents relied on by the learned Counsel for the Respondent, which are annexed to the plaint filed by the Appellant. As already noticed, the agreement dated 13.1.2003 was admittedly not extended by the parties by mutual agreement. However, it is the case of the Respondent that even though the agreement was not expressly extended by the parties by mutual agreement, yet the subsequent conduct of the Appellant left no room for doubt that the parties continued to be governed by the said agreement till it was formally terminated by the letter dated 6.4.2006 of the Respondent and, as such, the principle of agreement sub silentio is clearly attracted in the present case. This leads us to examine the various letters addressed to the Appellant by the Respondent. 12. As already noticed, by the letter dated 6.4.2006 sent by the Respondent to the Appellant, it has been pointed out that the Respondent had communicated to the Appellant about the poor functioning of their operations as their C&FA during the previous one year and that as there had been no improvement in their working, they had no option but to stop the C&FA operations with effect from 31.5.2006. The Appellant in their reply dated 22.4.2006 to the said letter stated that "Regarding functioning of our C&FA we like to inform you that there are definite improvements on our operation. You yourself admitted that you got wholehearted co-operation from our staff in your recent working in our C&FA for quite a long time". Towards the end of the letter, it was further stated that "That, Sir, we once again reassure you that we will give you better service than even before." In our opinion, the sentences quoted above are indicative of the fact that the parties continued to be governed by the original agreement beyond 13.1.2004 notwithstanding the fact that the original agreement was not expressly extended by them by mutual agreement. Then comes the letter dated 28.6.2006 wherein the Respondent after reminding the Appellant that the C&FA operations carried out by the latter had to be closed with effect from 31.5.2006, requested them (the Appellant) to send them (the Respondent), among others, all the closing stock as on 31.5.2006 and the sales tax assessment orders for the years 2002-2003, 2003-2004, 2004-2005 and 2005-2006. This plainly shows that the original agreement continued to be observed by the parties even after 13.1.2004 contrary to the claim made by the Appellant otherwise what was the need for the assessment orders for the years beyond 2004 if goods were not dispatched to them beyond 2004 on the basis of the agreement dated 13.1.2003? Next is the letter dated 3.7.2006 addressed to the Respondent by none other than the Appellant wherein the Appellant protested the termination of their C&FA operation with effect from 31.5.2006 and the appointment of a new C&FA in their place "in view of your company's action in continuing with the taking of our services pursuant to 1.6.2006". The Appellant also informed the Respondent therein that "if your company is not willing to continue with us as your company's C&FA Agent, we would request you to kindly settle our dues as mentioned herein above as expeditiously as possible". Interestingly, the Appellant for the first time in their letter dated 7.8.2006 took the stance that the termination of their agency by the Respondent in terms of the agreement dated 13.1.2003 was irrelevant inasmuch as the same was not extended mutually in writing. This appears to be contrary to the stance taken by them in their letters dated 3.7.2006 referred to earlier. Thus, on the basis of the aforesaid correspondences exchanged between the parties, it is difficult to accept the contention of the Appellant that the agreement dated 13.1.2003 spent its force on 12.1.2004 by efflux of time and was never acted upon by them thereafter and that the clauses in the said agreement giving exclusive jurisdiction upon the Courts in Mumbai to decide the dispute between them arising out of the said agreement also perished with it. In other words, the conduct of the parties as revealed by the aforesaid correspondences annexed to the plaint unmistakably goes to show that the Appellant accepted the stand of the Respondent sub silentio and thus continued to bind themselves by the terms and conditions incorporated in the agreement dated 13.1.2003, which included the clauses relating to the ouster of jurisdiction of the Courts in Guwahati to entertain any dispute arising out of the said agreement. The principle of agreement is clearly attracted to the facts of this case. Therefore, there is no infirmity in the impugned order passed by the learned Civil Judge in returning the plaint to the Appellant for presentation to the competent Court of jurisdiction prescribed by the parties in the said agreement. In the view that we have taken, it is not necessary for us to deal with the other contentions of the learned Counsel for Appellant and the Respondent, which are incorporated in their written submissions dated 4.1.2011 and 21.1.2011 respectively. 13. The result of the foregoing discussion is that there is no merit in this appeal, which is hereby dismissed. The interim order passed earlier stands vacated. The Appellant, if so advised, will represent the plaint to the Court having the territorial jurisdiction to entertain the suit. However, on the facts and in the circumstances of the case, we pass no order as to costs. Appeal dismissed.