Abhimanyu Phalke vs Sri Ram Investment Ltd.

N.K. Patil, J.—The petitioner being aggrieved by the order dated 16.12.2005 in MA 22/03 on the file of the learned III Additional. Civil Judge (Sr. Dn.) Gulbarga, confirming the order dated 31.3.2003 on I.A. No. IV in O.S. 452/02 on the file of the learned Civil Judge (Jr. Dn.) presented the instant memorandum of Civil Revision Petition.

The grievance made out by the petitioner is that he has filed a suit for perpetual induction against the respondent/defendant before the Trial Court claiming that he is the absolute owner of lorry bearing registration No. KA-32-A-5141 and he availed the loan facility from the respondent/defendant for a sum of Rs. 3,00,000/-, which is re-payable in 36 installments as per the agreement. He is regularly making the repayment as per the installment, it is shock and surprising to the petitioner/plaintiff, when the respondent/defendant illegally seized the vehicle and subsequently came to know that the defendant is likely to dispose of the vehicle. Therefore, he was constrained to file the suit for perpetual injunction to restrain the respondent/defendant from interfering with the peaceful possession and enjoyment of the vehicle and for mandatory injunction to restore the possession of the vehicle in his favour. Be that as it may, the respondent/defendant herein has filed I.A.No. IV stating that as per one clause of the agreement between the petitioner/plaintiff and the defendant/respondent referring to the jurisdiction of the civil court and as per the said clause in case of any dispute the action has to be initiated only at Courts at Bangalore, exclusive jurisdiction in respective of any matters, claim and dispute arising out of it relates to agreement and prayer in the said application I.A.No. 4 that the suit filed by the petitioner/plaintiff is not maintainable and the plaint may be returned. The Trial Court after hearing both the sides on I.A.No. IV in O.S.452/02 allowed the application filed under Order VI Rule 10 and returned the plaint to the plaintiff/ petitioner herein with a direction to present before the competent court by order dated 31.3.2003. Assailing the correctness of the order dated 31.3.2006 on I.A.No. IV in O.S.No. 452/02 on the file of the I Additional Civil Judge (Jr. Dn.), Gulbarga, the petitioner/plaintiff herein has filed the Miscellaneous Appeal No. 22/03 on the file of the III Additional Civil Judge (Sr. Dn.), Gulbarga. The said Miscellaneous Appeal No. 22/03 has come before the Lower Appellate Court for consideration on 16.12.2005. The Lower Appellate Court after hearing both the sides has framed necessary issues for consideration and following the decision reported in AIR 2002 2402 (SC) has dismissed the appeal confirming the order passed by the Trial Court as referred above. Having regard to the facts and circumstances, (sic) case, the petitioner/plaintiff instituted the present revision petition.

I have heard the learned Counsel appearing for the petitioner and the respondents at considerable length of time. After careful evaluation of the impugned orders passed by both the courts below it is manifest on the face of the order that both the courts have not committed any error of law much less illegality. It is significant to note that it is an un-disputed fact of the case that the petitioner/plaintiff has borrowed the loan from the 2nd respondent by hypothecating the lorry bearing No. KA-32-A-5141 and as per the Hire Purchase Agreement, it is specifically stipulated that regarding the jurisdiction it is agreed by and between the parties that the Civil Court at Bangalore shall have exclusive right in respect of any matter, claim or dispute arising out of or in any way relates to agreement. Having perusal of the Hire Purchase cum Guarantee Agreement, it is clearly a case to show that the agreement taken between the petitioner/plaintiff and respondent/defendant also with regard to the jurisdiction in respect of the dispute between the parties, the only jurisdiction is the Civil Court at Bangalore. Both the courts below after appreciation of the relevant material available on the file and grounds urged by the plaintiff/petitioner and following the dicta of the judgment of the Supreme Court reported in AIR 2002 2402 (SC) has held that it is open for parties to choose any one of two competent Courts to decide their disputes - once parties bound themselves, as such it is not open for them to choose a different jurisdiction. The relevant portion of the judgment of the Apex Court is as below:

Thus the question is not whether the Orissa Courts have the jurisdiction to decide respondent''s suit but whether the respondent could have invoked the jurisdiction of that Court in view of the aforesaid Clause 34. A party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy. It is open for a party for his convenience to fix the jurisdiction of any competent Court to have their dispute adjudicated by that Court alone. In other words if one or more Court has the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent courts to decide their disputes. In case parties under their own agreement expressly agrees that their dispute shall be tried by only one of them then the party can only file the suit in that Court alone to which they have so agreed. In the present case as we have said through Clause 34 of the agreement, the parties have bound themselves that any matter arising between them under the said contract, it is the Courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open for them to choose a different jurisdiction as in the present case by filing the suit at Bhubaneshwar. Such a suit would be in violation of the said agreement.

After careful reading of the well settled law laid down by the Apex Court in the case of Shriram City Union Finance Corporation Ltd., v. Rama Mishra, once party bound themselves as such it is not open for them to choose different jurisdiction as in the instant case filing the case in Gulbarga, is the violation of the agreement. Both the courts below have rightly considered the case made out by the party and recorded concurrent findings of the fact and appreciation of relevant materials and specifically referring the Hire Purchase cum Guarantee Agreement there is a specific condition regarding the jurisdiction and given a specific finding in para 9 of the order of the Trial Court and the Lower Appellate Court after re-appreciation of the relevant material available on the file and after careful perusal of the terms and conditions of the agreement arising between the parties placing reliance on the judgment of the Apex Court and specifically more attention to the conduct of the petitioner/plaintiff opined that the Trial Court has justified in ordering the return of the plaint for presentation of a plaint to Competent Civil Court at Bangalore had not committed any illegality by the Trial Court, which calls for any interference in para 16 of the said order. In view of the well considered order passed by the courts below after assigning cogent reasons and recording the specific finding to the effect that the objections raised by the respondent/defendant is misdeed compliance of the terms and conditions of the Hire Purchase agreement cum Guarantee Agreement regarding jurisdiction. Interference by this Court exercised u/s 115 of the CPC is not justifiable nor the petitioners had made out any grounds to interfere in this revision petition. Having regard to the facts and circumstances of the case, the revision petition filed by the petitioners is dismissed as devoid of merits.