1. This revision petition is directed against the order dated 22.5.2002 passed by the learned Civil Judge (Senior Division), Dibrugarh in Money Suit No. 13 of 2002 rejecting the plea of the revision petitioner/defendant No. 1 regarding the jurisdiction of the said court and by holding that the said court has jurisdiction to try the suit.
2. A suit being Money Suit No. 13 of 2002 was instituted by the present opposite party No. 1 as plaintiff against the present revision petitioner as defendant and the present opposite party No. 2 as pro forma defendant, in the court of the learned Civil Judge, (Senior Division) at Dibrugarh on 22.1.2002 for realisation of a sum of Rs. 24,07,364 together with interest at the rate of 19% per annum from the date of filing of the suit till the date of realization, on the basis of the agreements Page: 390dated 1.4.1996 and 30.4.1997 executed between the revision petitioner and the present opposite party No. 1. The revision petitioner on receipt of the summons entered appearance and filed the written statement wherein a preliminary objection regarding the jurisdiction of the said court was taken on the ground that the parties have attorn to the jurisdiction of the courts of the province of Alberta, Canada to the exclusion of the jurisdiction of the Indian Courts and also by taking an alternative stand that as neither registered office nor the branch office of the defendant revision petitioner being within the jurisdiction of the Dibrugarh Court, the said court has no territorial jurisdiction. It has further been contended that there is no project within the territorial jurisdiction of Dibrugarh Court and the branch office of the defendant revision petitioner being in Gurgaon, Haryana and the registered office of the plaintiff being at New Delhi as well as all the invoices having been raised by the plaintiff from New Delhi and all payments also having been made at New Delhi, the court at Dibrugarhj has no jurisdiction over the subject-matter involved in the suit. The learned Civil Judge (Senior Division) Dibrugarh thereafter upon hearing the learned counsel for the parties by the impugned order dated 22.5.2002 rejected the plea taken by the revision petitioner/defendant regarding the jurisdiction of the said court by holding that the clause regarding the jurisdiction of the court contained in the agreement dated 30.4.1997 executed between the parties cannot take away the jurisdiction vested by law in any court and also cannot divest the court of its inherent jurisdiction to try the disputes arising out of the agreement as it would be against the public policy. It has further been held that the jurisdiction of any court is conferred by the statute and it can only be taken away by the statute as provided in section 28 of the Contract Act and the agreement between the parties is hit by section 28 of the Contract Act as it does not permit the parties to oust the jurisdiction of the court by agreement, if, otherwise, the court has jurisdiction in the matter, which would be against the public policy if the parties by agreement can oust the jurisdiction of the courts. Hence the present revision petition.
3. I have heard Ms. Usha Baruah, learned counsel for the revision petitioner and Mr. R. Hazarika, learned counsel appearing on behalf of the opposite party No. 1. None appears for the opposite party No. 2 despite service of notice.
4. Ms. Baruah, learned counsel for the revision petitioner has submitted that since by agreement dated 30.4.1997 the parties have attorn to the jurisdiction of the courts of the province of Alberta, Canada, no court other than the courts in the province of Alberta has jurisdiction to entertain any suit arising out of said if agreement between the parties. Page: 391According to the learned counsel the court at Dibrugarh has, therefore, no jurisdiction as the suit filed by the opposite party No. 1 is based on such agreement dated 30.4.1997 It has further been submitted that though it is not open to the parties to confer by their agreement, jurisdiction on a court which it does not possess under the Code of Civil Procedure, by an agreement between parties the jurisdiction of a court can be taken out, where two or more courts have, under the Civil Procedure Code, jurisdiction to try a suit or proceeding and in that the event is not contrary to the public policy and does not contravene the provision of section 28 of the Contract Act. Ms. Baruah has further submitted that it is evident from ouster clause relating to the jurisdiction of the court as well as from the facts and circumstances of the present case that it can be inferred that the jurisdiction of the all other courts except the courts in the province of Alberta has been excluded by the agreement between the parties though the ouster clause is not qualified by the words like “alone”, “only” or “exclusively”. The learned counsel for the petitioner has further contended that the growing global commercial activities gave rise to the practice of parties to a contract agreeing beforehand to approach for resolution of their disputes by any court of their choice and in the present case by foreign court and in accordance with the law applicable to that court and the agreement between the parties having been executed in Canada, it is the court in the province, of Alberta, Canada which only has the jurisdiction to try any dispute arising out of the agreement dated 30.4.1997 between the parties. The learned counsel, therefore, submits that the court at Dibrugarh has no jurisdiction to try and decide the suit filed by the present opposite party and, therefore, the plaint is to be returned to the opposite party No. 1.plaintiff for filing the same in proper court. Ms. Baruah referring to the Explanation to section 20 of the Civil Procedure Code has further submitted that as the plaintiff as well as the revision petitioner/defendant No. 1 has subordinate office in Gurgoan in the State of Haryana only and New Delhi, respectively, the court at Gurgoan, Haryana or the court at New Delhi within which jurisdiction the plaintiff/opposite party has its registered office can try the suit. Ms. Baruah in support of her contention has placed reliance on the decision of the Apex Court in Hakam Singh v. Gammon (India) Ltd.† ., reported in (1971) 1 SCC 286 : AIR 1971 SC 740, Shriram City Union Finance Corporation Ltd. v. Rama Mishra., reported in (2002) 9 SCC 613; Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd.. reported in (2004) 4 SCC 671.
5. Mr. Hazarika, learned counsel appearing on behalf of the opposite party on the other hand supporting the order passed by the learned Civil Judge (Senior Division) rejecting the plea of the revision petitioner/defendant Page: 392No. 1 regarding the jurisdiction of the court, has submitted that the claim of the opposite party No. 1.plaintiff in Money Suit No. 13 of 2002 based on two agreements, one dated 1.4.1996 and other dated 30.4.1997 According to the learned counsel agreement dated 1.4.1996 has no clause at all regarding the ouster of the jurisdiction of any court and/or choice of jurisdiction by the party, therefore, the court at Dibrugarh has jurisdiction at least over the part of the claim of the present opposite party No. 1.plaintiff arising out of the said agreement dated 1.4.1996 and hence it cannot be said that the court at Dibrugarh has no jurisdiction to try and decide the Money Suit No. 13/02 filed by the present opposite party No. 1. It has further been contended by the learned counsel that the project in question having been implemented at Duliajan, i.e, within the jurisdiction of the court at Dibrugarh, the cause of action in part arose within the jurisdiction of the said court and, therefore, in view of clause (c) of section 20 of the Civil Procedure Code the court at Dibrugarh has the jurisdiction to try and decide the suit filed by the opposite party No. 1.plaintiff. Mr. Hazarika referring to the clause 7. Of the agreement dated 30.4.1997 has contended that by the said clause the jurisdiction of the other courts where cause of action, wholly and in part, arose, have not been ousted exclusively and by the said agreement it was not agreed that only the court in the province of Alberta, Canada, will have jurisdiction in respect of any dispute arising out of the agreement dated 30.4.1997 to the exclusion of any other courts having natural jurisdiction. Mr. Hazarika, has further contended that the jurisdiction of a court cannot be busted by the parties by agreement and the same is against the public policy and, therefore, hit by section 28 of the Contract Act. Referring to the Explanation to section 20 of the Civil Procedure Code, the learned counsel has submitted that the said Explanation relates to clauses (a) and (b) of the section 20 only and does not relate to clause (c) of the section 20 of the Civil Procedure Code. Therefore, the plaintiff can institute a suit in a place where the cause of action, wholly and in part arises and in the instant case as the project was undertaken at Duliajan, within the territorial jurisdiction of the court at Dibrugarh, the said court has the jurisdiction to try and decide the suit. The learned court in support of his contention has placed reliance on a decision of this court in North Eastern Electricity Power Corporation Ltd. v. Lakhi Enterprise, reported in AIR 1992 Gauhati 42.
6. I have considered the submissions of the learned counsel for the parties and also perused the pleadings in the plaint as well as in written statement filed by the parties.
7. For the purpose of appreciating the rivals contentions of the parties Page: 393regarding the question as to whether the court at Dibrugarh has the jurisdiction to try and decide the suit filed by the present opposite party No. 1, the pleadings made in the plaint as well as in the written statement are required to be looked into. The opposite party No. 1 in his plaint has claimed a decree for Rs. 24,07,324 with interest, stating, inter alia, that two agreements were entered into between the plaintiff (opposite party No. 1) and the defendant (revision petitioner), one on 1.4.1996 whereby it was agreed upon between the parties that the plaintiff shall market the defendant's all capabilities in India on commission basis and agreed to pay a commission on orders supplied from off-share of India as percentage of the sales price, determined on a case by case basis but not exceeding 5% upto US$ 1,000,000.00. It has further been pleaded that on projects exceeding US$ 1,000,000.00 the commission is to be mutually agreed upon on a case-by-case basis and such commission are to be paid within 10 (ten) days of defendants receipt of payment from Indian clients. The plaintiff also pleaded in the plaint that they entered into another agreement dated 30.4.1997 whereby the defendant allotted to the plaintiff, the jobs of setting up Glycol Dehydration Plant in the premises of the proforma defendant at Duliajan, Assam, namely, Oil India Ltd. (the opposite party No. 2 herein), as a sub-contractor under the defendant, against the contract order dated 13.7.1996 allotted to the defendant by the proforma defendant and under the said agreement the defendant agreed to pay the purchase price to the plaintiff within 15 (fifteen) days of the receipt by the defendant of the payment for the goods and services from the proforma defendant and in case the payments are paid in installments the amount payable to the plaintiff is also to be paid in the same proportion as the defendants is paid by the proforma defendant. The plaintiffs further case is that even though the defendant already received 75% of the payment from the proforma defendant, the payment of 5% commission to the plaintiff, which amounts to Rs. 4,10,634 in Indian currency in terms of the agreement dated 1.4.1996 has not been paid in spite of several communications issued by the plaintiff, which the defendant avoided payment on one pretext or the other. The plaintiff also pleaded that though as per the terms of the agreement dated 30.4.1997, it has performed its part of contractual obligation to the fullest satisfaction of the defendant as well as proforma defendant, the defendant in spite of raising the bill by the plaintiff did not pay the amount against the two invoices dated 30.8.1999 and 16.8.1999 and an amount of Rs. 13,09,660.00, thereby claiming a total sum of Rs. 24,07,364 together interest at the rate of 19% per annum calculated upto 21.1.2002 The plaintiff in the plaint has also stated that the defendants setup its project site at Duliajan, Assam to carrying out the Page: 394part of its contractual obligation with the proforma defendant and the place of work where the contract with the proforma defendant was to be executed under both the agreements dated 1.4.1996 and 30.4.1997 between the plaintiff and defendant is at Duliajan, Assam and the office of the proforma defendant from where the contracts were awarded to the defendant is also in a Duliajan, Assam and the plaintiff has also a local office at Duliajan, Assam within the territorial jurisdiction of the court at Dibrugarh.
8. The defendant revision petitioner in the written statement has taken up the plea that the court at Dibrugarh has no jurisdiction to try and decide the suit filed by the plaintiff/opposite party No. 1 on the ground that by agreement dated 30.4.1997, the parties irrevocably attorned to the jurisdiction of the courts of the province of Alberta, Canada to the exclusion of all other natural jurisdiction and hence only the courts of the province of Alberta, Canada has the jurisdiction to entertain such suit. The defendant, however, admitted that two agreements dated 1.4.1996 and 30.4.1997 were entered into and both were executed at Canada. The pleaded case of the defendant is also that though the plaintiff rendered certain services within the premises of the Oil India Ltd., all payments and the correspondences relating to that effect were made from New Delhi, Gurgoan and Canada only and, therefore, the court at Dibrugarh has no jurisdiction on the subject-matter of the suit and the suit may have either been filed at New Delhi or at Gurgoan, stating that the branch office of the defendant in India is in Gurgoan, Haryana and the registered office of the plaintiff is at New Delhi.
9. From the pleadings of the parties, on the question of jurisdiction of the court, it, therefore, appears that two agreements were executed between the plaintiff and the defendant No. 1 dated 1.4.1996 and 30.4.1997 In the agreement dated 1.4.1996 there is no clause regarding ouster of jurisdiction of any court or choice of jurisdiction of the court between the parties. The agreement dated 30.4.1997, no doubt has a clause regarding the jurisdiction of the court, which is reproduced below:
“17.1 The parties agree that the application of the United Nations convention on contracts for the International Sale of Goods does not apply to this contract and is strictly excluded. This contract is governed by and will be construed in accordance with the laws of the Province of Alberta, Canada and the parties irrevocably attorn to the jurisdiction of the courts of the Province of Alberta.”
10. As discussed above, the suit filed by the plaintiff/opposite party No. 1 herein is based on two agreements dated 1.4.1996 and 30.4.1997 It is the admitted position of fact that under both the agreements the sub-contractor, namely, the plaintiff had rendered certain services Page: 395within the premises of the Oil India Ltd., Duliajan, i.e, within the territorial jurisdiction of the Dibrugarh Court. The agreement dated 1.4.1996 does not contain any clause relating to ouster of jurisdiction of any court and submission of the exclusive jurisdiction of a court. Only the agreement dated 30.4.1997 has such a clause stipulating that the parties irrevocably attorn to the jurisdiction of the courts of the Province of Alberta. The said clause does not stipulate that the courts of the Province of Alberta alone will have jurisdiction over a dispute arising out of such agreement, to the exclusion of any other courts having natural jurisdiction. Therefore, it is required to be seen whether the jurisdiction of the other courts having natural jurisdiction over the subject-matter has been excluded by the ouster clause relating to jurisdiction and agreeing to submit to the exclusive jurisdiction of the courts of the Province of Alberta, Canada to the exclusion of all other courts having natural jurisdiction.
11. section 20 of the Civil Procedure Code provides that every suit shall be instituted in a court within the local limits of whose jurisdiction:
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation to section 20 of CPC provides that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
12. Therefore, a suit can be instituted even where the cause of action wholly or in part arises. It is not that the parties cannot by an agreement exclude the jurisdiction of any court having natural jurisdiction and agreed to resolve their dispute by a foreign court termed as a “neutral court” or “court of choice” creating exclusive or non-exclusive jurisdiction in it. The Apex Court in Modi Entertainment Network v. W.S.G Cricket Pte. Ltd., reported in (2003) 4 SCC 341 has held as under:—
‘11. In regard to jurisdiction of courts under the Code of Civil Procedure Page: 396(“CPC”) over a subject-matter one or more courts may have jurisdiction to deal with it having regard to the location of immovable property, place of residence or work of a defendant or place where cause of action has arisen. Where only one court has jurisdiction, it is said to have exclusive jurisdiction; where more courts than one have jurisdiction over a subject-matter, they are called courts of available or natural jurisdiction. The growing global commercial activities gave rise to the practice of the parties to a contract agreeing beforehand to approach for resolution of their disputes thereunder, to either any of the available courts of natural jurisdiction and thereby create an exclusive or nonexclusive jurisdiction in one of the available forums or to have the disputes resolved by a foreign court of their choice as a neutral forum according to the law applicable to that court, it is a well-settled principal that by agreement the parties cannot confer jurisdiction, where non-exists, on a court to which CPC applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign court; indeed in such cases the English courts do permit invoking their jurisdiction. Thus, it is clear that the parties to a contract may agree to have their disputes resolved by a, foreign court termed as a “neutral court” or “court of choice” creating exclusive or non-exclusive jurisdiction in it.’
13. In Hanil Era Textiles Ltd. (supra), on which the learned counsel for the revision petitioner has placed reliance, the Apex Court has held that where an ouster clause occurs, in an agreement, it is pertinent to see whether there is ouster of jurisdiction of other courts and when the 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 court should avoid exercise of its jurisdiction. It has further been held that as regards construction of the ouster clause when words like “alone”, “only”, “exclusive” and the like have been used there may be no difficulty and even without such words in appropriate cases the maxim “expressio unius est exclusio alterius” - expression of one is the exclusion of another may be applied. The Apex Court has held that what is an appropriate case shall depend on the facts of the case and therefore, the ouster clause is to be properly construed having regard to the facts of each case.
14. In the instant case as discussed above, the words like “alone”, “only”, “exclusive” and the like have not been used in the ouster clause in the agreement dated 30.4.1997, on which the part of the plaintiffs claim is based. The defendant/revision petitioner in the written statement has specifically pleaded that the suit can either be filed at New Delhi or at Gurgoan, Haryana, though it has also pleaded that by virtue of clause 17.1 of the agreement dated 30.4.1997, the parties have attorned to the jurisdiction of the court of the Province of Alberta, Canada. It is Page: 397apparent from the said stand taken by the defendant/revision petitioner as well as from the pleadings in the written statement that the invoices were raised from Delhi and all payments were made from Delhi and also correspondences between the plaintiff and defendant took place from Delhi, that though in the agreement dated 30.4.1997 a clause regarding the jurisdiction of the courts of the Province of the Alberta was incorporated, the said provision does not exclude the jurisdiction of all other courts of natural jurisdiction. Moreover, as discussed above, the plaintiffs claim is also based on the agreement dated 1.4.1996, which agreement does not contain any ouster clause taking away the jurisdiction of any court.
15. From the pleadings of the parties in the plaint as well as in the written statement it is also an admitted position of fact that the plaintiff pursuant to both the agreement has undertaken works on behalf of the defendant/revision petitioner at Duliajan, i.e, within the territorial jurisdiction of the court at Dibrugarh and the dispute between the parties is relating to non-payment of certain amounts relating to such Work. Therefore, cause of action in part at least arose at Duliagan, i.e, within the jurisdiction of the court at Dibrugarh and, hence, the plaintiff can institute the suit in the said court by virtue of the provision of clause (c) of section 20 of the Civil Procedure Code.
16. Though the learned court below in the impugned order dated 22.5.2002 has held that by ouster clause contained in the agreement dated 30.4.1997 the provision of section 28 of Indian Contract Act has been violated, as the parties cannot by agreement include the jurisdiction of court or as the party neither exclude the jurisdiction of any court nor confer any jurisdiction on any court, the said finding, recorded by the learned court below; in my opinion, is not the correct proposition of law keeping in view the section 28 of the Contract Act which stipulates that any agreement in restrain of legal proceeding is void. No doubt if any agreement is entered into between the parties restricting absolutely from enforcing ones right under or in respect of any contract, by the usual legal proceeding in the ordinary tribunals or limiting the time within which he may, thus, enforce his rights, extinguish the rights of any party to the agreement or discharges any party thereto, from any liability under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, said agreement would be void under section 28 of the Contract Act. Therefore, it cannot be said that the parties by an agreement cannot oust the jurisdiction of a particular court and choose to resolve their dispute by a particular court exclusively. The Apex Court in Shriram City Union Finance Corporation Ltd. (supra) has also held that it is Page: 398open for a party for his conveyance to fix the jurisdiction of any competent court to have their dispute adjudicated by the court alone, in other words, if one or more courts have the jurisdiction to try any suit, it is open to the parties to choose any of the two competent courts to decide their dispute unless the terms of any contract is not against the any public policy.
17. As discussed above, in the present suit in question the plaintiff case being based on two agreements, one dated 1.4.1996 and the other dated 30.4.1997 and the agreement dated 1.4.1996 having no ouster clause regarding the jurisdiction of courts and the cause of action partly being arose at Duliajan, i.e, within the territorial jurisdiction of the court at Dibrugarh, it cannot be held that the court at Dibrugarh has no jurisdiction to try the suit filed by the plaintiff/opposite party No. 1, as at least the part of the claim of the plaintiff is not covered by any ouster clause, even if the clause in the agreement dated 30.4.1997 ousted the jurisdiction of any court except the court in the province of Alberta, Canada.
18. The learned counsel for the revision petitioner has also placed reliance on the Explanation to section 20 of CPC and also the decision of the Apex Court in Hakam Singh (supra) in support of her contention that as the defendant-company has subordinate office at Gurgoan in the State of Haryana and the plaintiff has principal office in New Delhi, it is either the court at New Delhi or Gurgoan, Haryana has the jurisdiction to try the suit filed by the plaintiff and, therefore, the Dibrugarh court has no jurisdiction to try such suit. In Hakam Singh (supra) the Apex Court has held that the word “corporation” appearing in the Explanation to section 20 of CPC includes not only a statutory corporation but also the companies registered under the Companies Act. In the said case it has also been held that the parties cannot by agreement confer jurisdiction on, court not possessed by it;under the Code, but by agreement the parties can decide to resolve their dispute by one of such courts having jurisdiction to try a suit or proceeding and such an agreement does not contravene section 28 of the Contract Act. The Apex Court in New Moga Transport Co., through its Proprietor Krishanlal Jhanwar v. United India Insurance Co. Ltd., reported in (2004) 4 SCC 677, while relying on the decisions in Shriram City Union Finance Corporation Ltd. (supra) and Hakam Singh (supra) has also held that the intention of the parties to exclude a court's jurisdiction should be reflected in clear, unambiguous, explicit and specific terms and can be culled out from use of expressions “only”, “alone”, “exclusive” and the like with reference to a particular court and when such intention is clear, unambiguous, explicit, in such cases Page: 399only the accepted notions of contract to bind the parties. In the said case the Apex Court also held the Explanation to section 20 relates to the provision contained in clauses (a) and (b) of section 20 of the Civil Procedure Code. Therefore, if a cause of action, wholly or in part, arises within the jurisdiction of a particular court, a suit can be filed in such a court and the same will have the jurisdiction to try and decide such suit. A Single Bench of this court in North Eastern Electricity Power Corporation Ltd. (supra) has held that a suit can be instituted where the cause of action, wholly or in part, arises.
19. For the reasons given above, I am in the agreement with the ultimate decision of the learned court below in holding that the court at Dibrugarh has the jurisdiction to try the suit filed by the opposite party No. 1, but on different grounds, as discussed above.
20. In view of the aforesaid discussions, I do not find any merit in the present revision petition and hence the same is dismissed. No costs.