UTTAM BHARAT ELECTRICALS vs JAIPUR GOLDEN TRANSPORT CO. LTD.

M/s. Uttam Bharat Electricals (complainant) has filed this complaint under Sec. 12 read with Sec. 17(a)(1) of the Consumer Protection Act, 1986 ("the Act" herein) against (1) M/s. Jaipur Golden Transport Co. Ltd., having its registered office at Roshanara Road, Delhi-7 (opposite party No. 1) and (2) Chomu Golden Transport Co., having its registered office at Near Subji Mandi, Bus stand, Chomu (opposite party No. 2). Briefly put the case of the complainant is that it sent its purchase order dated 13.10.89 to M/s. Luhem Markiv (India) Unit No. 7, Dharamchand Industrial Estate, Deonar, Bombay. The purchase order contained the description of the material. M/s. Luhem Markiv (India) vide their letter dated 25.10.89 informed the complainant that they despatched the material against the purchase order. M/s. Luhem Markiv (India) enclosed with the letter L.R. and invoice. The copy of the letter dated 25.10.89 has been submitted as Anx. 2 and copy of L.R. dated 25.10.89 and the bill dated 25.10.89 have been submitted as Anxs. 3 and 4 respectively. The goods were received by the complainant on 29/10/1989 at door delivery. The goods packing were damaged and material came out. The case of the complainant is that this was "due to mishandling by the transporters or during transhipment from one truck to another truck due to mishandling by unskilled labour". The complainant has alleged that opposite party No. 1 handed over the goods of the complainant to opposite party No. 2 for giving delivery to the complainant at door delivery. It is said that the complainant immediately after the "receipt of delivery" on 29/10/1989 wrote a letter to opposite party No. 1 and sent its copies to Bombay office and Jaipur office of opposite party No. 1 as also to opposite party No. 2. Copy was also sent by the complainant to the company from whom the goods were purchased. They were informed that the material under subject L.R. was delivered to it on 29.10.89 in damaged condition due to mishandling. The complainant asked opposite party No. 1 to send its surveyor to settle the claim. It was alleged that opposite party No. 2 is agent of opposite party No. 1 through whom the delivery, was given to the complainant wrote a letter dated 2.11.89 and admitted the damage of the goods. Opposite party No. 2 directed the complainant to take the payment of damaged goods from Jaipur office i.e. from opposite party No. 1. The copy of that Letter has been produced marked as Anx. 8. The complainant is said to have written to opposite party No. 1 for consideration of the claim on the basis of the report Anx. 9 which mentions that the total loss of damaged lamination is Rs. 99,208.68. Opposite party No. 1 is said to have informed the complainant that they are making enquiries. There was correspondence between the parties in regard to the settlement of the claim and that the complainant requested the transporter to arrange to lift the salvage of the damaged goods. In para 15 of the complaint it has been alleged amongst others as follows: "Further the material of another case also got damaged due to mishandling of the same in transhipment. The claim of petitioner has been admitted by the agent of respondent No. 1 and the respondent No. 2 who is agent of respondent No. 1 directed the petitioner to take payment of damage from Jaipur office."

It was prayed in the complaint that a sum of Rs. 2,18,803.68 with interest @ 18% p.a. until realization be awarded to the complainant. The liability was sought lo be fastened for the loss caused upon the opposite parties due to their negligence. Photo slat copies of the documents were submitted which consist of the correspondence between the parties, bills and photos etc.

REPLY was submitted on behalf of opposite party No. 1 traversing the allegations made in the complaint. One of the preliminary objection is that principal place of business of opposite party No. 1 is Delhi and it carries of business at Delhi and so the complaint could be filed at Delhi. It was* mentioned that while booking the goods in question it was agreed that the suit/claim regarding the goods in question would be filed at Delhi only and this was mentioned on the Goods Receipt/L.R. Anx. 3. which has been produced by the complainant. On the basis of the condition mentioned in Anx. 3. it was pleaded that as this condition was admitted by both the parties, the State Commission of Rajasthan has no jurisdiction to entertain, hear and decide the complaint and it deserves to be rejected on this ground alone. It was thought proper to consider the preliminary objection Regarding jurisdiction first. We heard the learned Counsel for the opposite parties in regard to the preliminary objection as nobody appeared on behalf of the complainant. The goods receipt is Anx. 3. Its photo stat copy has been produced. In the front, it is written as follows: "The Court in Delhi City alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for Transport."

This document has been produced by the complainant. The opposite parties have admitted the document. On the reverse of the goods receipt/ L.R. there are terms and conditions of carriage owner''s risk with which we are not concerned. The only question with which we are concerned at this stage is whether the State Commission of Rajasthan has territorial jurisdiction to hear this complaint. Sec. 11 of the Act deals with the jurisdiction of the District Forum. By virtue of Sec. 18 of the Act the procedure specified in Secs. 12,13 and 14 and under the Rules made there under for the disposal of the complaint are, with such modifications applicable to the disposal of the complaints by the State Commission. In regard to territorial jurisdiction provisions have been made in Subsection (2) of Sec. 11 of the Act which is as under: "(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction- (a) the opposite party or each of the opposite parties, where there are more than one, at, the time of the institution of the complaint, actually and voluntarily resides or carries on business, or personally works for gain, or (b) any of the opposite parties where there are more than one, at the lime of the institution of the complaint, actually and voluntarily resides or carries on business or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parlies who do not reside, or carry on business, or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arise."

THESE provisions are in pari materia with Sec. 20 of the Civil Procedure Code. It is true that the cause of action in part has arisen within the jurisdiction of the State Commission. Nonetheless the complaint under Sec. 11(2) could be filed in case of the opposite party or each of the opposite parties where there are more than one, at the time of the institution of the complaint actually and voluntarily resides or carries on business or personally works for gain. Clause (b) of Sub-section 2 of Sec. 11 provides that any of the opposite parties where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such a case the permission is accorded or the opposite parties who do not resides or carry on business or personally work for gain, acquiesce in such institution. Opposite party No. 1 has its registered office at Delhi and under Sec. 11 (2) it will be considered to carry on their business there. There was a stipulation between the parties that in case of any claim it will be lodged/filed in the Courts at Delhi. In this case it is Redressal Forum or State Commission located at Delhi. Learned Counsel for opposite Party No. 1 invited our attention to 1967 RLW 129. Jagatnarainan, J. observed as under: "It will thus be seen that wherever on the face of the ticket words to the effect: "For conditions see the back" are printed the person concerned is as a matter of law held to be bound by the conditions subject to which the ticket is issued whether he takes care to read the conditions if they are printed on the back or to ascertain them if it is stated on the back of the ticket where they are to be found. Where on the other hand the words printed on the face of the ticket do not indicate that the ticket is issued subject to certain conditions as in Parker v. The South Eastern Railway Company (1), but there are merely words to the effect "See back" then it is a question of fact whether or not the carrier did that which was reasonably sufficient to give notice of the conditions to the person concerned. If however conditions are printed on the back of the ticket, but there are no words at all on the face of it to draw the attention of the person concerned to them then it has been held that he is not bound by the conditions. In this connection the decision in Henderson v. Stevenson (7) may be referred to. 11. In the present case on the face of the ticket there was a declaration to the effect that the consignor was fully aware of and accepted the conditions of carriage given on the back side of the consignment receipt. Any prudent consignor would read the ticket to see that his goods and the transport charges payable were correctly entered in it and in doing so he would read the above declaration or if he did not know English he would have the ticket read by someone else knowing English who would come to know that it was subject to the conditions printed on the back. As was held in Stewart v. London and North Western Ry. Co. (4) that a man must be taken to know that which he has the means of knowing, whether he has availed himself of those means or not. If he does not he must bear the consequences of his carelessness. The consignor in the present case will be deemed to know of the conditions subject to which the ticket was issued and is bound by them. The consignee is equally bound by these conditions."

While considering Sec. 21 CPC the learned Judge held that when there is an agreement restricting jurisdiction to Courts at one place only, then the other Courts have no jurisdiction to try the suit. This matter was again examined by Gupta J. in 1983 RLW . In that case goods were entrusted at Ahmedabad to Transport Co. Transport Co. issued receipt to the consignor on terms and conditions printed thereon. One of the conditions was regarding restricting jurisdiction to Courts in Delhi City only. The consignee filed the suit for value of goods in Jaipur. It was held while following 1967 RLW 129 that Courts at Delhi only have jurisdiction. The learned Judge observed in para 5 of the report as follows: "5. It is settled law now that when a contract for carriage of goods is entered into and the transport company accepts the carriage of consignment on the terms and conditions printed on the back of the goods receipt and it also printed on the face of the goods receipt that the terms and conditions printed overleaf shall be binding on the parties and the consignment was accepted and booked on those terms and conditions, then the consignor is bound by such conditions whether he cares to read them or not and whether he signs the goods receipt or not. The issue of goods receipt is regarded as an offer by the transport company and if the consignor took the same after delivery of the goods to be carried to the transport company and retained such goods receipt for the carriage of the consignment without any objection, then this act on the part of consignor amounts to acceptance of the offer made by the transport company regarding the carriage on the goods."

THERE is an authority of the Apex Court of the country Sees. 19 and 20 C.P.C. came up for consideration before the Supreme Court in 1983 (4) SSC 707. It was ruled that parties can be agreement opt for jurisdiction of Courts at one particular place of suing excluding other places which are otherwise open to them for suing. The relevant observations are in para 3 of the report which reads as under: "3. It is now settled Law that it is not competent to the parties by agreement to invest a Court with jurisdiction which it does not otherwise possess but if there are more than one forums where a suit can be filed, it is open to the parties to select a particular forum and exclude the other forums in regard to claims which one party may have against the other under a contract Clause 17 of the Contract of Carriage could therefore, validly confer exclusive jurisdiction on the Court in Jaipur City only if it could be shown that the Court in Jaipur City would have jurisdiction to entertain the suit filed by the respondents against the appellant. It is true and there we agree with the respondents that no part of the cause of action in the present case arose in the City of Jaipur, and therefore the jurisdiction of the Court in Jaipur City could not be invoked on the ground that the cause of action or a part thereof has arisen in Jaipur. But the jurisdiction of a Court whether under Sec. 19 or Sec. 20 of the CPC can also be invoked on the ground that the defendant resides or carries on business or personally works for gain within the jurisdiction of the Court and here it could not be disputed that the appellant does not carry on business in the City of Jaipur and if that be so, there can be no doubt that the Court in Jaipur City would have jurisdiction to entertain the suit filed by the respondents against the appellant. In that event, Clause 17 of the Contract of Carriage conferring exclusive jurisdiction on the Court in Jaipur City and excluding the jurisdiction of other Courts would be valid and effective."

Reference may also be made to AIR 1989 SC 1239 wherein Sec. 2(a), Sec. 23 and Sec. 28 of the Contract Act and Sec. 20(c) of the Civil Procedure Code were considered. It was held that where there are two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agreed to vest jurisdiction in on such Court to try the dispute which might arise as between themselves, the agreement would be valid. It is thus clear that though by virtue of Sec. 11(2) of the Act the complaint could be filed either in Rajasthan or at Delhi but on account of the condition referred to above mentioned in G.R./L.R. the parties opted for jurisdiction of the Redressal Forum/State Commission at Delhi excluding Others which were otherwise upon to them for suing. As stated above the registered office of the complainant as per the complaint is at Roshanara Road, Delhi-7. The goods receipt provided that the Courts of Delhi City alone shall have jurisdiction in respect of all claims and matters arising under the consignment or in respect of the goods entrusted for transport. Parties by agreement excluded the jurisdiction of the other Redressal Forums/ State Commission where otherwise the complaint could be filed.

THE result is that the Stale Commission of Rajasthan lacks territorial jurisdiction for entertaining the complaint and there is no alternative but to return it to the complainant for representation before a competent Redressal Forum/Court/ Authority. THE complaint alongwith documents shall be returned to the complainant after making endorsement in regard to presentation of the complaint, date of order for return of the complaint and the actual date and the date when the complaint and the documents are returned. THEre will be no order as to costs. Complaint returned.