M/s. Cheema Enterprises Vs. M/s. Mayur Enterprises
EmailAppeal: Civil Appeal No. 2245 of 1998
Petitioner: M/s. Cheema Enterprises
Respondent: M/s. Mayur Enterprises
Apeal: Civil Appeal No. 2245 of 1998
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Mar 29, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 20 – Jurisdiction – Sale/supply of brick manufacturing unit – Bill drawn – Clause 11 of the bill carrying condition, “all disputes are subject to Kashipur jurisdiction” – On finding the unit defective, suit for recovery of amount filed at Nagaon, Assam – If the court at Nagaon had no jurisdiction. Held that in view of decision in A.B.C. Laminart (P) Ltd. v. A.P. Agencies the court of Civil Judge, Senior Division, Nagaon, Assam had the jurisdiction to try the suit. (Paras 3,4)
Cases Reffered:
1. A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem (JT 1989 (2) SC 38) (Para 3)
JUDGEMENT:
ORDER
1. The plaintiff-respondent herein placed an order for purchasing a brick manufacturing machine with the defendant-appellant. The total price including all charges for installation was fixed for Rs. 4,39,920 – and out of the said amount of Rs. 1,00,000/- was sent as advance by bank demand draft dated 3.8.92 to the appellant. The appellant thereafter supplied the machinery to the plaintiff-respondent vide their bill dated 14.10.92 of Rs. 4,39,920/- and the balance amount was paid by
the bank draft dated 8.10.92 of Rs. 3,39,920/-. Clause 11 of the bill stated “all disputes are subject to Kashipur jurisdiction”. After the machine was installed, it was found that it was defective. Under such circumstances, the plaintiff-respondent brought a suit before the Civil Judge, Senior Division, Nagaon, Assam for recovery of the amount from the defendant-appellant. The appellant filed a written statement in the said suit. One of the pleas that was taken by the appellant in the written statement was that the Nagaon Court has no jurisdiction to try and decide the suit filed by the respondent. On this plea of the defendant-appellant a preliminary issue was framed to the effect as to whether the Civil Judge, Senior Division, Nagaon is competent to try and decide the suit. The said preliminary issue was decided in favour of the plaintiff and against the defendant. A revision was filed by the appellant before the High Court, but the said revi-sion also met with the same fate. It is against the said judgment of the High Court, the appellant has filed this appeal.
2. Learned Counsel appearing for the appellant, urged that in view of Clause 11 of the bill, the Nagaon Court has no jurisdic-tion to try and proceed with the suit filed by the plaintiff-respondent. This argument has no substance. Clause 11 of the bill runs as thus:
“All disputes are subject to Kashipur jurisdiction.”
3. Exactly the same Clause came up for interpretation in the case of A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem (JT 1989 (2) SC 38), it was held as thus :
“In the Clause “any dispute arising out of this sale shall be subject to Kaira jurisdiction” in Clause 11 ex facie there are no exclusionary words. The order of confirmation is of no assis-tance. The other general terms and conditions are also not indi-cative of exclusion of other jurisdictions. Under the facts and circumstances of the case it must be held 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.”
4. The aforesaid decision squarely covers the present case. We are, therefore, in agreement with the view taken by the High Court that Nagaon Civil Court has jurisdiction to entertain and decide the suit filed by the plaintiff.
5. For the aforesaid reasons, we do not find any merit in the appeal. It is, accordingly, dismissed. There shall be no order as to costs.
1. The plaintiff-respondent herein placed an order for purchasing a brick manufacturing machine with the defendant-appellant. The total price including all charges for installation was fixed for Rs. 4,39,920 – and out of the said amount of Rs. 1,00,000/- was sent as advance by bank demand draft dated 3.8.92 to the appellant. The appellant thereafter supplied the machinery to the plaintiff-respondent vide their bill dated 14.10.92 of Rs. 4,39,920/- and the balance amount was paid by
the bank draft dated 8.10.92 of Rs. 3,39,920/-. Clause 11 of the bill stated “all disputes are subject to Kashipur jurisdiction”. After the machine was installed, it was found that it was defective. Under such circumstances, the plaintiff-respondent brought a suit before the Civil Judge, Senior Division, Nagaon, Assam for recovery of the amount from the defendant-appellant. The appellant filed a written statement in the said suit. One of the pleas that was taken by the appellant in the written statement was that the Nagaon Court has no jurisdiction to try and decide the suit filed by the respondent. On this plea of the defendant-appellant a preliminary issue was framed to the effect as to whether the Civil Judge, Senior Division, Nagaon is competent to try and decide the suit. The said preliminary issue was decided in favour of the plaintiff and against the defendant. A revision was filed by the appellant before the High Court, but the said revi-sion also met with the same fate. It is against the said judgment of the High Court, the appellant has filed this appeal.
2. Learned Counsel appearing for the appellant, urged that in view of Clause 11 of the bill, the Nagaon Court has no jurisdic-tion to try and proceed with the suit filed by the plaintiff-respondent. This argument has no substance. Clause 11 of the bill runs as thus:
“All disputes are subject to Kashipur jurisdiction.”
3. Exactly the same Clause came up for interpretation in the case of A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem (JT 1989 (2) SC 38), it was held as thus :
“In the Clause “any dispute arising out of this sale shall be subject to Kaira jurisdiction” in Clause 11 ex facie there are no exclusionary words. The order of confirmation is of no assis-tance. The other general terms and conditions are also not indi-cative of exclusion of other jurisdictions. Under the facts and circumstances of the case it must be held 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.”
4. The aforesaid decision squarely covers the present case. We are, therefore, in agreement with the view taken by the High Court that Nagaon Civil Court has jurisdiction to entertain and decide the suit filed by the plaintiff.
5. For the aforesaid reasons, we do not find any merit in the appeal. It is, accordingly, dismissed. There shall be no order as to costs.
