Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1219 (GAU)

PANKAJ BAID v. BAWA MASALA COMPANY

2018-08-17

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. J.C. Gaur, the learned advocate for the petitioner as well as Mr. G.N. Sahewalla, the learned senior advocate, assisted by Ms. S. Katakey, the learned advocate for the respondent. 2. By this revision under Section 115 CPC read with Article 227 of the Constitution of India, the petitioner has challenged the order dated 25.10.2017, passed by the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati, in Misc. (J) Case No. 20/2017, arising in Money Suit No. 2/2016, by which, in exercise of jurisdiction under Section 21 CPC, the plaint was returned for filing the same before the appropriate Court at Delhi. 3. The learned advocate for the petitioner has submitted that in this case, the petitioner was appointed as C&F Agent for the respondent in the first week of June, 2013 for Assam and other North Eastern States excluding areas where the respondent already had agents. It is submitted that the petitioner had handed over security deposit of Rs. 1.00 Lakh and made payment of stocks sent vide bill dated 13.06.2013, but thereafter, the respondent did not provide the marketing support by not appointing sales representatives despite repeated request. It is also submitted that when the respondents became aware of the various issues raised by the petitioner, very cleverly, the respondent sent a C&F Agreement to the petitioner on 16.10.2013 for signature. On good faith, the petitioner had signed the same on 06.11.2013 and also made payment for goods supplied vide bill dated 09.11.2013. But, the respondent did not appoint sales representatives and unilaterally terminated the C&F Agency vide letter dated 23.01.2014, falsely blaming the petitioner. It is submitted that after receipt of termination letter, the petitioner had requested for settlement of accounts and, as such, the respondent had asked for return of unsold goods, as such, unsold goods valued at Rs. 4,86,956.56 was returned back on 21.05.2014. But, the respondent by not settling the account, had cheated the petitioner. In the process, the petitioner had suffered loss of Rs. 7,45,434.50 on false promise made by the respondent. Hence, the suit was filed. 4. It is submitted that no part of the financial transaction arose after signing of the agreement on 06.11.2013, but all the transactions between the parties, including handing over security deposit of Rs. 1.00 lakh were ante-dated. In the process, the petitioner had suffered loss of Rs. 7,45,434.50 on false promise made by the respondent. Hence, the suit was filed. 4. It is submitted that no part of the financial transaction arose after signing of the agreement on 06.11.2013, but all the transactions between the parties, including handing over security deposit of Rs. 1.00 lakh were ante-dated. Therefore, the clause No.11, reserving disputes to be subject to Delhi jurisdiction, as contained in the Agreement dated 16.10.2013, which was signed and sent by the petitioner on 06.11.2013, would not come in the way for adjudication of the suit at Guwahati, for transactions which partly arose in Guwahati. Moreover, it is submitted that the signature of the petitioner was obtained in the agreement dated 16.10.2013 by fraud and coercion, and by playing fraud and, as such, the said agreement was not valid and void ab-initio and, as such, the cognizance of the jurisdiction clause ought not to be taken. It is submitted that the petitioner had raised all the issues raised herein before the learned trial Court, but as the learned trial court did not appreciated the issues raised by the petitioner before it, this was a case of remand for a fresh decision in accordance with law. 5. It is also submitted that the petition under Section 21 CPC was not filed at the earliest available opportunity, but the respondent had caused undue delay in filing such application. In this connection it is stated that the respondent took adjournment on 12.05.2016, 13.06.2016 and then did not appear on 15.07.2016, as such, the suit was fixed for ex parte evidence on 19.08.2016, when the petitioner had filed their evidence-on-affidavit. However, on 19.08.2016, the respondent filed petition under O.9 R.7 CPC, which was allowed by order dated 08.11.2016 and the suit was fixed on 05.01.2017 for filing written statement, but on the said date, instead of filing written statement, the respondent had filed the said petition under Section 21 CPC, which was registered as a separate misc. case, being Misc. (J) Case No. 20/2017. Thus, it is submitted that the said petition, having not filed at the earliest moment, was liable to be rejected at the very threshold. 6. In support of his submissions, the learned advocate for the petitioner has placed reliance on the case of A.B.C. Laminart (P) Ltd. Vs. case, being Misc. (J) Case No. 20/2017. Thus, it is submitted that the said petition, having not filed at the earliest moment, was liable to be rejected at the very threshold. 6. In support of his submissions, the learned advocate for the petitioner has placed reliance on the case of A.B.C. Laminart (P) Ltd. Vs. A.P. Agencies, (1989) 2 SCC 163 and Swastik Gases Pvt. Ltd. Vs. Indian Oil Corporation Ltd., (2013) 9 SCC 32 . 7. Per contra, the learned senior advocate for the respondent has made his submissions in support of the order impugned herein. It is submitted that the agreement was never challenged and as such, a new plea cannot be taken in this revisional stage. It is submitted that the deposit of the security money prior to the date of the agreement, is of no consequence because clause 10 of the said agreement was for the said security deposit and that refund of security deposit was claimed in the suit. Moreover, it is submitted that the clause 13 for return of goods was only for damaged goods and the agreement provided that the goods once sold will not be taken back, but by referring to the plaint, it is submitted that the claim was also on count of unsold goods that were returned on 21.05.2014. Accordingly, it is submitted that once the oral agreement is supplemented with a written agreement for the same purpose and intent, the written agreement shall prevail. The learned senior advocate for the respondent has also placed reliance on the case of ABC Laminart and Swastik Gases , relied upon by the learned advocate for the petitioner. 8. It is seen that the dispute raised herein essentially relates to question as to whether the Courts at Guwahati has the jurisdiction to adjudicate the claim or whether the clause No. 11 conferring jurisdiction to Delhi Courts would act as an ouster of jurisdiction. 9. In this connection, on appreciating the facts, it would appear that in this case, all the transactions between the parties have occurred within the territorial jurisdiction of courts, both in Delhi and Guwahati. While the petitioner has their office at Guwahati, the respondent has its office at Delhi. While the security deposit was given by the petitioner at Guwahati, the same would have been received and accounted for in Delhi where the respondent is having office. While the petitioner has their office at Guwahati, the respondent has its office at Delhi. While the security deposit was given by the petitioner at Guwahati, the same would have been received and accounted for in Delhi where the respondent is having office. Similarly, while goods were billed and dispatched from Delhi, the same was received by the petitioner at Guwahati and similarly, the goods returned were sent from Guwahati to the respondent at Delhi. 10. It is projected in paragraph 4 of the plaint that it was verbally agreed that the petitioner would deposit a sum of Rs. 1.00 Lakh as security deposit, but upon reading the plaint as a whole, the date of making payment of the security deposit of Rs. 1.00 lakh is not stated, but when the security deposit clause is contained in the agreement dated 16.10.2013, it cannot be said that the said transaction was independent of the written agreement dated 16.10.2013. While it was projected that the order for supply of goods was made on 08.06.2013, which is prior to the agreement and while the petitioner has stated that the payment for supplies of goods under invoice dated 13.06.2013 for Rs. 7,96,007/- and Rs. 829/- were made, but there is no statement in the plaint about the date of making such payment. Thereafter, the draft agreement is stated to have been sent vide respondent's letter dated 16.10.2013, the said agreement is stated to have been signed on 06.11.2013 and returned to Delhi. The agreement dated 16.10.2013 is prepared at Delhi and in engrossed in the stamp paper purchased at Delhi. As per statements made in paragraph 8 of the plaint, the respondent had sent goods invoiced at Rs. 1,54,112/-, Rs. 26,129/- and Rs. 7,893/- on 09.11.2013, for which the petitioner had made payment, as such, a part of the transaction has taken place after the agreement was signed by the parties. Similarly, goods claimed to be valued at Rs. 4,86,956.56 was returned by the petitioner on 21.05.2014, by paying freight charges, which is again a transaction which is post agreement. Therefore, for the purpose of this revision, this Court is inclined to presume that notwithstanding different time-lines, the transactions between the parties were inconsonance with and in furtherance to the written agreement dated 16.10.2013, containing clause to subject all disputes within Delhi jurisdiction. 11. Therefore, for the purpose of this revision, this Court is inclined to presume that notwithstanding different time-lines, the transactions between the parties were inconsonance with and in furtherance to the written agreement dated 16.10.2013, containing clause to subject all disputes within Delhi jurisdiction. 11. In this regard, it is deemed proper to refer to the decision rendered by the Hon'ble Supreme Court of India in the case of ABC Laminart . In the said case, by agreement, the parties had subjected all disputes to Kaira jurisdiction. The learned trial court held that Courts at Salem had no jurisdiction, which was challenged in High Court and the High Court held that the Courts at Salem would have jurisdiction. The decision of the High Court was upheld by the Hon'ble Supreme Court. In paragraph 15 thereof, it has been held that "15. ... The performance of a contract is part of the cause of action and a suit can always be filed at the place where the contract should have been performed or its performance completed. If the contract should have been performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract for agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of contract, the place where repudiation is received is the place where suit would lie. ..." 12. The issue whether in absence of the words "only", "exclusive", or "exclusive jurisdiction" whether jurisdiction to sue could have been in Courts other than one on which parties had conferred jurisdiction, came to finally be settled by the Full Bench of the Hon'ble Supreme Court in the case of Swastik Gases . In this regard, the relevant paragraphs 32 and 57 are extracted below:- "32. In this regard, the relevant paragraphs 32 and 57 are extracted below:- "32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata It is a fact that whilst providing for jurisdiction clause in the agreement the words like "alone", "only", "exclusive" or "exclusive jurisdiction" have not been used but his, in our view, is not decisive and does not make any material difference. The intention of the parties- by having Clause 18 in the agreement is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provisions that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference any be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner. 57. For the reasons mentioned above, I agree with my learned Brother that in the jurisdiction clause of an agreement, the absence of words like "alone", "only", "exclusive" or "exclusive jurisdiction" is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the courts in Kolkata had jurisdiction to entertain the disputes between the parties." 13. The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the courts in Kolkata had jurisdiction to entertain the disputes between the parties." 13. Thus, it is seen that the decision of the larger Bench would be binding on this Court, as such, it must be held that notwithstanding the place where the agency agreement was to be performed, in terms of the ratio laid down in the case of Swastik Gases , the very existence of the jurisdiction clause in the agreement makes the intention of the parties herein, who are the parties to the agreement dated 16.10.2013, very clear to the effect that they both desire that the disputes relating to or arising out the said agreement dated 16.10.2013 must be sued before the Courts at Delhi. The said ratio laid down by the larger Bench of the Hon'ble Supreme Court in the case of Swastik Gases cannot be diluted by importing the ratio laid down in para-15 of the case of ABC Laminart . 14. Thus, by following the ratio laid down in the case of Swastik Gases , this Court has no hesitation to hold that in terms of the agreement dated 16.10.2013, the Courts at Delhi would have jurisdiction to entertain the disputes between the parties. 15. This revision stands dismissed, leaving the petitioner to pursue its remedy in Delhi and leaving the parties to bear their own cost.