Inder Dhir Singh vs Mohan Meakin Breweries Ltd.

C.R. Thakur, J.—This revision petition u/s 115 of the CPC is directed against the order, dated October 16, 1976, whereby the Senior Sub-Judge, solan, dismissed the application of the Defendant in which he had taken up the objection that the Court had no jurisdiction to try the suit, filed by M/s Mohan Meakin Breweries Ltd. against him for the recovery of Rs. 8,547.59 P. on account of the price of goods purchased and interest thereon.

The point of jurisdiction was raised on the ground that no cause of action either wholly or in part had arisen within the jurisdiction of the Court at Solan. The Plaintiff has got its depot at Patiala and it was from this depot at Patiala that the Defendant made the purchases, the delivery of the goods to the Defendant was made at Patiala and the Defendant also actually resides and carries on businees at Patiala. This application was opposed on the ground that the Defendant had not filed the written statement taking all the pleas which he wanted to take and that there is no provision in the CPC or under the law to file piece-meal written statement. However, this objection was waived by the Counsel for the Plaintiff and the Court struck the following issues:

Whether this Court has jurisdiction to try the suit? (Opp.)

Relief.

The Senior Sub-Judge after hearing the Counsel for the parties came to the contusion:

In this case I may refer to invoice and it contains the condition of the sale and in fact the invoice can be termed as contract for the supply of goods. In condition No. 1 of the invoice it is alleged that the price of the goods as mentioned in this invoice, shall he paid immediately on presentation. In condition No. 1 of the invoice it is alleged that all the sums due under ox on this invoice shall be payable or be deemed to be payable at Solan and in condition No. 3 it is alleged that all suits proceedings actions relating to or arising out of this contract shall be filed and entertained in the Courts of jurisdiction in Himachal Pradesh, i.e. at Solan where the head office of the company is situated. Mohan Meakin Company is having so many depots in India for making the supply of the goods and the payment is required to be made at Solan for the facilities of the Company. This clause has been introduced in the invoice. The books of accounts are also maintained in the Head Officer of the Company at Solan. Section 28 of the Contract Act, 1872 under exception 2 does not render any contract invalid. I am of the view that this Court has got jurisdiction to try the suit...

The learned Counsel for the Petitioner has submitted that die Plaintiff does not say that a part of the cause of action arose in Solan, so as to give jurisdiction to that Court. But, what the Plaintiff says is that the accounts are maintained in Solan. Further that the conditions as incorporated in the invoice amount to an agreement. According to him, the conditions have got no binding force because the consent of the parties does not confer jurisdiction on the Court. What the Court has to see to give jurisdiction to it is as to where does the Defendant reside, where the delivery was made and where the transaction was struck. There is admittedly no dispute with regard to the fact that the purchase was made at Patiala and the delivery was also made by the Plaintiff at Patiala. But, his case is based on the conditions as incorporated in the invoice. Further that the money due was payable at Solan, which is within the territorial jurisdiction of the Court of the Senior Sub-Judge, Solan.

Before I notice the authorities cited by the learned Counsel for the Petitioner to show that the agreement has got no binding force, it would be appropriate to give the conditions as incorporated in the invoice which is filed with the plaint:

Conditions of Sale

I. The price of the goods as mentioned in this invoice, shall be paid immediately on preseutation, failing interest at the rate of Rs. 12.00 percent per annum shall be payable to the date of payment. 2. All sums due under or on this invoice shall be payable or be deemed to be payable at Solan, the registered office of the. Company. 3. All suits, proceedings and actions relating to or arising out of this contract shall be filed and entertained in the Courts of jurisdiction in Himachal Pradesh. 4. The delivery of goods to the carrier shall be deemed to be delivery to the purchaser, and the carrier shall be deemed to be delivery to the purchaser, and the Company shall not be responsible and its risk will cease on such delivery. 5. The property in the goods shall not pass to the purchaser unless the full price thereof has been paid. 6. All goods are booked at the risk of Railway and/or the purchaser. 7. All payments to be made by drafts drawn in favour of the Company at Solan and no payment in cash shall be accounted for unless made against a receipt issued officially bearing the stamp of the Company, and executed by a duly authorised person of the Company. 8. The acceptance of the goods by the purchaser, his agent, employee or servant, shall and be deemed to be on the conditions and terms thereof, and the acceptance thereof. 9. The prices of the invoice are the governing rates on the date of supply, and shall be fixed by Company and be not called into question in any Court and Tribunal or by any other manner whatsoever. 10. All the orders by the purchaser for supply of the goods shall be deemed to have been made at Solan, and the supplies of this invoice shall be deemed to have been made from Solan as if being made in response to such orders received at Solan.

These conditions of sale incorporated at the foot of the invoice are a part of the invoice and these conditions are signed by one Amarjit Singh for the Plaintiff and by the Defendant, who is the purchaser in the case. The learned Counsel for the purchaser submits that this part of the conditions of sale does not amount to an agreement which may have a binding force, nor the consent of the parties, as already stated, will confer jurisdiction on the Court at Solan.

The first authority relied upon by the learned Counsel for the Petitioner is Patel Bros v. Vadilal Kashides Ltd. AIR 1959 Mad 227. In this case the Plaintiff-firm carrying on business at Madras entered into a contract at Bombay for the purchase of one bale of cotton cloth with the Defendants a limited liability company carrying on business at Bombay. According to the Plaintiffs delivery was to be made at Madras. The Defendants failed to make the delivery. The Plaintiffs, therefore, filed a suit at Madras for recovery of damages for breach of contract for non-delivery of goods contracted to be sold by the Defendants. The Defendants contested the claim and one of the obections was that the Madras Court had no jurisdiction over the subject matter of the suit. The Plaintiffs filed a transliteration copy, Exhibit P. 2 of the original contract. Exhibit P. 1 in evidence. Beyond this they did not file any other evidence. This document was, in fact, issued by the Defendants to the Plaintiffs at the time of the transaction. At the top of Exhibit P. 1 were the words "Subject to Bombay jurisdiction". On that basis the learned Sub-Judge held that there was a contract excluding the jurisdiction of Madras Court and investing the same only upon the Bombay Court. In that view he held that the suit was not maintainable at Madras and returned the same for presentation to the proper Court. In that case it was apparent from the evidence that the goods were to be despatched to Madras and specific mention was made to No. 7 Godown Street, Madras. However, there was no evidence as to how the price was to be realised by the Plaintiffs. Therefore the question that arose from the words "Subject to Bombay jurisdiction" written on the top of the agreement was whether under the agreement between the parties there was an exclusion of the jurisdiction of the Madras Court. It was held that these words did not exclude the jurisdiction of any other Court. Ouster of jurisdiction of a Court to which a person is entitled to resort to under the CPC or any other statute cannot be a matter of assumption or presumption but one to be proved by express words contained in the contract or at least by necessary or inevitable implication. But this test was not satisfied in the aforesaid case. Further it was held that the jurisdiction of the Madras Court cannot be taken away because in the letter head he had printed the words "Subject to Bombay jurisdiction". These words were not sufficient to constitute a contract out of the jurisdiction of the Madras Court.

The second authority on this point relied upon is C. Satyanarayana and Ors. v. Kanumarlapudi, Laxmi Narasimham AIR 1968 AP 380. In this case also the Defendant had written a letter on top of which "Subject to Madras Jurisdiction" was printed and on a suit filed by the Plaintiff for the recovery of an amount due from the Defendants in the Court of the subordinate Judge Janardanapuram on the ground that the Defendants borrowed money from the Plaintiff at Janardanapuram or Kandukur Taluk. Since the money had not been paid the Plaintiff, therefore, filed a suit. One of the Defendants in the suit contended that on the day when the money was alleged to have been borrowed he was not at Janardanapuram but he was at Madras and that no such transaction took place and in the alternative it was contended that the transaction took place in Madras and it is the Madras City Civil Court that has got the jurisdiction. The trial Court held that it has jurisdiction to try the suit because the transaction took place at Janardanapuram and not at Madras, as alleged. Further, the letter Exhibit A. 3 was written subsequently and "Subject to Madras Jurisdiction" was not one of the terms of the contract in regard to the transaction which took place at Janardanapuram. On revision, the High Court affirmed the order and held that "Subject to Madras jurisdiction" written at the top of a letter did not become part of the contract unless it was agreed to by the Plaintiffs. Therefore, in these circumstances both these authorities which are relied upon by the learned Counsel for the Defendant-Petitioner do not have any bearing on the facts of the present case, inasmuch as the conditions which have been set out in extenso clearly show that these conditions were a part of the contract because this invoice was issued at the time of making the purchase and the conditions are a part of the contract and this had been agreed to by the parties because both the parties have appended their signatures below the conditions, which conditions are below the invoice, i.e. indicating the price and they have appended their signatures only after they had read the terms becuase the title is "Conditions of Sale". There is a specific condition No. 2 in this agreement which says that all sums due under or on this invoice shall be payable or be deemed to be payable at Solan, the registered office of the Company. Further it has specifically been provided that all suits, proceedings and actions relating to or arising out of this contract shall be filed and entertained in the Courts of jurisdiction in Himachal Pradesh. One of the conditions is that all payments be made by drafts drawn in favour of the company at Solan and no payment in cash shall be accounted for unless made against a receipt issued officially bearing the stamp of the Company. Another term which is significant is that the acceptance of the goods by the purchaser, his agent, employee or servant, shall and be deemed (emphasis mine) to be on the conditions and terms hereof and acceptance thereof. Condition No. 10 says that all the orders by the purchaser for supply of the goods shall be deemed to have been made at Solan, and the supply of this invoice shall be deemed to have been made from Solan as if being made in response to such orders received at Solan. Therefore, in view of this deeming clause it would appear that the parties intended that the goods shall be deemed to have been purchased and delivered at Solan and that the payments also shall be made at Solan. Therefore, under the fiction the sums due under or on this invoice shall be payable or be deemed to be payable at Solan, the registered office of the Company and further that all orders for supply of the goods shall be deemed to have been made at Solan and the supplies of this invoice shall be deemed to have been made from Solan as if being made in reeponse to such orders received at Solan. It will demonstrate that the Court has the jurisdiction the entertain the suit because of this deeming clause, according to which, the orders for the supply were deemen to have been made from Solan and also received at Solan and also the the dues were also deemed to be payable at Solan. On the basis of this deeming clause it is to be held as if the actual transaction was struck at Solan and the delivery was also made at Solan and the payments were also made at Solan and the balance was also payable at Solan.

It is well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate and in this behalf I may quote a passage which has been quoted at Page 355 of the case Commissioner of Income Tax, Delhi Vs. S. Teja Singh, and the observations which has been quoted from Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 A.CC. 109 arc as:

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state affairs.

Therefore, in the face of these deeming clauses in the ''conditions of sale'' which is a part of the contract entered into between the parties it is manifest that it is the Solan Court which will have jurisdiction because of the fact that these articles were deemed to have been purchased or delivered at Solan and the payment was also deemed to have been made at Solan or the balance was made payable at Solan. It this deeming fiction which is to be taken as if it actually existed then necessarily it is the Court at Solan which will have the jurisdiction. There is no question that the consent of the parties cannot confer jurisdiction on the Courts. But, in the instant case, it is not correct to say so because the parties have never said that it is the Solan Court which will have the jurisdiction to try the suit, rather, according to the deeming clauses the transactions had been entered into between the parties within the jurisdiction of Solan and, therefore, the Court at Solan shall have the jurisdiction to try the suit. Hence these two authorities where the printed words appeared at the top of the letter heads did not form parts of the contracts which had the binding force. In the instance case these conditions of sale are part of the contract or the agreement and they are signed by the parties to the agreement. Threfore, there cannot be any escape from the conclusion that the trial Court was right in holding that it has got the jurisdiction in the matter.

The learned Counsel for the Petitioner has taken up one of the grounds that them was no evidence on the record, inasmuch as this invoice which incorporates the conditions of sale was not proved. That is true. It could not be proved because the Petitioner did hot put in any written statement. He merely contended himself by making an application which did not amount to a written statement and at that time the Plaintiff could not have an opportunity to prove the document, but the document is already there on the record filed by the Plaintiff along with the plaint. Therefore, on a cursory reading of this document it is evident that the Court has got the jurisdiction.

In the light of the aforesaid discussion, I do not find any substance in the arguments of the learned Counsel for the Petitioner. The petition, therefore, fails and is hereby dismissed with costs. Parties directed to appear before the trial Court on 5th July. The record of the trial Court be sent back immediately.