Annamalai Finance Ltd. vs K. Jayaprakash Narayanan

Jagadeesan, J.—The defendant in O.S.369 of 1991 on the file of Sub-Court, Dindigul is the petitioner herein. The respondent herein filed

the said suit against the petitioner for recovery of a sum of Rs. 16,850-75 together with interest. The respondent''s case is that he is running a

Xerox and Job Type Centro. The petitioner is a finance company and the respondent had approached the petitioner company for financial

assistance for purchase of Nelco Plate Paper Copier for his job work. Both had arrived at an arrangement and the respondent had executed a hire

purchase agreement on 5.2.88. Apart from that he also executed a pro note and deposited the title deed of his immovable property with the

petitioner. The schedule of repayment is that the respondent has to repay the loan amount in. In monthly instalments, the first instalment being as

Rs. 2,110/- and the remaining instalments as Rs. 1,941/-. The respondent paid a sum of Rs. 33,657/- by way of draft, cheques and cash on

various dates from 22.3.88 to 5.1.90. Since the machine was under repair, the respondent procured another machine Modi Xerox on 6.3. 90.

When the respondent was away, the petitioner representatives came to the respondent''s premise, and seized the Modi Xerox, inspite of the

respect dent''s objection. On 8.3.90, the respondent contacted the petitioner by phone and offered to remit Rs. 10,000/- and requested him to

release the machine seized by the petitioner. As the petitioner agreed for the same, the respondent went to the petitioner''s office at Coimbatore

and remitted a sum of Rs. 10,000/- and requested the petitioner to release the machine. The petitioner refused to re lease the same and informed

the respondent that unless he settled the entire account the machine cannot be given back to him. The responded again went to the petitioner''s

office on 19.3.90 with money and requested the petitioner to give the account in respect of the balance amount due by him. But the petitioner

refused to give the accounts and directed the respondent to remit Rs. 32,500/- in full settlement of the claim Though the amount claimed by the

petitioner much higher, having no other option, the respondent has remitted the amount of Rs. 32,500/- As per the respondent, he has over paid

the petitioner and according to the particulars given in the claim petition, the respondent is entitled to recover a sum of Rs. 16,850-75. The

petitioner disputed the claim of the respondent by filing the written statement and also has raised the question of jurisdiction contending that as per

the hire purchase agreement, the parties have agreed that only the Court at Coimbatore has jurisdiction and as such the suit filed at Dindigul is not

maintainable.

The lower court has rejected the plea of the petitioner with regard to the exclusion of jurisdiction of Dindigul Court. The present revision has

been filed by the petitioner, challenging the said order.

The respondent had stated in his plaint the cause of action arises on the date of the hire purchase agreement i.e., on 5.2.88 at Coimbatore. He

has further stated that the cause of action arises on 5.3.90 on which date the Modi Xerox machine had been seized from his premises instead of

the Nelco Plain Paper Copier, which is the subject matter of the lease agreement.

The learned counsel for the petitioner contended that as per the clause 33-0 of the lease agreement, the parties had agreed that the Coimbatore

court alone shall have exclusive jurisdiction in respect of any matter, claim or dispute arising out of or in any way relating to this agreement. Clause

33-0 of the lease agreement runs as follows :-

As a part of the cause of action arises in Coimbatore it is agreed between the parties that Coimbatore Court alone shall have exclusive jurisdiction

in respect of any matter, claim, dispute arising out of or in any way relating to this agreement.

So far as this contention is concerned, it is valid in view of the judgement reported in A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies,

Salem, in which it has been held as follows :-

From the foregoing decisions 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'', ''exclusive'', and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim

''express unius est exclusio alterius ""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.

In the judgement reported M/s. Angile Insulations Vs. M/s. Davy Ashmore India Ltd. and another, it has been held as follows:-

So, normally that Court also would have jurisdiction where the cause of action, wholly or in part, arises. But if will be subject to the terms of the

contract between the parties. In this case, Clause (21) reads thus:

This work order is issued subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will,

therefore, fall within the jurisdiction of the above Court only.

A reading of this clause would clearly indicate that the work order issued by the appellant will be subject to the jurisdiction of the High Court

situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, be instituted in a Court of competent jurisdiction of High

Court of Bangalore only. The controversy has been considered by this Court in A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies, Salem,

Considering the entire case law on the topic, this Court held that the citizen has the right to have his legal position determined by the ordinary

Tribunal except, of course, subject to contract (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 die jurisdiction to which dispute in respect of the contract shall be subject. This is clear from S.28 of the Contract Act.

But an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy under S.23 of the

Contract Act We do not find any such invalidity of clause (21) of the Contract pleaded in this case. On the other hand, this Court laid down that

where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen

therewith; if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves, the

agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Ss. 23 and 28 of the Contract Act.

This cannot be understood as parties contracting against the statute. Mercantile law and practice permit such agreements.

The counsel for the respondent contended that if the relief sought for in the suit relates to the hire purchase agreement alone then the restriction

will have force. But in this case, the plaintiff had claimed excess of payment and also damages for the seizure of the Modi Xerox machine, which is

not concerned with the lease agreement. I do not think the counsel for the respondent is correct in making such contentions. Merely because yet

another transaction had been included in the suit, it cannot be said that the terms of the hire purchase agreement can be given a go by; especially

when the hire purchase transaction is also the main subject-matter of the suit.

It may be pertinent to note the averments in the plaint to find out as to which is the subject matter of the suit, which reads as follows:-

The defendant has collected an excess amount of Rs. 16,800-75 from the plaintiff as detailed hereunder towards this transaction. This defendant is

bound to refund the said amount to the plaintiff.

PARTICULARS

Amount to the defendant:

Cost of the machine Rs. 69,300-00

Insurance coverage 350-00

Stamp and agreement charges 300-00

Interest for 25 months at 15% pa; 14.156-00

Rs. 84.106-25

Amount paid by the plaintiff

Initial payment made Rs. 25,000-00

29.3.88 by draft 2,148-00

by cheque 1,.941-00

by cheque 1,941-00

by cheque 1,941-00

by cheque 1,941-00

by cheque 1,941-00

12.9.88 by draft 1,951-00

14.10.88 by draft 1,951-00

19.11.88 by draft 1,951-00

30.12.88 by draft 2,000

8.89 by draft 4,000

1.90 by draft 2,000

29.12.90 by cash at Palani 4,000

3.90 by cash at Coimbatore 32,500 29.1

(settled the account)

Cost of broken machine tray & Bye 1,500

Pass tray

Transport charge of machine (Modi 300

Xerox from Coimbatore to Palani)

1,00,957-00

Excess amount collected from the

plaintiff:

1,00,957-84,106-25 16,850-75

From the above averments, it is clear that the respondent had claimed only the transport charges of the Modi Xerox machine from Coimbatore to

Palani i.e., Rs. 300/-. The remaining excess of the amount claimed by him relates to the hire purchase agreement. Hence the suit is mainly for

recovery of the amount i.e., the excess payments made by the defendant. Hence the rights of the parties are governed by the agreement of sale.

In view of the above referred judgments of the Apex Court, I am of the opinion that only the Coimbatore Court has jurisdiction. Hence the order

of the lower court is set aside. The lower court is directed to return the plaint for presentation before the proper forum. The civil revision petition is

allowed. There will be no order as to costs.