1. The petitioner feeling aggrieved by the rejection of his prayer to return the plaint of Title Suit No. 223/08 filed in the court of learned Civil Judge, Guwahati, for want of territorial jurisdiction to try the suit by the learned trial court vide impugned order dated 18.3.2010 passed in Misc. (J) Case No. 268/08 has approached this court praying for revising the said order under section 115 of the Code of Civil Procedure, 1908.

2. I have heard Mr. D. Das, learned counsel for the petitioner and Mr. G.N Sahewalla, learned senior counsel for the plaintiff/respondent.

3. The respondent herein as plaintiff instituted a suit against the petitioner impleading him as defendant No. 1 registered as Title Suit No. 223/2008 and is pending for disposal in the court of learned Civil Judge, No. 3, Kamrup, Guwahati. The suit of the plaintiff is for declaration and permanent injunction; to be more specific, the plaintiff sought for the following reliefs in the suit:

“(a) a decree for declaration that the Power of Attorney dated 16.3.2002 alleged to have been executed by the Plaintiff, the Agreement for Hypothecation dated 21.8.2006 and the Form No. 8 alleged to have been submitted on behalf of the plaintiff for creation of charge to the Registrar of Companies, Shillong is illegal and void ab initio;

(b) a permanent injunction restraining the Principal Defendant No. 1, its Directors, Executors, Officers, Employees, Attorneys, Agents, or any other person(s) claiming under it from doing any act, deed or thing pursuant to the said Form No. 8, and/or the said Power of Attorney dated 16.3.2002 and/or the said Agreement for Hypothecation dated 21.8.2006

(c) a temporary injunction;

(d) full costs of the suit; and

(e) any other reliefs) to which the plaintiff is entitled under the law and equity.”

4. As regards the cause of action for the suit it is pleaded in paragraph 20 of the plaint as follows:

“20. That the cause of action for this suit arose at Guwahati on and from 28.11.2006 when the plaintiff came across the publication of the notice in the Assam Tribune and obtained the certified copies of Form No. 8 along with documents from the Registrar of Companies, Assam on 1.12.2006 when the notice dated 20.11.2006 were received by the plaintiff, 5.1.2007 when the reply was sent by the plaintiff and other subsequent and various dates within the jurisdiction of this hon'ble Court.”

5. At para 4 of the plaint, it is pleaded that the fact regarding publication of notice in the Assam Tribune daily dated 28.11.2006 by which the defendant/petitioner cautioned public in general in dealing with the plaintiff in relation of certain properties as those properties are charged with the Registrar of Companies, Assam in favour of the petitioner and falsely alleged that the plaintiffs are trying to dispose of the charged properties. The plaintiff also pleaded about service of 3 notices by the defendant/petitioner claiming that the loan transaction between them was secured by charge of the property and that the plaintiff upon enquiry with the Registrar of Companies, Shillong found that those charged properties are kept under charge under section 132 of the Companies Act on the prayer of one Pankaj Vyas claiming himself to be the attorney of the plaintiff. The plaintiff alleging the power of attorney in favour of the aforesaid person as fraudulent and manufactured documents converting some blank papers into such power of attorney has challenge the same in the suit for adjudging it to be fraudulent, illegal and void ab initio.

6. The basis of the suit of the plaintiff as indicated above is that the present petitioner (defendant No. 1) resorted to fraudulent activities in preparing and manufacturing the power of attorney from certain blank papers left by the Managing Director of the plaintiff with the defendant which were later on fabricated into power of attorney dated 16.3.2002 by which the defendaiit/petitioner is shown to have been appointed as the true and lawful attorney of the plaintiff. It is the farther case of the plaintiff that since the alleged power of attorney is a fraudulent one, the action take on the basis of such power for creating the so called charge created by way of hypothecation and mortgage of assets of plaintiff are also invalid and inoperative in law.

7. The defendant/petitioner by filing written statement denied the allegation levelled against them. In the written statement, the defendant/petitioner has raised a preliminary objection to the’ effect that the civil court at Guwahati has no territorial jurisdiction to adjudicate upon the dispute inasmuch as the parties by an agreement dated 6.3.2002 agreed that the Court of Mumbai is vested with absolute jurisdiction to adjudicate the dispute as per clause 27 of the agreement. Along with written statement, the plaintiff also filed a separate application under section 21 read with order 7, rule 10, CPC praying to return the plaint holding that the learned trial court has no territorial jurisdiction to try the suit. The said application was registered as Misc. (J) Case No. 268/08. Against the aforesaid prayer of the defendant/petitioner, the plaintiff/respondent filed written objection denying the contention made by the defendant/petitioner.

8. The learned trial court after hearing both the plaintiff and the defendant, vide impugned order dated 18.3.2010, rejected the prayer of the defendant and dismissed the miscellaneous case, which is the subject matter of this petition.

9. During the course of hearing Mr. Das, learned counsel for the petitioner, referring to clause 27 of the agreement dated 6.3.2002 submits that the agreement would be subjected to jurisdiction at Mumbai and accordingly only the Civil Court at Mumbai would be competent court to try the dispute and accordingly the jurisdiction of the court at Guwahati is excluded to try this dispute. It is alternatively submitted that even if the said clause is not treated as an absolute bar for the civil court at Guwahati to try the suit on the face of the language of the clause, even then the intention of the parties as can be gathered from the various clauses of the agreement, it can safely be concluded that the court at Guwahati has no territorial jurisdiction to try the suit. In support of his contention, Mr. Das referred to following decisions of the Apex Court:

(1) Rajasthan State Electricity Board v. Universal Petrol Chemicals Limited, (2009) 3 SCC 107.

(2) Angile Insulation v. Davy Ashmore India Ltd., (1995) 4 SCC 153.

(3) Rite Approach Group Ltd. v. Rosoboron Export, (2006) 1 SCC 206.

(4) Shriram City Union Finance Corporation Ltd. v. Rama Mishra., (2002) 9 SCC 613.

(5) Hanil Era Textiles Ltd. v. Puromatic Filter (P) Ltd., (2004) 4 SCC 671.

10. Per contra, Mr. Sahewalla, learned senior counsel appearing for the plaintiff/respondent submits that the ouster clause 27 of the agreement dated 6.3.2002 on the face of it does not oust the jurisdiction of civil court at Guwahati and the said ouster clause does not disclose that the dispute arising out of the agreement would be subjected only to Mumabi Court leading to the further conclusion that Court at Guwahati has no such territorial jurisdiction to try the suit. It is further contended that the power of attorney, validity of which is challenged in the suit, is not a registered document. By the alleged power of attorney, power is not given to an individual but to a juristic person and on the face of illegal and unauthorised manufacture of the said power of attorney out of certain blank signed papers, such a document would not authorize anybody to exercise any power and the power alleged to be exercised by the attorney in creating charge over the property of the plaintiff are illegal, unauthorised and improper. It is further contended that the part of cause of action having been arisen within the jurisdiction of Court at Guwahati, the court at Guwahati has territorial jurisdiction to try the suit. It is further pointed out that only in one agreement executed on 6.3.2002, the so called ouster clause is incorporated although in fact in the other agreement executed on 6.3.2002 on the basis of which allegedly the power of attorney was made, there is no such ouster clause, and in that view of the matter, it is argued that the learned trial court has arrived at a proper and just decision in exercise of the power vested on him by law requiring no interference in the revision petition.

11. In support of his submission, Mr. Sahewalla, apart from the decisions referred by Mr. Das also referred the principles deduced in the following decisions:

(1) ABC Laminart (P.) Ltd. v. A.P Agencies, (1989) 2 SCC 163.

(2) All Bengal Transport Agency v. Shri Hare Krishna Banik, 1984 (1) GLR 405.

(3) Union Roadways (P.) Ltd. v. Vinay Cements Ltd. & Entech Consultancy Bureau, 1999 (2) GLR 14.

(4) Presson Manufacturing Ltd. v. Woodlands Instruments (P.). Ltd. Another, 2006 (3) GLT 1831.

(5) ABC Laminart (P.) Ltd. v. A.P Agencies, Salem, (1989) 2 SCC 163.

12. In the conspectus of the submissions made by the learned counsels, I have perused the materials available on record which are annexed to the petition. In view of the rival contentions made on behalf of the contesting parties, it is required to be scrutinized as to whether the learned trial court committed any jurisdiction error in passing the impugned order rejecting the prayer of the plaintiff and in accepting the suit for necessary disposal.

13. To arrive at such a decision, let me consider first the ouster clause as contained in para 27 of the agreement dated 6.3.2002 For the sake of ready reference, clause 27 of the agreement is quoted herein below:

“(27) It is agreed hereto as to performance or non-performance or terms of performance or validity, subsistence, termination, cancellation or abandonment of this Agreement or interpretation of terms of this Agreement or any ancillary or incidental question thereto shall be referred to the sole arbitration of hon'ble Justice at Mumbai or to the Sole Arbitrator to be nominated by the Party of the First Part. The Sole Arbitrator will be entitled to give any interim relief or interim award. Subject to the aforesaid, the Arbitration will be governed by the provisions of Arbitration and Conciliation Act, 1996. This Agreement shall be subject to the jurisdiction at Mumbai.”

14. Scrutiny of the aforesaid clause 27 would disclose that the basic agreement arrived by the parties is regarding the reference to the arbitration as to performance or non-performance or terms of performance or validity, subsistence, termination, cancellation or abandonment of the Agreement or interpretation of terms of the Agreement or any ancillary or incidental question thereto. The final sentence of the aforesaid clause, runs like, thus “This Agreement shall be subject to the jurisdiction at Mumbai”.

In order to oust the court from its jurisdiction to adjudicate the dispute such ouster clause should be clear and specific attracting no other meaning other than exclusion of jurisdiction, in clear term.

15. The ouster clause, on the face of it, is not specific one. In ABC Laminart (P.) Ltd. (supra), affirmed in Hanil Era Textiles Ltd. (supra), the Apex Court held that when an ouster clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction and as regards construction of the ouster clause when words like “alone”, “only”, “exclusive” and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim “expression unius est exclusion alterius” - expression of one is the exclusion of another - may be applied. But what is an appropriate case that shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has, therefore, to be properly construed.

16. Mr. Das submits that the perusal of the various clauses of the agreement disclose the intention of the parties to the effect that the suit or legal proceeding relating to the agreement is to be tried only in the court at Mumbai to the exclusion of all other courts. In this connection the learned counsel referred to the clauses 1(v) and 21(1)(3) of the agreement dated 6.3.2002 In the aforesaid clauses, it is provided that the agreement in question would be registered at Mumbai and all the bills to be paid by first party/plaintiff to the 2nd party/defendant/petitioner in the bank account to be opened at Mumbai. Mr. Das further referred that the bill of exchange dated 27.3.2004 was made at Mumbai and the purchase order is to be placed by the petitioner from Mumbai. Referring to the aforesaid facts, Mr. Das submits that the aforesaid clauses agreed to by the parties establish that both the parties agreed to confine themselves to decide the eventual dispute only in the court at Mumbai. It is argued that vide another agreement executed on the same day, the defendant agreed to provide short-term loan to the plaintiff on security of charges of movable properties and accordingly as per the said agreement it was agreed between the parties that the plaintiff would execute necessary deed of hypothecation, mortgage or any deed or agreement and on such an agreement the disputed power of attorney in question was executed by the defendant. However, in this second agreement dated 6.3.2002, no ouster clause is provided with. Learned counsel further submits that although there is no specific ouster clause in the second agreement, but due to continuation of basic transaction between the parties agreed upon in the first agreement, the ouster clause incorporated in para 27 therein would remain operative to raise a defence of want of territorial jurisdiction of the Guwahati Court in challenging the validity of the power of attorney.

17. In a suit, the plaintiff is the dominus litis. The plaintiff has the choice to institute the suit in any court having such jurisdiction to entertain the suit and jurisdiction dependant on the averments made in the plaint and not on the pleaded facts in the written statement. Under section 20 of the CPC, a plaintiff is entitled to file a suit within the local limits of whose jurisdiction the cause of action wholly or in part arise. Thus, under the CPC, one or more courts may have such jurisdiction to adjudicate the dispute raised in the plaint with regard to place of existence of the immovable property, place of residence or work or where cause of action wholly or in part arise. When there is more than one court having jurisdiction to decide the dispute such courts are called court of “available or natural jurisdiction” in opposition to the “exclusive jurisdiction”. The jurisdiction is not limited to an actual infringement of the right to suit but it is based on material facts on which it is founded or pleaded in the plaint. If a court does not have any jurisdiction to decide the suit, the parties cannot make an agreement to decide the suit in that court. However, if an agreement is arrived at to confine to a particular court for redressal of the grievance, such agreement would not be void. But an agreement which purports to oust the jurisdiction of a court absolutely would be contrary to public policy and unenforceable. A litigant has the right to have his legal position determined by the ordinary tribunal, but with the exception in respect to a contract (a) when there is an arbitration clause which is valid and binding under the law; and (b) when parties to a contract agree as to the jurisdiction to which the disputes in respect of the contract shall be subject. A contract which purports to destroy the right of one or both of the parties to submit questions of law to the courts is contrary to public policy and is void pro tanto. Arbitration is a statutory mode of settlement; and as a matter of commercial law and practice parties to a contract may agree as to the jurisdiction to which all or any disputes on or arising out of the contract shall be subject.

18. In the case of Lee v. Showmen's Guild of Great Britain, (1952) 1-All ER 1175, Lords Denning said—

“Parties cannot by contract oust the ordinary courts of their jurisdiction. They can, of course, agree to leave questions of law, as well as questions of act, to the decision of the domestic tribunal. They can, indeed, make the tribunal the final arbiter on questions of fact, but they cannot make it the final arbiter on questions of law. They cannot prevent its decisions being examined by the courts. If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in cases of error of law, then the agreement is to that extent contrary to public policy and void.” [Referred to in ABC Laminart (supra)].

19. Survey of the various decisions of the Apex Court and other High Courts disclose that by now it has become the settled principle that where there are two or more competent courts which can entertain the suit having part of the cause of action arisen there within, if the parties to contract agree to one such court to try the dispute such agreement would be valid. But such contract must be clear, unambiguous and explicit and not vague and not hit by sections 23 and 28 of the Indian Contract Act.

20. In the case of All Bengal Transport Agency (supra). His lordship hon'ble Hansaria, J (the then Judge of the Gauhati High Court) after discussing various judicial pronouncements of the Apex Court and other High Courts proceeded tp hold that before a court's due jurisdiction can be ousted on the strength of a elause like the one at hand, the meeting of mind must not be in doubt. The court must be satisfied that the party who is sought to be bound down by the term had knowledge of the same. The learned Judge further pointed out that it is doubtful how far clear knowledge can be ascribed to a party, or his servant or employee, who may often be illiterate, to some such clause printed at the back of, say a consignment note and in one of the various terms printed in close small letters without even bearing the signature of the person concerned.

The following principles were deduced by the court on the question as to when such an agreement would oust the jurisdiction of a competent court:

(a) the agreement must be clear and unambiguous;

(b) any one sided declaration will not do in this regard;

(c) the court must be satisfied that party sought to be bound by the agreement had knowledge of the same;

(d) plea of waiver, if taken, shall also have to be examined;

(e) the court which is mentioned in the agreement must be one which has jurisdiction de hors the agreement to entertain the matter;

(f) the agreement will not be an absolute bar to the jurisdiction, but while trying to uphold the solemnity of the contract, the court will see if there are countervailing oppressive circumstances; and

(g) a re-visional court will not interfere with the matter unless there is failure of justice.

At paragraph 12 of the judgment, the learned Judge also gone into the question of relative hardship/oppressiveness of such ouster clause and held that any rigidity in this regard will hit the lower strata of the society more as compared to well off segment inasmuch as the former would find it very difficult to approach a far away court for realizing a small sum. It is further observed that a court of justice as distinguished from a court of law, cannot be a party to such a result. Remedy in most of such cases will became elusive as, for small amount hardly anybody will take long journeys at great cost for years. Now, a right without remedy is like a writ in water. This will cause great dent to the doctrine of ubi jus ibi remdium which has to be avoided. Matters relating to procedure are devised to advance justice, and not to thwart the same, it cannot be allowed to take the forum of a punishment a thing to trip people up. (Ref. Bhagwan v. Moolchand, (1983) 2 SCC 132 : AIR 1983 SC 355).

21. The requirement of consensus adidem or meeting of mind between the parties to exclude the jurisdiction of a particular court by executing such an exclusionary clause was also upheld by the High Court in the case of Chema Enterprise (supra).

22. In Halsbury's Law of England, 4th edn., vol. 9, p. 242, it is reflected on the subject as follows:

In order to give effect to exclusion clause, the following general principles of law of contract, where appropriate, is required to be kept in mind by the court in order to control the possibilities of abuse inherent in complete freedom of contract:

(1) a contracting party seeking to rely on an exclusion clause to save himself from liability in contract or tort to the other contaracting party must show that it was incorporated as a term of the contract, which usually involves the taking of reasonable steps to bring it to the notice of the other party and similar principles or incorporation apply to the exclusion by non-contractual disclaimer of tort liability;

(2) An exclusion clause is to be construed strictly against the party who introduced it and seeks to rely on it, this is known as the contra proferentem rule;

(3) Whether a clause amounts to an exclusion clause is a matter of substance and effect, so that a similar attitude is taken to indemnity clauses inserted for the same purpose;

(4) There is no objection on public policy grounds to excluding rights of set-off;

(5) If an equitable remedy is sought, the discretion of the court cannot be fettered by a contractual provision;

(6) Where there is a contract between two parties containing an exclusion clause, a third party, will not be allowed to shelter behind that clause in the absence of clear evidence that he is a party to the; contract and that the clause was intended to protect him, similarly, the burden of an exclusion clause in such a contract will not generally be imposed on him;

(7) Reflecting the above analysis, there seem to be two divergent views as to how a court should deal with exclusion clauses. First, the court may seek to establish the effect of the contract as a whole, taking into account the exclusion clause in defining the obligations of the parties. Second, the exclusion clause may be regarded as a defence, in which case, the court might establish the prima facie ambit of the contractual obligation without the exclusion clause and then consider the effect (if any) of the exclusion clause on that prima facie liability;

(8) In the absence of the very clearest words, an exclusion clause will not be construed so as, in effect, to deprive one party's stipulation of all contractual force.

In case of any ambiguity in the exclusive clause, it is to be construed against the party putting forward the clause for his protection and this is known as contra proferentem rule.

23. Applying the principles of law that emerges from the above discussion, in order to give effect to the exclusion clause there must be a meeting of mind between the parties to such exclusion and the comparative hardship between the parties is also required to be considered objectively.

24. Turning to the case in hand, we find that the exclusion clause relied on by the petitioner that it is incorporated in the final sentence of clause 27 of the agreement as “This agreement shall be subject to court at Mumbai”. In the suit, as indicated above, the declaration sought for by the plaintiff to the effect that the power of attorney dated 16.3.2002, the agreement for hypothecation dated 21.8.2006 and the Form 8 alleged to have been submitted by the plaintiff for creation of charge are illegal and void. The second agreement dated 6.3.2002 on the basis of which the power of attorney was executed has no such ouster clause nor such a clause is found to exist in power of attorney also. The cause of action pleaded in the plaint is a publication of the notice by the defendant in Assam Tribune in its issue dated 20.11.2006 and receipt of notice by the plaintiff/respondent issued by the defendant/petitioner dated 20.11.2006 It is further alleged that the defendant/petitioner exercised a fraud in executing the power of attorney alleged to have been issued in favour of the petitioner-company.

25. Although Mr. Das strenuously tried to extend the ouster clause of the first agreement which relates to manufacturing of the products to the subsequent agreement dated 6.3.2002 strict and proper interpretation of the ouster clause, does not permit to accept the argument. The averments made in the plaint along with connected documents filed disclose that part of the cause of action arise within the territorial jurisdiction of the court at Guwahati.

26. The learned trial court has rightly held that the present suit is not out of a dispute in realm of first agreement dated 6.3.2002 That apart, no failure of justice, even remotely, could be pointed out by the petitioner, if the suit is tried at Guwahati. On the other hand, it is an admitted fact that the petitioner has also got its office/depot at Guwahati within the jurisdiction of the court at Guwahati. The learned trial Judge has committed no jurisdictional error in passing the impugned order justifying interference in exercise of re-visional jurisdiction of the court under section 115, CPC.

27. In view of the above discussions, I do not find any merit in this revision petition and resultantly the petition stands dismissed. No costs.