1. The Secretary, Vikalanga Sevaka Co-operative Society Ltd., Trivandrum (hereinafter referred to as the Society), the petitioner herein, seeks to quash Ext. P2 judgment of the Kerala Co-operative Tribunal, Trivandrum, the third respondent herein, in exercise of the extraordinary powers of this Court under Art. 226 of the Constitution by the issue of an appropriate writ. The only question that arises for determination in this original petition is whether on the admitted facts Ext. P4 can be construed as an agreement or contract entered into between the petitioner and respondents 1 and 2 by which the court at Delhi was given exclusive jurisdiction to decide the dispute between the parties. A few facts necessary for the disposal of this original petition can now be stated. The Society was registered under the Kerala Co-operative Societies Act. It was formed for the uplift and betterment of the conditions of physically disabled persons. The first respondent herein is a partnership firm carrying on business in printing machinery, paper cutting machinery, etc., having its office at Delhi. The second respondent is also a partnership firm engaged in agency business at Quilon. The petitioner placed an order with the first respondent for the supply of a paper cutting machinery with all usual accessories costing about Rs. 2800/- through the second respondent. A tender was submitted by the first respondent through the second respondent and the same was accepted by the Society at Trivandrum. The respondents undertook to supply the machinery at Trivandrum and demanded a sum of Rs. 3276/- being the cost of the machinery and transportation charges. The said amount was remitted by the petitioner society in the District Co-operative Bank, Trivandrum, to the credit of the first respondent. It was also represented by the respondents that the machinery will be sent covered by an Insurance policy through the Eastern Roadways, a firm engaged in transporting business. A bill Ext. A4 dated 25-7-1973 for the payment of Rs. 3276/- was sent from Delhi to the Society at Trivandrum. It was said that the machinery was sent in 4 cases bearing parcel consignment No. 60410 weighing 750 kgs. The transporting agency informed the society that out of the 4 cases, 3 cases have reached their office and the Society should take delivery of the same. As the 4th one was not traceable the Society did not take delivery of the three cases alone. Sometime after, the transporting agency informed the Society that the missing 4th consignment has been traced out and ultimately all the 4 consignments were taken delivery of by the society, when it was found that out of the three cases one was a consignment bundled in gunny bag which contained only a handle-bar or some other machinery. The Society protested about this to the first respondent and requested the first respondent to supply the society the entire machinery or refund the amount.

2. When the first respondent failed, either to deliver the entire machinery or remit back the amount received from the society, it initiated arbitration proceedings as contemplated under the Kerala Co-operative Societies Act. The Deputy Registrar of Co-operative Societies, Trivandrum took the case on his file as A.C No. 7 of 1975. The respondents appeared before the Arbitrator and the first respondent filed a written statement denying the claim of the society and also contending that the Arbitrator has no jurisdiction to try the case in the light of the inscription on the top of Ext. A4 bill. Both sides adduced evidence in support of their contentions raised before the Arbitrator who after hearing the parties duly considered the evidence and passed an award Ext. P1 in favour of the Society rejecting the contentions of the respondents that the Arbitrator has no jurisdiction in view of the inscription in Ext. A4.

3. An appeal was filed by the respondents challenging this award in Appeal No. 65/1979 before the Kerala Co-operative Tribunal, Trivandrum. The Tribunal by its judgment, Ext. P2, dated 23-2-1980, without going into the merits of the claims of the society, considered only the preliminary point relating to jurisdiction of the Arbitrator to entertain and decide the dispute, upheld the contentions of the appellants therein, respondents 1 and 2 herein, that by virtue of the statement on the top of Ext. A4 the parties had entered into an agreement that the disputes between them are subject to Delhi jurisdiction alone, allowed the appeal and set aside the decision of the Deputy Registrar and the plaint was ordered to be returned to the petitioner for pursuing its remedies before the proper forum.

4. The learned advocate appearing for the petitioner contended that Ext. P2 is vitiated by serious illegality; that the very approach made by the appellate court to the question of law involved in the case was wrong and the appellate court applied a wrong principle of law to the admitted facts of the case. The counsel also submitted that the Tribunal also erred in applying the conclusion arrived at in EID Parry (India) Ltd. v. Savani Transports (AIR. 1980 A.P 30).

5. As stated earlier, the question for consideration is whether on the admitted facts of the case, Ext. A4 can be construed as a contract or agreement reached between the society and respondents 1 and 2 by which the parties agreed to oust the jurisdiction of all the courts except the jurisdiction of the courts in Delhi. It is now well settled law that 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. (See Hakam Singh v. Gammoo (India) Ltd., (1971) 1 SCC 286 : AIR. 1971 SC. 740 and Jaike Engineers v. K.S.S.S.T Corporation, 1979 KLT. 206). The case of respondents 1 and 2 in this regard has been dealt with by the Tribunal in paragraph 10 of the judgment as follows:

“The defence case is that the contract of sale was subject to the condition that the disputes if any between the parties were to be settled in the Delhi courts only. The plaintiff's case is that there was no such contract ousting the jurisdiction of the Kerala courts. It is admitted by both sides that part of the cause of action for this suit has arisen at Delhi, the seller's place of business and at Trivandrum, where the buyer has its place of business and that the courts at Delhi and Trivandrum can entertain the suit”.

6. The point for consideration, therefore, is whether there has been an agreement between the parties that the dispute between them shall be tried only in the courts at Delhi. It was relying on the words “subject to Delhi jurisdiction” printed on the top of Ext. A4 bill that the Tribunal held that this constituted such an agreement between the parties ousting all the courts except the courts at Delhi. Now, the question is whether the above words printed on the top of Ext. A4 in law will constitute such an agreement between the parties. This bill is one sent by the first respondent to the society. No record has been produced in this case which will show or even indicate that the society has agreed to or accepted the above words printed on the top, as one of the terms of the contract reached between them regarding the purchase of the printing machines. It was relying on the decision reported in A.I.R 1980 A.P 30 that the Tribunal concluded that Ext. A4 by virtue of the words printed on the top constituted an agreement between the parties by which they agreed to “subject only to the jurisdiction of the courts at Delhi.” A reading of the decision of the Andhra Pradesh High Court referred to above will show that the facts of the case there are entirely different from the facts of the present case. There were two way bills in that case and on the top of these way bills (Exts. A4 and A5 there) the words “subject to Bombay jurisdiction” had been printed in red ink. Clause 17 printed on the reverse of the Way Bill, Ext. A4, read “the court in Bombay State alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport”. While clause 17 printed on the reverse of Ext. A5 read “the contract shall be deemed to have been entered into and made with the Administrative and Head Office of the Company at Bombay”. It was on the basis of the clauses printed on the way bills that the learned Judge of the Andhra High Court held that in view of clause 17 on the reverse of the Way Bills, it has to be held that the plaintiff has agreed that only Bombay court should have jurisdiction to decide the dispute, if any, that might arise between the parties.

7. The learned advocate appearing for the petitioner invited my attention to the decisions of various High Courts in support of his contentions. They are Patel Bros. v. Vadilal Kashidas Ltd. (AIR. 1959 Madras 227); C. Satya Narayana v. Kanumarlapudi Lakshmi Narasimham (AIR. 1968 A.P 330); G.P Venkataraju v. Palukuri (AIR. 1975 A.P 32); Snehalkumar Sarabhai v. Economic Transport Organisation (AIR. 1975 Gujarat 72) and Surajmall Shiwbhagawan v. Kalinga Iron Works (AIR. 1979 Orissa 126). The facts in G.P Venkataraju's case (AIR. 1975 A.P 32) and in the instant case are almost identical. In that case, the question that came up for consideration was whether the words “subject to Calcutta jurisdiction” printed on the top of Ext. A1 bill constituted an agreement between the parties to confer jurisdiction on the courts at Calcutta alone. The learned Judge who rendered the decision, referred to and discussed the decisions of the High Courts of Allahabad, Andhra Pradesh, Madras and Travancore-Cochin. It was held in this case that Ext. A1 containing the words at the top “subject to Calcutta jurisdiction” did not amount to a contract between the parties which conferred exclusive jurisdiction on Calcutta Courts i.e, to the exclusion of any other court that may have jurisdiction by reason of S. 21 of the Code of Civil Procedure. Although this decision was cited by the appellant in EID Parry (India) Ltd. v. Savani Transports (AIR. 1980 A.P 30) it was neither discussed nor considered therein. In Patel Bros. v. Vadilal Kashidas Ltd. (AIR. 1959 Mad. 227), a similar document came up for consideration, whether it constituted a contract or agreement. It was held in that case, relying on a decision in Hemachandra Sahu v. Sirdarmall & Co. (CRP. No. 1010/53) that the jurisdiction of the Madras court cannot be taken away because in the letter-head of the defendant he had printed the words “subject to Berhampur jurisdiction” and that the mere printing of the words “subject to Bombay jurisdiction” in Ext. P1 (in that case) cannot amount to a contract that both the parties agreed to have Bombay as the venue for the settlement of disputes. This decision of the Madras High Court has been relied on in G.P Venkataraju's case (AIR. 1975 A.P 32). It was held in C. Satyanarayana's case (AIR. 1968 A.P 330) that merely because the defendants have written a letter on the top of which “subject to Madras jurisdiction” was printed, it cannot become a part of the contract unless it was expressly agreed to by the plaintiff. In Surajmall Shiwbhagawan's case (AIR. 1979 Orissa 126), it was held that by mere recital of the words “all subject to Calcutta jurisdiction” on the top of the purchase order and sending the same to the plaintiff, it could not be said that the plaintiff agreed to confine settlement and adjudication of all disputes between the parties relating to the contract only at one place, i.e, in the courts at Calcutta and nowhere else. Ouster of court's jurisdiction should not be easily construed and could not be assumed or presumed very easily. Ouster of jurisdiction must be proved by express words or by necessary or inevitable implications. The decision of the Madras High Court in AIR. 1959 Madras 227 has been relied on in this case.

8. What now remains for consideration is what is the proper and correct construction of the words “subject to Delhi jurisdiction” printed on the top of Ext. A4. On a due consideration of Ext. A4 in the light of the principles stated by the various decisions referred to above, I have no hesitation to hold that this will not constitute a contract or agreement between the parties by which they agreed to oust the jurisdiction of all the courts except the courts at Delhi. The judgment of the Tribunal is therefore seriously vitiated. The counsel for the respondents read out the deposition of Pw. 1 before the Arbitrator and argued that he has admitted that the words printed on the top of Ext. A4 is a part of the contract or agreement between the two parties. I do not find any such admission made by Pw. 1 that the printed words on the top of Ext. A4 was one of the terms of the agreement or contract entered into between the parties. Apart from all these, it would be oppressive to the society which is one formed for the uplift and betterment of the conditions of physically disabled persons, to drive all to Delhi to recover a small amount. In Snehalkumar Sarabhai's case (AIR. 1972 Gujarat 72) it was held that while parties can lawfully enter into an agreement restricting a dispute to a particular court having jurisdiction and ordinarily the courts would respect the agreement but the stipulation can be ignored by the excluded court which otherwise possesses jurisdiction if it is considered to be oppressive having regard to the surrounding circumstances and the stakes involved and hence where the goods were delivered to the public carrier for transportation at Ahmedabad and the stipulation printed at the back of the transport receipt issued by the carrier obliged the consignor to sue in Calcutta court only, it was held that the Ahmedabad court which admittedly had jurisdiction was competent to entertain the suit by the consignor if it would be oppressive to drive the consignor all the way to Calcutta to recover a small sum and incur greater expenditure than the sum involved. For the foregoing reasons, this original petition is allowed. Ex. P2 judgment is set aside and the Kerala Co-operative Tribunal, Trivandrum is directed to restore Appeal No. 65/79 to its file and dispose of the same according to law and in the light of this judgment, as expeditiously as possible.

9. Allowed.