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Case Number

Civil Revn. Applns. Nos. 821 and 822 of 1978

Attorney(S)

R.N. Shah
M.V. Chokshy
for Opponent No. 1

Judges

Hon'ble Mr. Justice Girish Thakorlal Nanavati

Acts

provisions contained in Section 20(a) of the Code of Civil Procedure.
SECTION 38 PRESIDENCY SMALL CAUSE COURTS ACT 1882
Section 20 of the Indian Arbitration Act,
SECTION 28 CONTRACT ACT
ARBITRATION ACT 1940

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Smart Summary

Structured Summary of the Opinion — Rajasthan Golden Transport Company Pvt. Ltd. (Revision Applications)

Factual and Procedural Background

Based exclusively on the facts and procedural history contained in the provided opinion.

Two Regular Civil Suits (Nos. 1265 and 1266 of 1973) were filed by the plaintiffs/opponents in the Small Cause Court at Ahmedabad against the petitioner, Rajasthan Golden Transport Company Pvt. Ltd. The suits related to two bales of cotton piece goods delivered to the petitioner for carriage by motor lorry to Saharanpur on or about 14-3-1970. The consignments were accompanied by separate consignment notes (prepared in triplicate), consigned to "self", and one copy of each was given to the consignor.

The consignor alleged non-delivery of the goods at destination and, after waiting a reasonable time, issued notices to the petitioner claiming Rs. 1,029 and Rs. 1,257 respectively on 7-5-1970. The petitioner did not comply. The consignor had insured the consignments with an insurance company (opponent No. 1); the insurer paid the consignor and received letters of subrogation. Both the insurer (as plaintiff No. 1) and the consignor (as plaintiff No. 2) then sued the petitioner.

The trial Court (Small Cause Court, Ahmedabad) decreed both suits. New Trial Applications Nos. 50 and 51 of 1976 were filed by the petitioner before the Appellate Bench of the Small Cause Court under Section 38 of the Presidency Small Cause Courts Act, 1882; those applications were rejected. The petitioner then filed the present civil revision applications challenging the judgments and decrees.

Legal Issues Presented

Whether the Small Cause Court at Ahmedabad had jurisdiction to try the suits, or whether jurisdiction rested exclusively with a Court at Delhi in view of a forum-selection clause on the consignment notes and Section 20 of the Code of Civil Procedure.
Whether the suits were barred by limitation (i.e., whether plaintiffs' claims were time-barred).
Whether the insurance company (opponent No. 1), after payment and receipt of deeds of subrogation, had the competence/right to file the suits against the petitioner.

Arguments of the Parties

Petitioner (Rajasthan Golden Transport Company Pvt. Ltd.) — Principal Arguments

The petitioner contended that, by a specific agreement printed on the consignment notes and by virtue of Section 20 of the Code of Civil Procedure, only the Courts at Delhi (where the petitioner's head office was located) had jurisdiction to try the suits.
It argued that where more than one court has jurisdiction under the Code, parties may agree that only one out of those courts shall try their dispute; therefore other courts would be ousted by such agreement.
The petitioner relied on the consignment notes (Exhibits 28 and 34) showing printed terms which included a clause: "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." It argued that the consignor was bound by these printed terms and conditions.
The petitioner relied on authority (notably Hakarn Singh v. Gammon (AIR 1971 SC 740) and a Bombay High Court decision, Ghatge & Patil (Transport) Ltd. v. Madhusudan Ramkumar (AIR 1977 Bom 299)) to support the view that such forum-selection clauses are valid and can make only the chosen court competent.
It also raised the defense of limitation and questioned the competence of the insurer to sue (though the insurer's right was primarily addressed as a factual/legal point arising from subrogation).

Opponents / Plaintiffs (Consignor and Insurance Company) — Principal Arguments and Responses

The consignor (opponent No. 2) explained that the signatures appearing on the reverse and elsewhere of the consignment notes were not placed as acceptance of the printed terms and conditions: the signature on the top of the terms was said to have been put the day after preparation to facilitate delivery, and the signature at the bottom related to an endorsement in favour of a bank, not to acceptance of conditions.
The consignor pointed out that the front side of the consignment note had a designated space for the signature of the sender or agent to indicate acceptance of the printed terms, but that space was blank in both consignment notes—supporting the view that the consignor had not specifically agreed to the back-side terms.
The consignor (and insurer as plaintiff) relied upon local precedent (Rai & Sons P. Ltd. v. M/s. Trikamji Kanji (1975) 16 Guj LR 31) and other authorities to contend that a contractual forum-selection clause between two competent courts does not oust jurisdiction of other competent courts and that the excluded court retains discretion whether to exercise jurisdiction, considering factors such as convenience and hardship.
Regarding the insurer's right to sue, the plaintiffs asserted (and trial Court found) that deeds of subrogation transferred rights to the insurer, enabling it to sue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hakarn Singh v. Gammon (India) Ltd., AIR 1971 SC 740	Holds that a contractual stipulation choosing one of two or more competent courts is valid and not void under Section 28 of the Contract Act; parties cannot confer jurisdiction on a Court that it does not possess, but may choose among competent courts.	The court observed that Hakarn Singh confirms such forum-selection clauses are not void but also does not support the petitioner's contention that such clauses absolutely oust jurisdiction of other competent courts. The precedent therefore did not advance the petitioner's case.
Nanak Chand v. T. T. Elec. Supply Co., AIR 1975 Mad 103	Accepted the validity of selecting one competent forum by agreement between parties (i.e., not contrary to Section 28 of the Contract Act).	Cited by the petitioner; the court noted this decision did not help the petitioner because it does not establish that a forum-selection clause absolutely ousts jurisdiction of other competent courts.
Salem Chemical Industries v. Bird & Co., AIR 1979 Mad 16	Similarly treats forum-selection clauses as valid between competent courts.	Also cited by petitioner but court treated it as not supporting an absolute ouster of jurisdiction; it therefore did not assist the petitioner.
Ghatge & Patil (Transport) Ltd. v. Madhusudan Ramkumar, AIR 1977 Bom 299	Held (in a factually similar situation) that parties' contract selecting a particular forum meant the excluded court had no jurisdiction to entertain the suit (i.e., supported exclusive forum clause).	The court acknowledged this Bombay High Court decision supports the petitioner's contention that only the chosen court (here argued to be Delhi) would have jurisdiction. However, the court considered other authorities and facts before declining to follow this result in the present case.
Rai & Sons P. Ltd. v. M/s. Trikamji Kanji, (1975) 16 Guj LR 31	Holds that a contractual stipulation selecting one of two competent forums does not amount to an ouster of jurisdiction; the excluded court retains a discretion and the stipulation is a factor to be weighed (not an absolute bar).	The court expressly followed and agreed with this view. It applied the principle to hold that the Small Cause Court at Ahmedabad retained jurisdiction despite the forum-selection clause and that the clause could be given due weight but not treated as an absolute bar.
M/s. Snehal Kumar Sarabhai v. K. T. Organisation, AIR 1975 Guj 72	Holds that a stipulation selecting a forum may be ignored by an excluded court if it is oppressive given surrounding circumstances and stakes involved.	The court relied on this decision to justify ignoring the forum-selection clause due to factors such as delivery and witnesses being in Ahmedabad and the modest stakes, which would make forcing the plaintiffs to Delhi oppressive and unjust.

Court's Reasoning and Analysis

The opinion sets out a sequential legal analysis limited to the information in the text. The Court proceeded as follows:

Scope and consolidation: The two suits and the two New Trial Applications were consolidated and treated together because they raised common points; the revision applications likewise were disposed of by a common judgment.
Jurisdictional analysis:
- The petitioner relied on a forum-selection clause printed on the consignment notes and Section 20 of the Code of Civil Procedure to assert exclusive jurisdiction of the Courts at Delhi.
- The Court examined the consignment notes and the signatures relied upon by the petitioner. It noted that the reverse-side terms (including the Delhi jurisdiction clause) bore signatures by a partner of the consignor, but there was evidence and explanation that those signatures were not placed as acceptance of the printed terms: one signature was put the day after preparation to facilitate delivery and the other was associated with a bank endorsement.
- The Court also observed that the front side of the consignment note contained a dedicated space for the signature of the sender or agent indicating acceptance of the printed terms; that space was blank in both consignment notes, which the Court took as significant evidence that the consignor had not agreed specifically to the back-side terms.
- The Court considered applicable precedent. It reviewed Hakarn Singh (Supreme Court) and certain Madras High Court decisions recognizing the validity of forum-selection clauses between competent courts but observed those authorities do not show such clauses absolutely oust other competent courts. The Court acknowledged a Bombay High Court decision (Ghatge & Patil) that supported the petitioner's exclusive-jurisdiction argument.
- However, the Court followed the Gujarat precedent (Rai & Sons P. Ltd. v. M/s. Trikamji Kanji) and the reasoning in Snehal Kumar Sarabhai v. K. T. Organisation: a contractual stipulation selecting one of two competent forums does not amount to an absolute ouster of the jurisdiction of another competent court. Such stipulations are to be given weight, but the excluded court retains discretion to consider the stipulation among other factors (convenience, hardship, locality of witnesses, stakes involved) before deciding whether to exercise jurisdiction.
- Applying those principles to the facts, the Court emphasized: goods were delivered to the petitioner at Ahmedabad; witnesses regarding contract formation and terms resided in Ahmedabad; and the stakes were comparatively small. Forcing the plaintiffs to file in Delhi would cause inconvenience and hardship. Accordingly, the Court held that the Small Cause Court at Ahmedabad had correctly exercised jurisdiction.
Competence of insurer to sue:
- The petitioner argued the insurer had no right to sue. The Court noted this point was not raised before the Appellate Bench. Substantively, the Court found no merit in the contention: because the consignor's notice was not complied with by the petitioner and the insurer made payment, the consignor executed deeds of subrogation in favour of the insurer (identified as Exhibits 32 and 39), thereby vesting the insurer with the rights of the consignor to take action against the petitioner.
Limitation:
- The petitioner contended the suits were time-barred but was unable to point to how suits were barred. Both the trial Court and the Appellate Bench held the suits were filed within time. The Court affirmed that the petitioner failed to establish that the suits were barred by limitation.
Result of the analysis:
- All of the petitioner's contentions were rejected based on the foregoing factual findings and legal reasoning. The Court found the judgments and decrees of the trial Court (and the Appellate Bench's dismissal of New Trial Applications) to be correct on jurisdiction, on the insurer's competence via subrogation, and on limitation.

Holding and Implications

Holding: Both revision applications are dismissed. The court discharged the rule in each revision application with costs and ordered that the petitions be dismissed.

Implications (direct effects on the parties):

The decrees and judgments entered by the trial Court in favour of the plaintiffs/opponents are upheld.
The Appellate Bench's rejection of the petitioner's New Trial Applications is sustained.
The insurance company was held to have the right to sue by virtue of the deeds of subrogation executed by the consignor.
The Court exercised its discretion to entertain the suits notwithstanding the printed forum-selection clause because, on the facts, requiring the plaintiffs to sue in Delhi would have caused undue hardship and inconvenience given the location of evidence and the modest stakes.
No broader or novel precedent was announced beyond the Court's explicit reliance and agreement with prior Gujarat authority that a contractual selection of one of two competent forums does not automatically oust the jurisdiction of other competent courts; the clause is a significant factor but not an absolute bar.

This summary strictly reflects only the information and reasoning contained in the provided opinion and does not introduce material or inferences beyond the text of that opinion.

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The Rajasthan Golden Transport Co. P. Ltd., Delhi v. The United India Fire And General Insurance Co. Ltd., Ahmedabad And Another

1. The petitioner in both these revision applications is the Rajasthan Golden Transport Company Private Limited. Two suits being Regular Civil Suits Nos. 1265 and 1266 of 1973 were filed by the opponents against the petitioner in the Small Cause Court at Ahmedabad. Both these suits were decreed by the learned trial Judge. The petitioner had thereupon filed New Trial Applications Nos. 50 and 51 of 1976 before the Appellate Bench of Small Cause Court at Ahmedabad. They were rejected. Hence these revision applications.

2. Both the aforesaid suits were consolidated by the learned trial Judge and they were disposed of by a - common judgment. Similarly, both the New Trial Applications before the appellate Bench of Small, Cause Court were heard together and were disposed of by a common judgment. As the points which arise in these civil revision applications are common, I also propose to dispose of both of them by a common judgment.

3. Briefly stated the facts are like this. Opponent No. 2 Piramal Jwalaprasad & Brothers is a dealer in cloth at Ahmedabad. On or about 14-3-1970, it wanted to send two bales of cotton piece goods to Sahranpur. It, therefore, approached the petitioner on 14-3-1970 and delivered the said two bales to it for the purpose of carrying the same by a motor lorry to Sahranpur. The petitioner accepted the same and prepared two separate consignment notes, one in respect of each bale. The said goods were consigned to self and, therefore, in both the consignment notes, name of consignee was shown as "self". Both the consignment notes were prepared in triplicate and one copy of each was given to the consignor. According to the consignor, the said bales were not delivered consignor or the consignee at the place of - destination, nor were they returned to the consignor. It, therefore, after waiting for a reasonable time, lodged a claim with the petitioner for Rs. 1,029/- by a notice dated 7-5-1970 in respect of the goods consigned under consignment note No. 40751 and for Rs. 1,257/_ by a notice dated 7-5-1070 in respect of the goods consigned under consignment note No. 40750. The petitioner did not comply with the said notices. As both the consignments were sent at owner's risk, the consignor has got them insured with opponent No. 1 insurance company. The consignor, therefore, called upon the insurance company to make payment for the loss of the said goods. The insurance company made the payment; and thereupon the consignor issued letters of subrogation in favour of the insurance company. Thereafter, both the insurance company as plaintiff No. 1 and the consignor as plaintiff No. 2 filed the aforesaid two suits against the petitioner.

4. The petitioner contested both the suits. It, inter alia, contended that in view of the specific agreement between it and the consignor, only the Court at Delhi will have jurisdiction to try the suits; and, therefore, the Small Cause Court at Ahmedabad had no jurisdiction to try them. It was also contended that the claim of the plaintiffs was barred by limitation. A contention was also raised in the written statement that the insurance company had no right to file these suits.

5. In support of their claim, the opponents, plaintiffs led oral evidence before the trial Court. But the petitioner-defendant did not lead any oral evidence in either of the two suits. The trial Court held that the Court at Delhi will have no jurisdiction to try the suits, as no part of cause of action had arisen within the jurisdiction of the said Court. Therefore, even if the parties had agreed that the Court at Delhi will have jurisdiction to try and hear these suits, it will have no such jurisdiction as the parties even by agreeing cannot confer on a Court jurisdiction which it does not possess. It further held that it had jurisdiction to try these suits as the cause of action had arisen within the jurisdiction. The trial Court relying upon the two deeds of subrogation Exhibits 32 and 39 came to the conclusion that the insurance company had a right to file these suits. On the point of limitation ' it held that the defendant had failed to establish how these suits were not within time. In view of the aforesaid findings, the trial Court decreed both the suits.

6. The petitioner being aggrieved by the aforesaid judgments and decrees of the 'trial Court, filed New Trial Applications Nos. 50 and 51 of 1976 before the Appellate Bench of Small Cause Court at Ahmedabad, under Section 38 of the Presidency Small Cause Courts Act, 1882. Only three points were urged be fore that Court. The first points was relating to jurisdiction; the second was regarding limitation and the third was with regard to the quantum of the amount for which decree was passed in each of the two suits. No point regarding competence or right of Opponent No. 1 insurance company to file the suits was raised before the Appellate Bench. The Appellate Bench agreed with the finding of the trial Court that no part of cause of action can be said to have arisen within the jurisdiction of Delhi, Court; and, therefore, merely because the head office of the petitioner is situated at Delhi, Delhi Court will have no jurisdiction to try these suits. It further held that in any case, jurisdiction of the Courts at Ahmedabad cannot be taken away by such an agreement. The Appellate Bench also confirmed the findings of the trial Court on the points of limitation and the amount of compensation payable to the opponents. It, therefore, rejected both the New Trial Applications.

7. Mr. R. N. Shah, the learned advocate for the petitioner ' has contended that the findings recorded by both the Courts below on the point of jurisdiction are bad in law. Mr. Shah has submitted that both the Courts below were in error in holding that the Courts at Delhi had no jurisdiction to try these suits as no part of cause of action had arisen within the jurisdiction of the said Courts. According to him, the head office of the petitioner having been situated at New Delhi, the Court at Delhi will have jurisdiction to try these suits in view of the provisions contained in Section 20(a) of the Code of Civil Procedure. He has further contended that if more than one Court have jurisdiction to try any case, then it is open to the parties to agree that only one out of those Courts shall try their case; and in such a case, the other Courts will have no jurisdiction to try the same. He fairly conceded that but for the agreement between the parties i.e. the petitioner and the consignor in this case, the Small Cause Court at Ahmedabad would have jurisdiction to try, these suits. However, in view of the specific agreement between the consignor and the transport company that "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 only the Court at Delhi will have jurisdiction to try these suits, to the exclusion of all other Courts having jurisdiction over the matter. For this purpose, he has relied upon the two consignment notes at Exhs. 28 and 34. These consignment notes were issued by the petitioner to the consignor at the time when it accepted the goods from the consignor for the purpose of carrying them -to Sahranpur. Both the consignment notes are in printed forms; and only the details as to the names of the consignor and the consignee, place of destination, description of the consignment etc. are filled in by the transport company. On the front side of the said consignment notes following clauses are printed at the bottom:

"(1) Goods booked at owner's risk. The company will not be liable for uninsured and illegal goods.

(2) The company shall not be responsible for any wrong declaration whatsoever.

(3) I/we consignor/consignors here by declare that booking terms and conditions printed overleaf shall be binding on me/us.

(4) Duplicate bilty shall only be valid when countersigned by the Manager. Signature of Sender Signature of the or Agent Goods Clerk "

Then on the backside of the said consignment note, terms and conditions on which the consignment is agreed to be carried are printed. The relevant term and condition for our purpose is as under:

"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."

On the top of these terms and conditions, one JwalaPrasad & Tulsiyan. Has put his signature as the partner of Piramal Jwalaprasad & Brothers. He has also put his signature at the bottom of the said terms and conditions again in the same capacity. He has signed at both the aforesaid places in English. Relying upon the agreement evidenced by condition Na 3 on the front side of the consignment note and the two signatures placed by the partner of consignor on the back side of the said note, Mr. Shah has contended that the consignor had agreed to all the terms and conditions which are printed on the back side of the said consignment notes; and it is not open to it to contend that it had not agreed to any term or condition whereby it required to file the suits against the petitioner company only in the competent Court at Delhi. With respect to the signatures on the back side of the said consignment notes, Mr. M. V. Chokshy, the learned advocate for opponent No. 1-consignor has explained that the signature on top of the terms and conditions was put on the next day of preparation of the consignment notes and it was so done for the purpose of facilitating delivery of the goods at the place of destination and not in token of having agreed to the term and conditions printed below it. As regards the signature at the bottom, Mr. Chokshy explained that the said signature appears below an endorsement made in favour of Bank of Baroda. The said signature is, therefore, obviously put for the purpose of the endorsement made in favour of the Bank and not in token of the consignor having agreed to the terms and conditions printed above the said signature. In my opinion, Mr. Chokshy is right when he says that none of the two signatures is put by the partner of the consignor in token of the firm having agreed to the terms and conditions printed on the reverse of the said consignment notes. Not only this explanation is supported by the evidence on record, but this position was not disputed in the Courts below. It is also significant to note that on the front side of the consignment notes, at the bottom, there is a space kept blank for signature of sender or his agent to indicate acceptance of terms and conditions printed overleaf. But no signature of the consignor or his agent appears at that place in either of the two consignment notes it cannot, therefore, be said that the consignor had specifically agreed to the terms and conditions printed on the back side of the said consignment notes. Mr. Shah has also argued that the consignors are expected to have read those term and conditions; and they would be bound by the said term and conditions irrespective of the fact whether they have signed below the consignment notes or not, because their attention would be drawn as a result of what has been stated at the bottom of the front side of the consignment notes. Mr. Shah has further contended that since the consignor must be assumed to have agreed to the terms and conditions printed overleaf, the said consignment notes, only the Court at Delhi will have jurisdiction to entertain these suits, and necessarily, jurisdiction of other Courts will be barred in support of this submission, Mr. Shah has relied upon a decision of the Supreme Court in Hakarn Singh v. Gammon (India) Ltd., AIR 1971 SC 740. In that case Hakam Singh had agreed, A to do certain construction work for M/s. Gammon (India) Ltd. on certain terms and conditions which were reduced into writing, in the form of the written tender. Clauses 12 and 13 of the tender were:

"12. In the event of any dispute arising out of this sub-contract, the parties hereto agree that the matter shall be referred to arbitration by two Arbitrators under the Arbitration Act of 1940 and such amendments thereto as may be enacted thereafter.

13. Notwithstanding the places where the work under this contract is to be executed, it is mutually understood and agreed by and between the parties hereto that this contract shall be deemed to have been entered into by the parties concerned in the City of Bombay and the Court of law in the city of Bombay alone shall have jurisdiction to adjudicate thereon."

Thereafter some dispute arose between the parties; and ultimately Hakam Singh filed a petition in the Court ' of Sub ordinate Judge at Varanasi for an order under Section 20 of the Indian Arbitration Act, that the agreement be filed and an order of reference be made to an Arbitrator or Arbitrators appointed by the Court to settle the dispute between the parties in respect of the construction works done by him. A contention was raised on behalf of M/s. Gammon (India) Ltd. that the Civil Courts in Bombay alone had jurisdiction to entertain the petition. That contention was negatived by the learned trial Judge. The matter was then carried in revision to the High Court of Allahabad which set aside the order passed by the learned Subordinate Judge and declared that only the Courts at Bombay had jurisdiction to entertain the petition. Agaifist that order of the Allahabad High Court, Hakam Singh had preferred an appeal to the Supreme Court. The Supreme Court after referring to clause 13 of the written tender observed as under:

"By clause 13 of the agreement it was expressly, stipulated between the parties that the contract shall be deemed to hav6 been entered into by the parties concerned in the City of Bombay. In any event the respondents have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the Courts at Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court, which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act."

This decision, however, does not support the contention of Mr. Shah that such an agreement between the parties operates as an absolute bar to the jurisdiction of other Courts. It only lays down that such an agreement cannot be said to be void, being in restraint of legal proceedings and thus contravening Section 28 of the Contract Act. Such an agreement is valid and will ordinarily be binding on the parties thereto. But that is very different from saying that it would bar the jurisdiction of other Courts. Mr. Shah has also relied upon two decisions of the Madras High Court in Nanak Chand v. T. T. Elec. Supply Co., AIR 1975 Mad 103 and 'Salem Chemical Industries V. Bird & Co. AIR 1979 Mad 16. In those decisions also, what has been laid down is that if the parties contract to vest jurisdiction in one of the Courts only out of many having jurisdiction to try a dispute, such a contract would not be hit by Section 28 of the Contract Act. There fore, these decisions also do not help the petitioner.

8. Reliance was then placed upon a decision of the Bombay High Court in Ghatge & Patil (Transport) Ltd. v. Madhusudan Ramkumar, AIR 1977 Bom 299. In that case the facts were similar to the facts of the instant case. That decision clearly supports the contention of Mr. Shah that the Court at Delhi alone will have jurisdiction to try the suit arising out of a dispute between the consignor and the petitioner, in view of the specific agreement to that effect. In that case, a contention was in terms raised that even if by the terms of a contract, the parties had agreed to choose a particular forum, it does not mean that other Courts otherwise competent to entertain a suit cannot entertain and try it or in other words the jurisdiction of such Courts is thereby ousted. This contention was negatived by the Bombay High Court as is evident from the following observations made by it.

"...........There would, therefore, be an inevitable implication that the consignor knew full well when he signed this For warding Note that this contract was subject to the jurisdiction of the Court at Kolhapur and knowing this full well tie entered into this contract. In our view, therefore, having regard to the terms of the contract, the parties by their Agreement had agreed that any dispute arising out of this contract would be decided by the Court of Kolhapur.

In this view of the matter, it is obvious that the Small Cause Court at Poona had no jurisdiction to entertain the suit: and, therefore, it ought to have returned the plaint to the plaintiff for presentation to the proper Court".

Thus, this decision of the Bombay High Court supports the contention of Mr. Shah that in view of the contract between the parties only the Court in Delhi will have jurisdiction to try these suits and the Small Cause Court at Ahmedabad had no jurisdiction to entertain the same.

9. As against that, Mr. V. M. Chokshy, the learned advocate for the consignor has relied upon a decision of this Court in Rai & Sons P. Ltd. v. M/s. Trikamji Kanji, (1975) 16 Guj LR 31. The contention which has been raised by Mr. Shah before me was in terms raised be, fore J. B. Mehta, J. in that case. The attention of the Court was also invited in that case to the decision of the Supreme Court in Hakarn Singh's case (AIR 1971 SC 740) (supra). This - Court following the decision of the Supreme Court held that such an agreement between the parties of selecting one of the two competent Courts under the Civil Procedure Code is not contrary to public policy and does not violate Section 28 of the Contract Act w it does not oust the jurisdiction of the Civil Court. After, considering various decisions which were cited before him. Mehta. J. has observed:

".................the settled legal position is entirely to the effect that such a con tract, by which the parties selected one of the two competent forums, does not amount to ouster of the jurisdiction of the ordinary Court. Therefore, such a contractual stipulation, in favour of which the Court would have prima facie a great leaning for upholding the solemnity of the contract so as to bind the parties to their own bargains, could never operate as an absolute bar to the jurisdiction of the competent Court. Therefore,, the competent court would always have a discretion to resolve this question by taking into consideration this stipulation as only one of the factors, which would be given great weight as the parties had selected a particular forum, but ultimately the question would have to be decided not by treating the stipulation as if there was an absolute bar to the existence of the jurisdiction but as one of the factors to be considered for exercise of the jurisdiction on sound judicial principles."

I am in respectful agreement with the view expressed by Mehta, J. in the aforesaid decision and hold that the jurisdiction of the Small Cause Court at Ahmedabad to entertain these suits is not affected in any manner by the con tract between 'the petitioner and opponent No, 2 firm. As has been pointed out by M. P. Thakkar, J. In M/s. Snehal kumar Sarabhai v. K T. Organisation, AIR 1975 Guj 72, such a. stipulation in a contract can be ignored by the excluded Court if it is considered to be oppressive having regard to the surrounding circumstances and the stakes involved. In the instant cases the goods were delivered to the petitioner at Ahmedabad; all the witnesses who can depose about the formation of the contract and the terms and conditions thereof are residents of Ahmedabad; and the stakes involved in both the suits are comparatively small. If in these circumstances, the opponents plaintiffs are directed to file the suits in the Court at Delhi, it would work great inconvenience and hardship upon them. Considering all these circumstances, it would not be just and expedient to direct the opponents-plaintiffs to file the suits in the Court at Delhi.. I am, there fore, of the opinion that in view of thefacts and circumstance of the case, the Small Cause Court at Ahmedabad had correctly exercised its Jurisdiction in entertaining these suits.

10. The next contention raised by Mr. Shah is regarding the right of the opponent No. 1 insurance company to file the suits. As has been pointed out earlier, no such point was taken before the Appellate Bench of Small Cause Court. Even apart from that, there is no substance in the point raised 'by Mr. Shah. As the petitioner had not complied with the notice of claim made by opponent No. 2 firm,. the insurance Company was required to make payment I to it. Opponent No. 2 firm had then passed two deeds of subrogation in favour of the insurance company. Thus, the insurance company got all the rights of opponent No. 2 firm to take action- against the petitioner.

11. The last contention raised by, Mr. Shah was regarding limitation. However, Mr. Shah was unable to point out how these suits filed by the opponents were barred by time. As has been pointed out earlier, both the Courts have held that the suits were filed within time. Therefore, this contention of Mr. Shah also fails.

12. Thus, all the contentions raised by Mr. Shah are rejected; and both the revision applications are dismissed. Rule in each of the revision applications is discharged with costs

13. Petitions dismissed

The Rajasthan Golden... v. The United India Fir...