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Judgment
M. Chockalingam, J.—Seeking revocation of the leave granted by this Court on 17-6-2005 in application No. 2380 of 2005 in C.S. No.
544 of 2005, this application has been brought forth by the applicant/defendant.
It is a suit filed by the plaintiff/respondent for recovery of a sum of Rs. 15,26,236/- along with declaration in respect of a shipment and for
consequential permanent injunction. The plaint proceeds on the footing that the causes of action for the suit arise within the jurisdiction of this Court
where the Memorandum of Understanding was entered into between the plain-tiff and the defendant on 29-9-2003; that the plaintiff and the
defendant acted in terms of the memorandum of understanding; that 81 tones of iron ores were procured by the plaintiff from the 2nd defendant;
that the plaintiff has entered into contract with Fremery for export of iron ore fines in pursuance of the agreement; that a letter of credit was opened
by Fremery with Standard Bank, London; that iron ores were sold and delivered at FOB Chennai Port to Fremery Resources Limited; that
shipment was loaded from the Port of Madras; and that all the documents as contemplated under the letter of credit were submitted and negotiated
at the instance of the 1st defendant through the 1st defendants bankers and all others.
The Court at the time of initiation of the proceedings granted leave on the said causes of action as alleged in the plaint.
On appearance, the defendant has brought forth this instant application, seeking revocation of the leave granted by this Court. What are all
contended by the learned Counsel for the applicant/defendant seeking revocation of the leave is that in the instant case, the causes of action though
showing to have arisen in the city of Madras on the basis of which the suit has been brought forth, there is an agreement between the parties, as
could be seen from the Memorandum of Understanding, wherein they have specifically spelt that any disputes between the parties should be settled
by invoking the jurisdiction of the Civil Court at Hyderabad where the contract in respect of the parties were concluded and where the
Memorandum of Understanding was also entered into between the parties. Hence, once they have agreed so, there is no question of filing the case
before the Court of Madras. In the instant case, there is ouster of jurisdiction and hence, leave already granted has got to be revoked. In support
of his contention learned Counsel for the defendant relied on the decision of the Apex Court reported in AIR 2002 2402 (SC) .
Contrary to the above contention, learned Senior Counsel for the plaintiff/respondent would submit that major part of the cause of action arises
within the jurisdiction of this Court as set out in the plaint. Learned Senior Counsel would further submit that it is true that there was a
Memorandum of Understanding entered into between the parties as stated by the defendant''s side; but, a reading of the said Clause would reveal
that there is no ouster of jurisdiction. So long as there is no ouster of Jurisdiction by using the words ''exclusively'', ''alone'', and ''only'', this Court
has got jurisdiction and thus, it has been rightly done by this Court by granting leave and hence, there is no reason of legal ground to revoke the
leave originally granted by this Court. In support of his contention, learned Senior Counsel relied on the decisions reported in Abdulla Bin Ali and
Others Vs. Galappa and Others, ; A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies, Salem, ; Neyveli Lignite Corporation, Neyveli Vs.
M/s. Vinay Engineering, Sole Proprietors, New Delhi and another, ; Premium Industries India Ltd., Calcutta Vs. Quality Fabricators and 2 others,
.
After careful consideration of the rival submissions made, this Court is of the considered opinion that the leave already granted by this Court has
got to be necessarily revoked. It is not in dispute that part of cause of action as set out in the plaint has taken place in the city of Madras. It is
needless to say that ordinarily even if a fractional cause of action arose within the jurisdiction of the Court, it would be suffice to grant leave and
take the suit to be entertained by the Court, In the instant case, the impediment is felt by introduction of a Clause in the memorandum of
understanding entered into between the parties. It is apt and appropriate to reproduce Clause 8 of the Memorandum of Understanding which
reads as follows:
All disputes or differences whatsoever arising between the parties out of or relating to the construction, meaning and operation or effect of this
contract or the breach thereof shall be preferably be solved in amicable manner between the parties otherwise the matter shall be settled in the Civil
Courts of Hyderabad Jurisdiction where the contract in respect of these presents were concluded and where this agreement was signed/accepted
by APSTC.
A reading of the said Clause would reveal that when a dispute arises between the parties, it shall be settled in the Civil Court of Hyderabad
jurisdiction. At this juncture, both the sides made an attempt to interpret the said Clause in one way or the other. For interpreting the said Clause,
both the learned Counsel, in support of their contentions, relied on the decisions referred to above respectively. It is true that the words ''only'',
''exclusively'' and ''alone'' are not employed there. At this Juncture, it has become necessary to point out the decision of the Apex Court reported in
AIR 2002 2402 (SC) . In that case also there was a clause as to the question of jurisdiction as found in paragraph 7 of the decision which reads as
follows:
Subject to the provisions of Clause 32 above, it is expressly agreed by and between the parties herein above that any suit, application and/or any
other legal proceedings with regard to any matter, claims, differences and for disputes arising out of this agreement shall be filed and referred to the
Courts in Calcutta for the purpose of Jurisdiction.
Paragraph 8 of the said decision reads as follows:
Clause 34 leaves no room for doubt that the parties expressly agreed between themselves that any suit, application or any other legal proceedings
with regard to any matter, claim, differences and dispute arising out of this claim shall only be filed in the Courts in Calcutta.
From the above Clause 34, it is very well evident that it does not contain the word ""only"" but their Lordships of the Supreme Court have
interpreted that ''shall be filed'' would mean ''only to be filed''.
Learned Counsel for the plaintiff took this Court to the decision of the Apex Court reported in A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P.
Agencies, Salem, and relied on paragraph 22 of the said decision which reads as follows:
Coming to Clause 11 we already found that this clause was included in the general terms and conditions of sale and the order of confirmation No.
68/59, dated 2-10-1974 with the general terms and conditions was sent from Udyognagar, Mohamadabad, Gujarat to the respondent''s address
at 12 Suramangalam Road, Salem, Tamil Nadu. The statement made in the SLP that Udyognagar, Mohamadabad, Gujarat is within the jurisdiction
of the Civil Court of Kaira has not been controverted. We have already seen that making of the contract was a part of the cause of action and a
suit on the contract therefore, could be filed at the place where it was made. Thus, Kaira Court would even otherwise have had jurisdiction. The
bobbins of metallic yarn were delivered at the address of the respondent at Salem which, therefore, would provide the connecting factor for Court
at Salem to have jurisdiction. If out of the two jurisdictions one was excluded by Clause 11, it would not absolutely oust the jurisdiction of the
Court and therefore, would not be void against public policy and would not violate Sections 23 and 28 of the Contract Act. The question then is
whether it can be construed to have excluded the jurisdiction of the Court at Salem. In the cause ''any dispute arising out of this sale shall be
subject to Kaira jurisdiction'' ex facie we do not find exclusive words like ''exclusive'', alone, ''only'' and the like. Can the maxim ''expressio unius
est exclusio alterious'' be applied under the facts and circumstances of the case ? The order of confirmation is of no assistance. The other general
terms and conditions are also not indicative of exclusion of other jurisdiction. Under the facts and circumstances of the case, we hold that while
connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other Jurisdictions having connecting factors
were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem
which Court otherwise had jurisdiction under law through connecting factor of delivery of goods thereat was expressly excluded. We accordingly
find no error or infirmity in the impugned judgment of the High Court.
Learned Counsel would submit that the words ''alone'', ''exclusive'' and ''only'' and the like have not been employed and so long as, it is not
employed, no question of ouster jurisdiction would arise. Likewise, in the instant case, nowhere the word ''only'' is employed and it would be
suffice to conclude that there is no ouster of Jurisdiction.
The Court is unable to agree with the contention put forth by the learned Counsel for the plaintiff for the reason that their Lordships in the
earlier paragraph viz., Paragraph 21 of the decision reported in A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies, Salem, have held as
follows:
From the foregoing decision it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of
jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the
absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words
like ''alone'', ''only'', exclusively and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim
''expressio unius est exclusio alterious - expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on
the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an
intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.
From this, it would be very clear that their Lordships have clearly expressed as regards construction of the ouster clause, when words like,
''alone'' ''only, ''exclusively'' and the like have been used there may be no difficulty. Even without such words, the maxim ''expressio unius est
exclusio alterious'' - expression of one is the exclusion to another, may be applied in appropriate cases. What is an appropriate case shall depend
on the facts of the case. In such case, mention of one thing may imply exclusion of another. When certain jurisdiction is specified in the contract, an
intention to exclude all others from its operation may in such cases be inferred.
In the instant case, it remains to be stated that they have specifically agreed in the Memorandum of Understanding that all these matters must
be settled before the Civil Court of Hyderabad. Thus, by the mentioning of certain jurisdiction specifically in the contract entered between the
parties, an Intention to exclude all others have got to be taken. It leaves no room for any doubt to this decision. What is now relied on by the
plaintiff as could be seen above, is that the words like ''alone'', ""only'' and ""exclusively'' and the like have not been used, but in view of the above
decision the said contention cannot be countenanced.
Under such circumstances, the Court is of the opinion that the contention put forth by the learned Counsel for the defendant has got to be
agreed. Therefore, the leave granted by this Court has got to be revoked. Accordingly, the same is revoked. Application No. 4830 of 2005 is
allowed. The interim injunction granted by this Court is vacated, and O.A. No. 641 of 2005 is dismissed.