1. The question that arises for decision in this civil miscellaneous appeal is whether the court of the Subordinate Judge, Quilon has jurisdiction to entertain the appellant's suit. The Subordinate Judge answered the question in the negative, and hence the appeal by the plaintiff.

2. The suit against defendants 1 and 2 (respondents 1 and 2 herein) in based upon a contract of sale evidenced by Ex. P1 to recover damages to the tune of Rs. 38,718.75 inclusive of interest for breach of that contract. The 1st respondent is a resident at Mozambique, East Africa and the appellant is a resident at Quilon (Kerala). Ext. P1 dated 30-11-1963 was executed by the 1st respondent at Mozambique and by the appellant at Quilon for the sale of 125 tons of dry cashewnuts at the rate of Rs. 841.25 a ton to be shipped and delivered to the appellant at Port Cochin on payment of 95% of the invoice value under the Bill of Lading. On arrival of the cashewnuts, it was found that the nuts did not conform to the quality contracted for. So, in the presence of the 2nd respondent who is the agent of the 1st respondent at Bombay, a cutting test of the samples was conducted at Cochin, when it was found that 421/3% of the nuts consigned were useless and, therefore, allowing the agreed margin of 10% for tolerance the extent of the damage was fixed at 331/3% by mutual agreement. On the basis of this, the loss of the appellant was arrived at Rs. 33,491. 24 P. which is sought to be recovered as damages from respondents 1 and 2 with interest at 6% from 301163.

3. There is a provision in Ex. P1 contract that only the Bombay court shall have jurisdiction for any legal proceeding in connection with or arising out of the contract. It is basing upon this clause in the contract that it is contended on behalf of the respondents that the jurisdiction to try the suit vests only in the Bombay court and not in the Quilon court.

4. S.20 of the Civil Procedure Code provides that every suit shall be instituted within the local limits of whose jurisdiction the defendants reside or carry on business or work for gain or where the cause of action arises wholly or in part. In the instant case, it is admitted that the whole of the cause of action had risen within the local limits of the Subordinate Judge's Court, Quilon. Therefore, the Subordinate Judge, Quilon has jurisdiction to try and dispose of the suit but for the bar of jurisdiction to which the parties had subscribed in Ex. P1, which provides Bombay as the sole place for suing if the parties resorted to court on account of the breach of the contract. If two courts have concurrent jurisdiction to try a case, there is nothing contrary to law in an agreement between the parties that the dispute between them should be tried by one court rather than the other. But, the parties cannot by agreement oust the jurisdiction of a court having jurisdiction and vest jurisdiction in a court otherwise not competent. On this point reference may be made to the relevant portion of S.28 of the Indian Contract Act. It runs as follows:

"Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent."

5. The section lays down the principle that an agreement in restraint of legal proceedings is void. In the instant case, no part of the cause of action under the contract arose within the jurisdiction of the Bombay Court. The 1st respondent being a permanent resident of East Africa, it cannot also be contended that the test of residential qualification will be complied with by the institution of the suit in the court in Bombay. The 2nd respondent is not a party to the contract. His residence at Bombay is therefore no consideration for holding that the suit should be filed in Bombay as he is not a party to Ex. P1. Having found that Bombay is not the place for instituting the suit either as the place in which the cause of action has arisen or as the place where the 1st respondent lives, the court in Bombay cannot be invested with jurisdiction by agreement of parties as it would offend the statutory provision contained in S.28 of the Contract Act. On this principle, Koshi, C. J. after considering the relevant authorities, observed as follows at page 203 of the reports in Mohammed Kasim Haji Ahamed Kunju v. Sree Hamuman Industries (AIR. 1956 Travancore-Cochin 200).

"The passage referred to from Pollock and Mulla's Contract Act and Mulla's Civil Procedure Code, the two decisions of this court and the Madras decision cited at the beginning of the judgment referred to in the Madras case clearly show that an agreement seeking to invest a court which has no jurisdiction with authority to try disputes arising out of a contract is void and cannot be pleaded as a bar to a suit brought in violation of that agreement see also 'Crawley v. Luchmee Ram;1 Agra HCR (Civ.) 129 (R) and 38 Cochin LIZ 208 (S)"

6. The counsel of the respondents has made an attempt to justify the decision of the lower court under S.230 of the Contract Act which runs as follows:

"In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Such a contract shall be presumed to exist in the following cases:

(1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(2) Where the agent does not disclose the name of his principal;

(3) Where the principal, though disclosed, cannot be sued."

In the instant case, the 1st respondent is a resident of East Africa and the appellant a resident of Quilon, the offer and acceptance of the contract being only between them. The 2nd respondent acted as an agent of the 1st respondent, but did not enter into the contract himself on behalf of his principal. S.230 applies only to contracts entered into by agents on behalf of their principals, and does not apply to contracts entered into by the principals themselves. The section is clear on this: and if any authority is required for the position, the following observation by Ananthanarayanan, J. in V. R. Mohanakrishnan v. Chimanlal Desai and Co., (AIR. 1960 Madras 452) at page 455 of the reports may be cited.

"It seems clear that, for the personal liability of the home agent to accrue, it must be shown that he entered into the contract by or on behalf of his principal, by signing on behalf of his principal or in some other way proving the fact that the contract was one between the merchant here and the home agent on behalf of a foreign principal. Where the contract is between two principals, in form and substance, the inconvenience of suing the foreign principal here, the fact that the merchant ordering the goods might not have looked to the credit or performance of the foreign principal but of the home agent etc., would be extraneous and irrelevant. In such a context, S.230 itself would not apply, and hence the liability under sub-section (1) of S.230 would not arise."

7. Ananthanarayanan, J. poses the following question in the above decision with regard to the nature of the contract entered into by the agent on behalf of the principal:

"Are we to assume that merely because the home agent of the foreign principal establishes the necessary contacts, or is the route through which the transaction is effected, he enters into the contract himself or on behalf of his principal, within the scope of the section?"

The learned judge answers also the question in the following passage:

"In other words, where the contract is inform between a merchant here and a foreign merchant as to principals, does the agent become a party to the contract, because the communication has been inevitably through him as the holder of the import licence, or as the "architect of the contract" as the learned counsel for the appellant Mr. R. Gopalaswami Ayyangar urges? We consider that it would be unwise to import such factors into the determination of what is essentially a question of juridical relationship. For, once we do this, it would be difficult to determine how far such factors can be relevantly assessed, and what weight should be placed upon them."

8. The principle of the above decision, as far as it is relevant for the case before us, is that for the application of S.230 it must be shown that the agent entered into the contract himself on behalf of his principal, by signing on behalf of his principal, or in some other way showing that the contract was one between the merchant here and the home agent on behalf of the foreign principal. Where the contract is between two principals in form and in substance, S.230 would not apply.

9. It is, therefore, clear that under the contract (Ex. P1) the Bombay court had no jurisdiction, and the Quilon court alone had jurisdiction. In such a case, the jurisdiction of the Quilon court could not have been ousted and jurisdiction could not have also been conferred on the Bombay court. The residence of the 2nd respondent, not being a party to the contract, could not have authorised the parties to confer jurisdiction, by their agreement, on the Bombay court. Now that the 2nd respondent is also made a party to the suit, the appellant could have filed the suit in Bombay if he wanted. But he cannot be compelled to do it on the basis of the illegal provision in Ex. P1, which did not contemplate a suit against the 2nd respondent. In these circumstances, it is clear that the court below is not correct in its conclusion. The forum chosen by the appellant, the Subordinate Judge's Court, Quilon, is the proper forum.

10. In the result, the C.M.A. is allowed and the order appealed against is set aside. The Subordinate Judge, Quilon is directed to take back the plaint on file and dispose of the suit on merits in accordance with law. The appellant will also get his costs of this appeal from the respondents. Allowed.