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Himachal Pradesh High Court · body

2016 DIGILAW 495 (HP)

Ice Cream Garden v. Graviss Foods Pvt. Ltd.

2016-04-18

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The plaintiffs instituted a suit against the defendant for recovery of the expenses incurred and damages suffered by them arising from the act of the defendant stopping to that too in the peak season of 2010-11 supply to the plaintiffs the stock of ice-cream agreed to be supplied by the defendant to the plaintiffs under a franchise agreement executed inter se both on 24.04.2011. It stands averred in paragraph 4 of the plaint of the franchise agreement though standing entered into inter se the parties at lis on 24.04.2011 yet it being made applicable for six months w.e.f. 25.10.2010. Moreover, a perusal of the relevant clause 2.1 of the apposite franchise agreement reveals of its being effective for a period of six months computable from 25th October, 2010 whereafter it being open to be renewed for a further period of five years. The franchise agreement stood unrenewed interse the franchiser and the franchise yet as apparent on a reading of the averments constituted in paragraph 7 of the plaint of given the defendant/applicant on the intervention of Sh. Sunil Khanna purveying to the plaintiffs/non applicants stock of ice cream in the year 2013 supply whereof of stock of ice cream by the defendant-applicant to the plaintiffs continuing upto August, 2014 whereafter the former arbitrarily stopped supplying stock of ice cream to the latter. The reasons as stands ascribed for the defendant stopping the supply of stock of ice cream to the plaintiffs is constituted in the factum of the defendant insisting for an advance payment to it of a sum of money equivalent to the stock of ice cream demanded from it by the plaintiffs, through RTGS in departure to the earlier mode adopted by the plaintiffs making payment to the defendant by way of cheques on theirs receiving from the defendant the stock of ice cream. In sequel to the defendant refusing to supply to the plaintiffs the stock of ice cream since August, 2014 on the score of the plaintiffs not adhering to its demand of making advance payment to it by way of RTGS constrained the plaintiffs to issue a notice on 1.9.2014 upon the defendant. In response thereto the defendant applicant flatly refused to abide by its commitments. In response thereto the defendant applicant flatly refused to abide by its commitments. It is apt to extract hereinafter the relevant portion of the reply furnished by the defendant applicant to the notice of 1.9.2014 served by the plaintiffs upon it: ? Issue No.1 Regarding Advance RTGS payment. As promised the invoice was sent to you on August 21, 2014 requesting you to do the RTGS to enable us to supply the stocks as early as possible as delays would have bothered both yourself and the company of the loss of the sale at the parlor. Instead of complying with the request you choose to write an email on August 21, 2014 to Mr. Rana and our CFO Mr. Sanjay Coutinho again raising underweight issue and denying to make RTGS and sticking that you will make payment on delivery of stock as you are doing business since last 9 years and also showed your dissatisfaction towards Mr. Rana who is one of the good employee in the sales team since last many years. Mr. Arindram immediately replied to your email politely and clarified the position of the Company requesting your cooperation. We once again reiterate the same clarification. Mr. Arindham and Mr. Rana subsequently had send emails to you for doing the RTGS but you have not complied with the same till date. Issue No.2. Renewal Fees. As already discussed in our earlier email correspondence and explained to you as the shop is shown to be reopened, the renewal fees is to be made and moreover since you have shifted to a new location without informing the company and to the dissatisfaction of the company, we reiterate our position that you shall have to either pay the franchisee renewal fees as per the clause 2.2.1 of the Franchisee agreement – Annexure -1 before we can continue any further operations. Issue No.3: Renewal of franchisee agreement. The agreement clearly mentions the period for which it is valid. The last franchisee agreement we had with you have already expired way back in 2011 but as we as company were interested with the business we supplied stocks and continued in spite of renewing the agreement and also the shop was closed for fed months. Every renewal of the franchisee agreement attracts a renewal fee and this is applicable to all the franchisee including the one which are our pioneer franchisees. Every renewal of the franchisee agreement attracts a renewal fee and this is applicable to all the franchisee including the one which are our pioneer franchisees. We reiterate our position that it is not possible for us to continue the business operations without renewing the agreement between us which has expired in the year 2011 with suitable modifications as deemed fit by the company. Issue No.4: Parlor Renovation. The international team of Baskin and Robbins has instructed for the refurbishment and renovation of the parlor and further the team has taken strict measures with regard to hygiene standards at the parlors keeping in view the recent changes in the Food Laws in India. You are fully aware that the said parlor has to be renovated immediately with proper branding, proper wall partition and water connection before the operation can be commenced any further as any discrepancies found by the international team shall be of great loss to the Company resulting in termination of your franchisee with the Company which the company will be unable to resolve. Issue No.5: FSSAI License/Other compliances All the licenses/compliances required for running the stores including FSSAi licence shall be solely procured/duly complied by you at your own cost and the company shall not be responsible in any way for any default in this respect from you end. So it is once again called upon you to do the needful immediately. 2. Given the response furnished by the defendant to the plaintiffs' notice of 1.9.2014, the plaintiffs were constrained to institute a Civil Suit for damages suffered by it arising from various acts of omission and commission delineated in the plaint besides relief of mandatory injunction stood claimed therein from this Court for enjoining the defendant applicant to restore the supply of stock of ice cream to the plaintiffs. On notice of the plaint standing served upon the defendant, the latter instituted an application under Section 8 of the Arbitration and Conciliation Act, 1996 with a prayer therein qua given the existence of an arbitration clause bearing no. On notice of the plaint standing served upon the defendant, the latter instituted an application under Section 8 of the Arbitration and Conciliation Act, 1996 with a prayer therein qua given the existence of an arbitration clause bearing no. 22.2 comprised in the franchise agreement of 24.4.2011 executed inter se the parties at lis, the suit of the plaintiffs stood rendered untriable by this Court in exercise of its original civil jurisdiction rather enjoined this Court to pass a direction of the parties resolving their disputes or differences through the mechanism of arbitration besides of the suit of the plaintiffs non applicants being ordered to be dismissed or stayed. 3. The aforesaid application was resisted by the plaintiffs by filing a reply thereto. The counsel for the defendant-applicant in espousing qua the averments comprised in his apposite application of the dispute embedded in the plaint which stood erupted inter se the parties at lis being referable to arbitration standing possessed with legal sinew, has contended qua the scope and magnitude of the arbitration clause 22.2, which stands extracted hereinafter, being copiously plenary for ousting the jurisdiction of this Court in trying the suit instituted before it by the plaintiffs especially when the civil action for damages or compensation put in motion by the plaintiffs stands pinned upon averments displaying purported breach of the franchise agreement executed inter se the parties at lis. “All disputes or differences arising between parties out of or relating to the construction meaning, operation or effect of this agreement or breach thereof, shall be settled by arbitration as per Arbitration and conciliation Act, 1996. It is agreed that in case Arbitration becomes necessary, it will be held at Mumbai. The arbitration shall be presided over by a single arbitrator appointed by the Franchisors.? The countenancing or discountenancing the submission addressed before this Court by the counsel for the applicant-defendant would enjoin this Court to fathom besides garner from the apposite arbitration clause 22.2 comprised in the franchise agreement executed inter se the parties at lis qua the prima donna factum of its constituting a valid arbitration clause in ouster of the original civil jurisdiction of this Court invoked by the plaintiffs/non applicants by instituting a Civil Suit against the defendant/applicant. However, in the aforesaid endeavour to accept or reject the submission addressed before this Court by the counsel for the defendant applicant of the dispute engaging the parties at lis as stands embodied in the plaint palpably arising from the applicant defendant infringing or breaching the conditions or the terms of franchise agreement entered inter se the litigating parties, being arbitrable or not, it is imperative to cull out whether the indispensable requirements, tenets or rudimentary principles stand ingrained in the arbitration clause for hence its standing construed to carry the intrinsic elements enjoined to inhere in a valid arbitration clause. The indispensable requirements or tenets which stand enjoined to be intrinsically ingrained in an arbitration clause for it to constitute a valid and binding agreement in ouster of the jurisdiction of the Civil Court to try the lis encompassing the subject matter purportedly falling within the ambit of the arbitration clause are encapsulated in a judgement of the Hon'ble Apex Court titled Bihar State Mineral Dev. Corpon and another Vs. Encon Builders (I) Pvt. Ltd. 2003(7) SCC 418 , whose relevant portion stands extracted hereinafter: 1. There must be a present or a future difference in connection with some contemplated affair. 2. There must be the intention of the parties to settle such difference by a private tribunal. 3. The parties must agree in writing to be bound by the decision of such tribunal. 4. The parties must be ad idem. 4. Bearing in mind the afore extracted principles, which stand enjoined in the afore extracted portion of the judgement of the Hon'ble Apex Court to stand innately embodied in an arbitration clause, an immediate allusion to the apposite clause 22.2 encapsulated in the franchise agreement is imperative. An advertence thereto unveils the factum of all disputes and differences inter se the litigating parties arising out of or relating to the construction meaning, operation or effect of the agreement or breach thereof, being mandatorily settleable by arbitration in consonance with Arbitration and Conciliation Act, 1996. The scope and amplitude of the apposite arbitration clause 22.2 of the franchise agreement executed inter se the parties at lis, is plenary in its gamut and width qua factors, subject matters or parameters recited therein being mandatorily settleable by arbitration. The scope and amplitude of the apposite arbitration clause 22.2 of the franchise agreement executed inter se the parties at lis, is plenary in its gamut and width qua factors, subject matters or parameters recited therein being mandatorily settleable by arbitration. Nonetheless, the import and effect of the sentence occurring thereafter inasmuch as its recording the factum of the parties agreeing or being ad idem qua theirs opting for the mechanism of arbitration, only when through its availment settlement of any dispute upsurging inter se them embodying the factors delineated in the sentence preceding it becomes necessary, cannot be lost sight of. The arbitration clause embedded in the franchise agreement has to be read in its entirety and harmoniously. In sequel, even when the initial sentence constituted therein does bespeak of a consensus ad idem existing inter se the litigating parties qua their disputes or differences being resolvable through the mechanism of arbitration yet even when the initial sentence embedded in the apposite arbitration clause displays of its enjoining the parties to settle any dispute or differences as upsurge or arise amongst them impinging upon the parameters or factors encapsulated therein by theirs resorting to mechanism of arbitration. However, the aforesaid initial sentence occurring therein has not to be read in isolation or in a piecemeal manner rather for gathering the subtle nuance of the essence of the entire arbitration clause, its reading in its entirety is imperative. A reading whereof in its entirety would beget an inference of the binding effect of the consensus ad idem occurring in the initial sentence of the apposite arbitration clause, of the differences or dispute emerging inter se the litigating parties devolving upon the factors or parameters contained therein suffering, by the sentence subsequent to it incorporated in the apposite arbitration clause, a denudation or dwindlement. The rigour of the initial sentence constituted in the apposite arbitration clause though manifestive of a consensus ad idem standing displayed therein of the parties at lis covenanting to settle through the mechanism of arbitration their emerging disputes touching upon the factors delineated therein standing dwindlement, is evident from the subsequent sentence occurring thereat with a graphic articulation therein of the parties also agreeing of theirs settling their emerging disputes through the aegis or mechanism of arbitration only when their settlement thereof through the mechanism of arbitration stands also agreed by them to be necessary, in event whereof the seat of arbitration would be at Mumbai. With the binding effect of the apposite initial sentence contained in the apposite arbitration clause suffering a whittling down or an erosion in its rigour of its imposing an unfettered fiat or dictate upon the parties at lis to resolve their differences or disputes devolving upon the parameters or factors delineated therein, by the sentence subsequent thereto occurring therein, with a predominant echoing therein of the parties also covenanting to arrive at a subsequent consensus ad item, enjoining both to evince a volitional consent for resolving their differences or disputes impinging upon the frontiers or factors delineated in the sentence preceding the apposite contemplation in the sentence subsequent to it besides with a voicing therein of a further consensus ad idem standing enjoined to be struck by them qua the imperativeness of resolution of their emerging disputes through the mechanism of arbitration, is a vivid portrayal of:- (a) it constituting a covenant, of the parties standing entailed to record a consensus qua the imperativeness of resolution of their differences through arbitration. (b) The consensus ad idem standing enjoined to be arrived at or struck inter se the parties at lis qua the imperativeness of resolution of their disputes through the mechanism of arbitration, not leaving beyond its gamut the factors or parameters occurring in the sentence preceding it occurring in the arbitration clause (c) The import or the salient nuance of the initial sentence ?all dispute or differences arising between parties out of or relating to the construction, meaning, operation or effect of this agreement or breach thereof, shall be settled by arbitration as per Arbitration and conciliation Act, 1996? comprised in the apposite arbitration clause of the franchise agreement recorded inter se the parties at lis, on its standing read harmoniously and in coagulation with the sentence occurring subsequent to it, especially with the subsequent sentence whereof stands couched in the phraseology ?It is agreed that in case Arbitration becomes necessary, it will be held at Mumbai? the arbitration shall be presided over by a single arbitrator appointed by the Franchisors.?, is of its embodying therein a mandate upon the parties to enter into or record in future an arbitration agreement for through the mechanism envisaged therein resolve their emerging disputes touching upon or impinging upon besides devolving upon the parameters delineated in the sentence preceding it. (d) In case the initial sentence of the apposite arbitration clause would have remained unsucceeded by a subsequent sentence occurring therein it would have constituted a binding arbitration clause ousting the jurisdiction of the Civil Court to try the disputes or differences devolving upon the parameters or factors delineated therein. However, when it stands succeeded by the sentence aforesaid the impact of the binding nature of the covenant preceding it mandating the parties to resolve their emerging disputes or differences through theirs resorting to the mechanism of arbitration stands effaced especially when the aforesaid sentence is nebulously couched in an ambiguous besides loosely worded phraseology leaving it open to an interpretation of only in the event of arbitration becoming necessary the parties agreeing to opt for arbitration as a mechanism for resolving their emerging disputes and differences, with an inbuilt echoing therein of resort by them to the mechanism of arbitration being subject to or contingent upon theirs also recording a consensus ad idem qua the preeminent factum of theirs preferring to resolve their emerging disputes and differences through the mechanism of arbitration prior to theirs ultimately availing or opting for the mechanism of arbitration as a mode to resolve their emerging disputes and differences besides theirs also being at consensus ad idem qua its availment becoming necessary. As a sequitur, with the availment of the mechanism of arbitration by the parties at lis for begetting resolution of their emerging disputes and differences standing concluded by this Court to be subject to or contingent upon theirs also recording prior to theirs ultimately availing the mechanism of arbitration for resolving their disputes, a consensus ad idem of arbitration becoming necessary for settling their differences or disputes, forecloses a deduction of the initial sentence of the apposite arbitration clause being not absolute in its dictate of the emerging disputes and differences inter se the parties at lis being imperatively resolveable only through theirs opting for the mechanism of arbitration rather its effect or rigour suffering effacement in the face of the sentence subsequent to it conditioning or besides diluting its rigour. 5. In sequel, with the aforesaid signification standing lent to the arbitration clause on its reading in a wholesome and harmonious manner, the rudimentary principle or indispensable tenet enjoined to stand incorporated in an arbitration clause for sustaining the submission of the learned counsel for the defendant applicant of the disputes as stand emerged interse the parties being arbitrable or resolvable only through theirs resorting to the mechanism of arbitration hence stripping the original civil court jurisdiction of this Court concomitantly besides rendering the suit as constituted before this Court by the plaintiffs against the defendant being not maintainable, obviously stand unsatiated. Furthermore, the inference as recorded hereinabove of a close, incisive and harmonious besides a wholesome reading of the arbitration clause foreclosing an inference of its recording the parties covenanting in future to enter into an arbitration agreement for rendering the disputes as stand emerged inter se them within the frontiers or parameters delineated in the initial sentence of the apposite arbitration clause in succession whereof the occurrence of a covenant therein qua the recording by the parties of their agreeing to in future enter into an arbitration agreement for resolving their disputes through the mechanism of arbitration hence whittling down or denuding its effect of its constituting a binding agreement besides rendering amenable to invocation the civil original jurisdiction of this Court gets succor from a judgement of the Hon'ble Apex Court reported in Jagdish Chander vs. Ramesh Chander and Others, 2007(5) SCC 719 . The relevant paragraph whereof stands extracted hereinafter:- ?8.(IV) But mere use of the word arbitration or arbitrator in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words, such as parties can, if they so desire, refer their disputes to arbitration or in the event of any dispute, the parties may also agree to refer the same to arbitration or if any disputes arise between the parties, they should consider settlement by arbitration in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that if the parties so decide, the disputes shall be referred to arbitration or any disputes between parties, if they so agree, shall be referred to arbitration is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses required the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future.? 6. In addition a wholesome reading of the import of the arbitration clause, pointedly of the sentence aforesaid is of the parties being at consensus ad idem of theirs not solitarily or singularly choosing the mechanism of arbitration for resolving their differences or disputes which arise inter se them disputes whereof stand adumbrated in the sentence preceding it rather with a voicing therein of theirs choosing through a consensus ad idem recorded by them of the emerging disputes inter se them being resolvable through resort by them to the mechanism of arbitration only when resort thereof is deemed necessary or absolutely imperative, is connotative of the parties leaving open to each, the option of choosing for redressing their grievances or differences spelt out in the initial sentence of the apposite arbitration clause, by the mode or mechanism of arbitration or the option of availment by the aggrieved the remedy of approaching the Civil Court of competent jurisdiction. The options or choices left to the parties at lis in the second sentence of the apposite arbitration clause for settling their emerging disputes arising from breach of agreement by either inasmuch as (a) option to them to either resort to the mechanism of arbitration or approach the Civil Court of competent jurisdiction is not manifestive of it constituting a binding covenant upon the parties to choose arbitration alone for resolving their differences. With wide choices or avenues made available in the arbitration clause to the parties to chose either arbitration as the mechanism for resolving their dispute or theirs approaching a Civil Court of competent jurisdiction for redressing their grievances, renders it not to constitute a binding arbitration clause arrived at volitionally inter se the parties at lis, for its entailing this Court to countenance the submission of the learned counsel for the defendant. The ambiguity qua the facet aforesaid especially qua it tacitly reserving a right in the covenanting parties to approach also a Civil Court of competent jurisdiction for redressing their grievances renders the apposite arbitration clause to lose its vigour rather contrarily it gives succor to the submission addressed before this Court by the learned counsel for the plaintiffs non applicants of this Court enjoying jurisdiction to maintain and to try the civil suit. In coming to the conclusion qua on a reading of the apposite arbitration clause it foreclosing an inference of its being nebulously/ambiguously worded qua arbitration being the binding solitarily covenanted mechanism for resolving their disputes as arise inter se them rather its tacitly conferring jurisdiction upon a Civil Court, to especially when an option is left to the parties to the franchise agreement, to approach a civil court of competent jurisdiction for resolution of their disputes as arise devolving upon the parameters occurring in the initial sentence of the apposite arbitration clause renders it not to constitute a binding arbitration clause, in ouster of the jurisdiction of the Civil Court, this Court draws succor from a the judgement of the Hon'ble Apex Court titled as Wellington Associates Ltd. Vs. Mr. Kirit Mehta, reported in 2000 (4) SCC 272 , the relevant paragraph whereof stands extracted hereinafter:- ?22. It is contended for the petitioner that the word 'may' in Cl. 5 has to be construed as 'shall.' According to the petitioner's-counsel, that is the true intention of the parties. Mr. Kirit Mehta, reported in 2000 (4) SCC 272 , the relevant paragraph whereof stands extracted hereinafter:- ?22. It is contended for the petitioner that the word 'may' in Cl. 5 has to be construed as 'shall.' According to the petitioner's-counsel, that is the true intention of the parties. The question then is as to what is the intention of the parties? The parties, in my view, used the words 'may' not without reason. If one looks at the fact that Cl. 4 precedes Cl. 5, one can see that under Cl. 4 parties desired that in case of disputes, the Civil Courts at Bombay are to be approached by way of suit. Then follows Cl. 5 with the words 'it is alsoagreed' that the dispute 'may' be referred to arbitration implying that parties need not necessarily go to the Civil Court by way of suit but can also go before an arbitrator. Thus, Cl. 5 is merely an enabling provision as contended by the respondents. I may also state that in cases where there is a sole arbitration clause couched in mandatory language, it is not preceded by a clause like Cl. 4 which discloses a general intention of the parties to go before a Civil Court by way of suit. Thus, reading Cl. 4 and Cl. 5 together, I am of the view that it is not the intention of the parties that arbitration is to be the sole remedy. It appears that the parties agreed that they can "also" go to arbitration also in case the aggrieved party does not wish to go to a Civil Court by way of a suit. But in that event, obviously, fresh consent to go to arbitration is necessary. Further, in the present case, the same Cl. 5, so far as the venue of arbitration is concerned, uses word 'shall.' The parties, in my view, must be deemed to have used the words 'may' and 'shall' at different places, after due deliberation. [23] A somewhat similar situation arose in B. Gopal Das v. Kota Straw Board, AIR 1971 Raj 258 . In that case the clause read as follows : "That in case of any dispute arising between us, the matter may be referred to arbitrator mutually agreed upon and acceptable to you and us." It was held that fresh consent for arbitration was necessary. In that case the clause read as follows : "That in case of any dispute arising between us, the matter may be referred to arbitrator mutually agreed upon and acceptable to you and us." It was held that fresh consent for arbitration was necessary. No doubt, the above clause was a little clearer there than in the case before me. In the above case too, the clause used the word 'may' as in the present case. The above decision is, therefore, directly in point.? 7. The learned counsel for the applicant/defendant has relied upon a decision of the Hon'ble Apex Court reported in A.B.C.Laminart Pvt. Ltd. and another vs. A.P.Agencies, Salem, (1989) 2 SCC 163 , the relevant paragraphs 16 and 17 whereof stand extracted hereinafter, to contend of with the apposite clause 22.3, as extracted hereinafter, conferring exclusive jurisdiction upon civil Courts located in Mumbai, the civil Courts located thereat enjoy exclusive jurisdiction to maintain any legal or judicial proceedings initiated by any party to the franchise agreement, in ouster of the jurisdiction of this Court to try the instant suit. ?[16] So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must, be declared void being against public policy. Would this be the position in the instant case ? [17] In S. Manuel Raj & Co. v. J. Manilal & Co., AIR 1963 Guj. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must, be declared void being against public policy. Would this be the position in the instant case ? [17] In S. Manuel Raj & Co. v. J. Manilal & Co., AIR 1963 Guj. 148 : 1963 GLR 540 where one of the parties to the contract signed an order form printed by the other party containing the words 'subject to Madras jurisdiction' and sent the order form to the other party it was held that the party must be assumed to have agreed that Madras was the place for settlement of the dispute and it was not open to that person who signed the order form of the opposite party containing the printed words to show that printed words were not part of the contract and that these words in the contract was to exclude the jurisdiction of other Courts and to keep sole jurisdiction to one Court. It was observed that the object of printing such words, as 'subject to Madras jurisdiction' in the contract was to exclude the jurisdiction of other Courts and to give sole jurisdiction to one Court and it was in consonance with the commercial practice in India. Similarly in Sri Rajendra Mills v. H. V. M. Hazi Hassar Dada, AIR 1970 Cal. 342 where there was a contract between the plaintiff and defendant No. 1 under which the parties agreed that all suits arising on or out of the contract, would be instituted in, the Court at Salem, the Division Bench held that it was true that the suit could have been institued either at Salem or at Howrah under Sec. 20(c) of the Code of Civil Procedure, as the cause of action, admittedly arose in part in both the places and it was therefore a case where two Courts had concurrent jurisdiction and, in such a case, it was open to the parties to make a choice restricting the Court in which the suit under or upon the contract could be instituted. In other words, both the Courts having territorial jurisdiction, the parties by their agreement waived their right, to institute any action, as aforesaid except at Salem. In other words, both the Courts having territorial jurisdiction, the parties by their agreement waived their right, to institute any action, as aforesaid except at Salem. It was observed that under those circumstances it was not open to the plaintiff to object to the order for return of the plaint for presentation to the Court at Salem as the choice of forum in case of alternative forums lies with the plaintiff and the plaintiff having debarred or precluded itself from going to any other Court except at Salem which would be a proper Court as against the defendants it would not be just to allow the plaintiff at the instance of any other party or under cover of its objection to institute the suit except in the Court at Salem.? “Jurisdiction: The Courts in Mumbai alone will have exclusive jurisdiction in the event of any legal or judicial proceedings initiated by either party under this agreement.? 8. However, the aforesaid submission is legally unsound. Undisputedly, civil Courts both located within the territorial limits of Shimla as well as those located within the territorial limits of Mumbai would both enjoy jurisdiction to try the suit instituted by any party aggrieved by breach of the franchise agreement executed inter se the parties at lis especially when the defendant applicant had agreed to supply to the plaintiffs non applicants stocks of ice cream at Shimla moreso when in consonance thereof supply of stocks of ice cream stood purveyed by the defendant applicant to the plaintiffs at Shimla cumulatively also when in purported breach of the franchise agreement entered into inter se both, the defendant applicant stopped supply of stock of ice cream to the plaintiffs at its ice cream parlor located at Shimla engendering the accrual of cause of action to the plaintiffs within the territorial limits of Shimla besides with the registered office of the defendant applicant standing located at Mumbai, foisted jurisdiction upon civil Courts located within the territorial limits of Mumbai to maintain and adjudicate upon any suit arising from breach of contract or purported acts of omission and commission of the defendant. For reiteration both civil Courts located within the territorial limits of Shimla besides civil Courts located within the territorial limits of Mumbai enjoy jurisdiction to maintain and try the suit preferred before them by the aggrieved. For reiteration both civil Courts located within the territorial limits of Shimla besides civil Courts located within the territorial limits of Mumbai enjoy jurisdiction to maintain and try the suit preferred before them by the aggrieved. However, with the apposite clause 22.3 constituted in the franchise agreement conferring exclusive jurisdiction upon civil Courts located in Mumbai to maintain and adjudicate a civil suit instituted thereat by an aggrieved party, the Courts located thereat would alone enjoy jurisdiction in regard aforesaid, in sequel, obviously this Court would hence stand divested of jurisdiction to maintain and try the instant suit instituted before this Court by the plaintiffs. Nonetheless given the communications in the response filed by the defendant to the notice of 1.9.2014 served upon it by the plaintiffs of the apposite franchise agreement being no longer in subsistence it standing expired way back in the year 2011 concomitantly constrains this Court to conclude with aplomb of hence both the arbitration clause as well as clause 22.3, the latter whereof confers a tenable exclusive jurisdiction upon civil Courts located within the territorial limits of Mumbai to maintain and adjudicate suits instituted by the aggrieved thereat, standing stripped of their legal vigour and sinew. In sequel, the submission addressed before this Court by the learned counsel for the defendant of the afore-referred apposite clause ousting the jurisdiction of this Court to maintain and try the suit instituted before it by the plaintiffs, is unworthy of acceptance. In sequel, the application is dismissed. The suit filed by the plaintiffs before this Court is held maintainable. The defendant is directed to file written statement within four weeks.