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J.K. Engineering Pvt. Ltd. v. Ane Industries Pvt. Ltd.
Judgment Summary — GA No. 2998 of 2016 (Sahidullah Munshi, J.)
Factual and Procedural Background
This application (GA No. 2998 of 2016) was filed by the defendant (M/s ANE Industries Private Limited) seeking a declaration that the Court lacks jurisdiction to entertain the suit and praying for revocation of leave granted under Clause 12 of the Letters Patent. The suit originates from a Memorandum of Understanding (MoU) dated 26 March 2013 between the defendant (a successful bidder under North Eastern Coalfields / Coal India Ltd.) and the plaintiff (M/s J.K. Engineering Pvt. Ltd.). The defendant contended the MoU incorporated by reference the terms and conditions of the Notice Inviting Tender (NIT) of North Eastern Coalfields Ltd., including a forum selection clause (clause 32.1) conferring exclusive jurisdiction on the Guwahati High Court. The defendant sought return of the plaint under Order VII Rule 10 of the Code of Civil Procedure on the ground that no part of the cause of action arose within the jurisdiction of the Calcutta High Court.
The plaintiff filed an affidavit-in-opposition denying the defendant's assertions, contending that part of the cause of action arose within the Calcutta High Court's jurisdiction and that the MoU disputes are independent and severable from the NIT/tender. Counsel for both sides (Mr. Jaydip Kar for the defendant; Mr. Ratnanko Banerjee for the plaintiff) made oral submissions. After considering the pleadings and submissions, the Court dismissed the defendant's application and directed procedural steps (listing of an attachment application, timelines for written statement and affidavits, and a further hearing date).
Legal Issues Presented
- Whether the plaint should be returned under Order VII Rule 10 of the Code of Civil Procedure because the suit ought to have been instituted in the Guwahati High Court pursuant to a forum selection clause contained in the NIT incorporated into the MoU.
- Whether the terms and conditions (including clause 32.1) of the NIT were incorporated into the MoU such that a forum selection clause in the NIT binds the plaintiff (a third party to the original tender).
- Whether, on the face of the plaint, part of the cause of action arose within the jurisdiction of the Calcutta High Court such that the plaint is maintainable in Calcutta.
Arguments of the Parties
Defendant's Arguments (as advanced by Mr. Jaydip Kar)
- The MoU dated 26 March 2013 incorporates by reference the terms and conditions of the NIT of North Eastern Coalfields Ltd., including clause 32.1 which imposes exclusive jurisdiction on the Guwahati High Court for disputes arising out of the tender and subsequent contract.
- Because of that incorporation, the plaintiff cannot ignore the forum selection clause and sue in the Calcutta High Court; the plaint should be returned and presented to the Court where the suit ought to have been instituted (Order VII Rule 10).
- The MoU was executed at Chandigarh (and on stamp paper purchased in Punjab), supporting the contention that Calcutta is not the proper forum.
- Relied on Balaji Coke Industries ((2009) 9 SCC 403) to submit that parties who agreed to a particular forum cannot resile from that agreement and that courts should respect a chosen forum.
- Relied on MR Engineers & Constructions v. Som Datt Builders ((2009) 7 SCC 696) and other authorities to press the doctrine of incorporation by reference, arguing the entire NIT should be operative as part of the sub-contract (MoU).
Plaintiff's Arguments (as advanced by Mr. Ratnanko Banerjee and plaintiff's affidavit)
- The forum selection clause in the NIT (clause 32.1) applies only between the bidder (defendant) and North Eastern Coalfields Ltd. and cannot, by stretch, be made applicable to the plaintiff who was not a bidder.
- Mere reference to the NIT in the MoU does not amount to incorporation of all its terms; incorporation requires clear and specific intention which is absent.
- The rights and obligations between the parties arise from the MoU and not from the NIT; therefore clause 32.1 is not binding on the plaintiff.
- Part of the cause of action has arisen within the jurisdiction of the Calcutta High Court (as pleaded in paragraphs 2, 3, 5, 6 and 10 of the plaint), and the Court must decide jurisdictional objections on the face of the plaint; Order VII Rule 10 requires return only where the plaint clearly belongs in another court.
- Pointed out that Guwahati High Court may lack original side jurisdiction (citing a precedent on a similar issue), which may make the nomination of Guwahati impracticable as an exclusive forum.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Balaji Coke Industries Pvt. Ltd., (2009) 9 SCC 403 | That parties who have agreed to a particular forum (forum selection clause) cannot subsequently choose another court; supports return of plaint to agreed forum. | The defendant relied on this decision to argue that the forum clause should be enforced. The Court noted the principle but evaluated applicability in context of whether the clause ousted other courts' jurisdiction and whether incorporation had actually occurred. |
| Hakam Singh, (1971) 1 SCC 286 | Authority referenced in Balaji Coke judgment concerning forum selection and agreed jurisdiction. | Referred to in the judgment's description of Balaji Coke; used as part of the chain of authorities illustrating enforcement of agreed forum clauses in certain circumstances. |
| ABC Laminast, (1989) 2 SCC 166 | Authority referenced in Balaji Coke judgment concerning forum selection and agreed jurisdiction. | Referred to as part of the precedent underlining that an agreement selecting a forum can be held valid in some contexts; Court considered but assessed factual fit with present case. |
| M.R. Engineers & Constructions Pvt. Ltd. v. Som Datt Builders Ltd., (2009) 7 SCC 696 | Distinction between mere reference to another document and incorporation by reference; arbitration/jurisdiction clause in main contract may not apply to subcontract absent clear intention. | The Court relied on the principle (paragraph 33 cited) to support the view that mere reference to the NIT in the MoU does not automatically incorporate the NIT's dispute resolution clause into the subcontract between plaintiff and defendant. |
| Bhuwalka and Sons v. Balajit Securities Ltd., 2011 (5) CHN (CAL) 516 | Used by the defendant to support submission on incorporation / forum selection (fact specific). | The Court noted the defendant's reliance but observed the decision was distinguishable on facts and not applicable in the present case. |
| SHRACHI DEVELOPERS PVT. LTD. v. BIDYULATA MOHAPATRA (decision of Justice Sanjib Banerjee, 8 Apr 2010) | Illustrates that a clause purporting to confer exclusive jurisdiction on a mis-described High Court (or one without original jurisdiction) may not operate as an effective forum selection clause conferring exclusivity. | The plaintiff relied on this decision to contend that naming Guwahati High Court (which may lack original jurisdiction) makes that forum impracticable and that the clause cannot be treated as an effective exclusive forum selection clause here. |
| AFRICA EXPRESS LINE LIMITED v. SOCOFI S.A., [2009] EWHC 3223 (Comm) | Commercial context is important in construing whether words of incorporation bring in an arbitration or jurisdiction clause from another document. | The plaintiff relied on this English Commercial Court decision to support the submission that incorporation must be construed in commercial context and mere reference is insufficient to import dispute-resolution clauses. |
Court's Reasoning and Analysis
The Court undertook a focused analysis constrained by the stage of proceedings and the narrow question under Order VII Rule 10 — whether the plaint should be returned because it should have been presented in another court. The Court emphasised that, when considering a return of plaint under Order VII Rule 10, it must primarily consider the plaint itself and is not required at that stage to traverse documents other than the plaint.
Key steps in the Court's reasoning:
- The Court accepted as undisputed that the NIT are instructions to bidders and that the defendant, as a successful bidder, had created the MoU with the plaintiff. However, the Court analysed whether the MoU incorporated the NIT in a manner that bound the plaintiff to clause 32.1.
- The Court reviewed the parties' submissions and precedents on incorporation and forum selection. It noted that precedents (including MR Engineers) distinguish between mere reference to another document and clear incorporation of its terms, particularly an arbitration or jurisdiction clause.
- The Court found that clause 32.1 of the NIT is expressed to govern “any dispute or difference arising out of this tender and subsequent contract awarded based on the bid.” The Court read this wording as indicating that the NIT clause governs disputes arising out of the tender and subsequent contract awarded on the basis of the bid, and not necessarily every subcontract or later contract entered into by the successful bidder with third parties.
- The rights and obligations between the parties in this litigation were held to flow from the MoU and not directly from the NIT. The Court observed that mere reference in the MoU to the NIT without clear incorporation and without putting the plaintiff on notice of the entire contents of the NIT was insufficient to conclude that clause 32.1 bound the plaintiff.
- The Court emphasised that, even if a forum (Guwahati High Court) is selected in a document, that selection does not by itself oust the jurisdiction of all other courts which would otherwise have jurisdiction; parties must clearly and specifically exclude other forums if they intend to oust natural jurisdiction courts.
- Materially for the return-of-plaint question, the Court read the plaint and concluded the plaintiff had pleaded that part of the cause of action arose within the jurisdiction of the Calcutta High Court (referencing paragraphs 2, 3, 5, 6 and 10 of the plaint). On that face, the plaint showed a part cause of action within Calcutta and so could not be returned under Order VII Rule 10.
- Because the Court's task at this stage was limited to the face of the plaint, and because the question whether the averments are factually correct is triable at trial, the Court declined to traverse extrinsic documents to decide the jurisdictional objection at this interlocutory stage.
Holding and Implications
Holding: APPLICATION DISMISSED. The defendant's application under Order VII Rule 10 to return the plaint for presentation before another Court (Guwahati High Court) was dismissed.
Direct implications and orders:
- The plaint will not be returned; the suit will proceed in the Calcutta High Court.
- The Court directed that an outstanding application for attachment (filed by the plaintiff) be listed for hearing.
- The defendants were granted three weeks to file their written statement to the suit and an affidavit-in-opposition to the attachment application; any affidavit-in-reply to those affidavits was to be filed within two weeks thereafter.
- The matter was directed to appear four weeks after the ensuing Christmas Vacation for further hearing.
The judgment does not assert that it establishes any new, broad legal precedent; it applies existing principles (notably the distinction between mere reference and incorporation by reference, and the limits on returning a plaint under Order VII Rule 10) to the facts of this case and decides the interlocutory application on the face of the pleadings.
The Judgment of the Court was delivered by
Sahidullah Munshi, J.:— The Court: GA No. 2998 of 2016 has been filed by the defendant complaining that this Court has no jurisdiction to entertain the suit and has also prayed for revocation of the leave granted under Clause 12 of the Letters Patent. In the application, the defendants have contended that the MoU dated 26th March, 2013 incorporates by reference the terms and conditions of the NIT of North Eastern Coalfield Ltd. which is essentially the terms and conditions and/or instruction to a bidder of North Eastern Coalfield Ltd. A copy of the said NIT of North Eastern Coalfield Ltd. has been annexed and marked as letter ‘B’.
2. The claim of the plaintiff as pleaded in the plaint arises out of the said MoU dated 26 March, 2013, which mentions a forum selection clause vesting exclusive jurisdiction with Guwahati High Court in the State of Assam. The contract has been performed in Assam. Part payment has been made in Assam. Therefore, the forum selection clause is operative and the plaintiff cannot maintain the suit in this Hon'ble High Court, in breach of the forum selection clause. It has been further contended that part of the alleged cause of action has arisen at Assam which will be evident from the plaint. In the said application, it has been further contended that as no part of cause of action has arisen within the jurisdiction of this Hon'ble Court, leave under clause 12 of the Letters Patent may be revoked. It is the further case made out by the defendant that paragraph 2 of the plaint refers to an oral agreement which, however, is to enter into further agreement and, therefore, cannot be the basis of the cause of action for the plaintiff in this suit. In any event, according to defendant, from the plaint it does not transpire that the plaintiff sues on this agreement. According to the defendant no part of the cause of action has arisen within the jurisdiction of the Calcutta High Court and the suit cannot be entertained.
3. Affidavit-in-opposition has been filed to the application filed by the defendants. The plaintiff has denied the case made out by the defendant and has contended that this Court is competent enough to try this suit. Cause of action has arisen partly within and partly outside the jurisdiction of this Court and, therefore, there is no wrong in selecting the jurisdiction of the Calcutta High court in filing the suit.
4. According to the plaintiff there could be no occasion for the defendant to argue that the plaint should be returned for filing it before the Guwahati High Court. According to the plaintiff, the application is not only mala fide but it suffers suppression of facts.
5. It is the specific case of the plaintiff that the so called forum selection clause contained in the NIT is exhaustive and takes within its fold only matters pertaining to disputes arising out the tender and the contract subsequently awarded on the basis thereof and cannot, therefore, be treated as being applicable to disputes between the plaintiff and the defendant under the MoU in question which are wholely independent and severable.
6. It is the further contention of the plaintiff that part of cause of action has arisen within the jurisdiction of this Court and the contention of the defendant that the MoU itself records that the same has been entered into at Chandigarh Road, Nawanshahr is contrary to the averments and pleadings contained in the plaint and, therefore, cannot be taken into account.
7. In support of such application, Mr. Jaydip Kar, learned senior advocate appearing for the defendant submits that since there was a forum selection clause in the agreement alleging breach whereof the suit arises, the plaintiff cannot ignore such clause in the agreement and the suit should not have been filed before this Court ignoring such clause. Accordingly, he submits that Order VII Rule 10 of the Code of Civil Procedure is attracted in this case. Order VII Rule 10 of the Code of Civil Procedure (hereinafter referred to as ‘the said Code’) says that subject to the provisions of Rule 10A, the plaint shall, at any stage of the suit, be returned and it should be presented to a Court in which the suit ought to have been instituted. Rule 10 is set out herein below:
“10. Return of plaint. - (1) [Subject to the provisions of rule 10A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
[Explanation. - For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.]
(2) Procedure on returning plaint. - On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.”
8. In order to attract the applicability of the provisions of Order VII Rule 10 Mr. Kar has referred to the agreement dated 26 March, 2013 executed by and between M/s. ANE Industries Private Limited and M/s. J.K Engineering Private Limited respectively, being the defendant and the plaintiff. He submits that this agreement was executed at Chandigarh and even it reveals that the stamp paper on which the agreement was drawn was purchased in the State of Panjub. According to Mr. Kar, since the agreement was executed in Panjub and the suit has been filed complaining breach out of the said agreement by no stretch of imagination, suit can be filed in the High Court at Calcutta.
9. He also relies on the last clause in the agreement (MOU) wherein it has been incorporated “all other terms and conditions shall remain in the same as per the provisions of NIT of said tender of North Eastern Coalfields Limited which will remain in force back to back to party of second part”. According to Mr. Kar since the party of the second part relates to M/s. J.K Enterprise Private Limited, the suit cannot be filed in this Court in view of the terms and conditions contained in the said NIT (Notice Inviting Tender).
10. According to Mr. Kar the said notice inviting tender (hereinafter referred to NIT) contains instructions to bidders and such instruction, inter alia, contains a clause being clause no. 32.0 on the question of legal jurisdiction. Clause 32.1 specifically mentions that the matter relating to any dispute or difference arising out of this tender and subsequent contract awarded based on the bid shall be subject to jurisdiction the Guwahati High Court only. It has been submitted by Mr. Kar that once the NIT contains such a clause for filing of legal proceeding before Guwahati High Court, the plaintiff cannot file the present lis in the Calcutta High Court taking leave of this Court under Clause 12 showing that part of cause of action arose outside the jurisdiction.
11. In the present case, it is undisputed that NIT as referred to hereinabove, are instructions to bidders. The defendant is a bidder and in his capacity as a successful bidder under the North Eastern Coalfields Coal India Ltd., has created the subject contract, (MOU) on 26 March, 2013 with M/s. J.K Engineering Pvt. Ltd., the plaintiff herein.
12. Mr. Kar submits that in view of the incorporation of the clause of NIT the said sub-contract, that is, Memorandum of Understanding dated 26 March, 2013 and all other terms and conditions contained therein shall in its entirety be operative upon the plaintiff. In support of such submission Mr. Kar submits that by virtue of the incorporation of the terms at the end of the said sub-contract (MOU) the entire terms and conditions of NIT stood substantially incorporated into the subject contract made by the defendant in favour of the plaintiff and if that be so, the terms and conditions as contained in Clause 32.1 will squarely be applicable to the plaintiff with regard to filing any suit arising out of the MOU dated 26 March, 2013. In support of such submission Mr. Kar has relied on a decision in the case of Balaji Coke Industries Pvt. Ltd. reported in (2009) 9 SCC 403, and relying on such decision Mr. Kar has pointed out before this Court that since the parties to the agreement had agreed to a particular forum they could no longer resile from the said position and claim that other Courts, where a part of the cause of action may have arisen would also have jurisdiction to entertain a suit or other proceeding.
13. Paragraphs 24, 25, 26 and 27 of the said judgment are relevant. In the said judgment following Hakam Sing reported in (1971) 1 SCC 286 and ABC Laminast reported in (1989) 2 SCC 166 it has been decided by the Hon'ble Supreme Court that the parties had knowingly and apparently agreed that the contract arising out of the high-seas sale agreement would be subject to Kolkata jurisdiction and even if the Courts in Gujarat also had the jurisdiction to entertain any action arising out of agreement, it ought to be held that the agreement to have the disputes decided in Kolkata by an Arbitrator in Kolkata, West Bengal, was valid and the respondent chooses to file its application under Section 9 of the Arbitration and Conciliation Act before some other Court at Gujarat in violation of such agreement and based on such finding the Hon'ble Apex Court directs return of the plaint from Gujarat to Calcutta.
14. It is also clear from the said decision that so long as the parties to a contract do not oust the jurisdiction of all the Courts, which would otherwise have the jurisdiction to decide the cause of action under the law, it cannot be said that the parties have be this contract ousted the jurisdiction of the Court. In this case it may be so that Guwahati High Court is the selected Court but jurisdiction of all other Courts have not been ousted. It may cause arises in Kolkata, it would have the natural jurisdiction and the same will stand ousted only by contract, which is absent here. Assuming there are two Courts available for a party, one is natural and the other is selected, in my view, option of the party suing must prevail upon unless jurisdiction of all other Courts including that of natural jurisdiction is ousted by contract.
15. According to Mr. Kar, it is different where the parties agreed to institute a proceeding before a particular High Court, but instead going there parties have filed the present suit before the Hon'ble High Court. Therefore, the decision is not applicable in the present case.
16. Mr. Kar has emphasized that the reference to the agreement and/or terms and conditions of the NIT will be applicable in between the parties in the MOU dated 26 March, 2013 and in this perspective he relies on a decision in the case of ‘Bhuwalka and Sons v. Balajit Securities Ltd.’ reported in 2011 (5) CHN (CAL) 516. This decision is distinguishable on facts and not applicable in this case.
17. On the issue of forum selection and doctrine of incorporation, Mr. Kar has also relied upon a judgement in the case of M.R Engineers & Constructions Pvt. Ltd. v. Som Datt Builders Ltd. reported in (2009) 7 SCC 696. He tried to give emphasis on the difference between reference to another document in a contract and incorporation of another document in a contract by reference. It has been submitted that in the present case by doctrine of reference, the entire documents in respect of which reference has been mentioned in the Memorandum of Understanding dated 26 March, 2013, it shall be deemed that the entire document has been referred to in the said MoU and the parties are bound by the terms and conditions of the NIT of which reference has been made in the MoU. Therefore, according to Mr. Kar in view of the forum selection clause, the suit cannot be held to be maintainable under the jurisdiction of Calcutta High Court and, therefore, it should have been before the Guwahati High Court.
18. Mr. Ratnanko Banerjee, learned senior advocate, submits that clause 32.1 as contained in Annexure B to the application which is an instruction to the bidders being part of Notice Inviting Tender (NIT) is only applicable in between the bidder (Defendant/petitioner and the North Eastern Coalfields Ltd). By stretch of imagination, scope and applicability of the said Notice Inviting Tender can be made applicable in case of the plaintiff who has taken special contract by virtue of the MoU dated 26 March, 2013.
19. Therefore, the terms and conditions in clause 32, which is according to Mr. Kar is a forum selection clause, cannot be made applicable to the plaintiff for filing a suit arising out of the said MoU dated 26 March, 2013.
20. Mr. Banerjee further submits that clause 32 of the said NIT will speak for itself that it cannot be binding upon a third party, who is not a bidder. The said clause says that the mater relating to any dispute or difference arising out of this tender and subsequent contract awarded based on the bid shall be subject to the jurisdiction of the Guwahati High Court only. According to Mr. Banerjee, the cause of action arises on the basis of the MoU and not on the basis of the tender in question so to say NIT. The subsequent contract awarded does not mean to say that it is based on the terms of the NIT and should have any application to the plaintiff in choosing the forum for filing this suit. Mr. Banerjee has further pointed out that this cannot be made applicable upon the plaintiff inasmuch as the plaintiff was not a party in the bid. Mr. Banerjee further submits that simply by incorporation of a clause in the MOU that all other terms and conditions shall remain in the same as per the provisions of the NIT of said tender of North Eastern Coalfields Ltd. which will remain in force back to back to party of second part, is not sufficient to hold that clause 32.1 is applicable upon the plaintiff.
21. Mere reference of the terms and conditions contained in the NIT is not itself incorporation of the agreement and it cannot be said to be agreement between the plaintiff and the defendant. Therefore, the stipulation mentioned in the terms and conditions of NIT is not applicable to the plaintiff, if at all, it is applicable in between the North Eastern Coalfields Ltd. and the defendants.
22. Mr. Banerjee, however, submits that the decision relied on by Mr. Kar in the case of MR Engineers (supra) squarely supports his case where the Hon'ble Apex Court has held in paragraph 33 that “in the absence of a clear or specific indication that the main contract in entirety including the arbitration agreement was intended to be made applicable to the sub contract between the parties, and has the wording of the sub contract discloses only an intention to incorporate by reference the terms of the main contract relating to the execution of the work as contrasted from the dispute resolution, we are of the view that the arbitration clause in the main contract did not form part of the sub contract between the parties”. The above finding of the Hon'ble Apex Court is sufficient to support the contention made by the plaintiff that doctrine of incorporation as argued by Mr. Kar has no manner of application in the present case and simply while giving reference of the terms and conditions of the NIT is not sufficient to hold that the entire terms and conditions are binding between the plaintiff and the defendant being parties in the MOU dated 26 March, 2013, irrespective of its place of execution. In addition Mr. Kar has further submitted that although Mr. Kar tried to argue that in view of clause 32.1 of the NIT the suit ought to have been filed before the Guwahati High Court, incidentally the Guwahati High Court has no Original Side Jurisdiction and, therefore, the suit cannot be filed before Guwahati High Court. In the midst of his submission Mr. Banerjee relies on a decision in the case of SHRACHI DEVELOPERS PRIVATE LIMITED v. BIDYULATA MOHAPATRA decided by Hon'ble Justice Sanjib Banerjee on 8 April, 2010 which also dealt with the jurisdictional issue in an identical fact based on an agreement between the parties containing clause “All matters arising I connection with the agreement shall be settled by the Courts within the jurisdiction of the Bhubaneswar High Court of Orissa”. In that decision His Lordship held that there is no High Court in this country by the name of Bhubaneswar High Court. However, His Lordship held that “To start with there is no High Court in this country by the name of Bhubaneswar High Court. Even if one were to ignore such minor matter and consider the clause to imply the Orissa High Court at Cuttack it would still not be forum selection clause conferring exclusivity on any specific Court as is ordinarily required for a forum selection clause to be effective. The Orissa High Court has no original jurisdiction and as such the forum selection clause could not have provided that only the Orissa High Court would have exclusive authority to entertain petitions arising out of the agreement….” Here we have this identical situation where although according to Mr. Kar suit ought to have been filed before Guwahati High Court but Guwahati High Court has got no original jurisdiction and so it is impracticable to file a suit in that Court. Those apart Mr. Banerjee has relied on a decision in the case of AFRICA EXPRESS LINE LIMITED (“AEL”) -and- (1) SOCOFI S.A (“Socofi”) reported in [2009] EWHC 3223 (Comm). Referring to the said decision Mr. Banerjee has pointed out that contracts which include words of incorporation must be construed in their commercial context which may cast light on whether an arbitration or jurisdiction clause is to be treated as incorporated by general words of incorporation. He submits that merely pointing out that other terms and conditions will be applicable is not enough to hold that by way of doctrine of incorporation the entire terms and conditions have been incorporated in the Memorandum in between the plaintiff and the defendant. The parties have made their submissions at length. After considering the submissions it transpires that the Memorandum of Understanding dated 26.3.2013 in between the plaintiff and the defendant is a sub-contract given by the defendant as a bidder while being a bidder the defendant is bound by the terms and conditions contained in the notice inviting tender issued by North Eastern Coalfield. Merely because the defendant has created a sub-contract with the plaintiff it cannot be said that clause 32.1 which is according to the defendant is a forum selection clause would be binding upon the plaintiff in filing a suit. That apart I am of the view that the wording made in clause 32.1 are also different to hold that the contract if any awarded by the bidder has to be placed on the bid. The Memorandum of Understanding cannot be said to be awarded on the basis of the bid given to the defendant nor the terms and conditions of the NIT could be made applicable in respect of the plaintiff.
23. That apart clause 32.1 of NIT clearly specifies “matter relating to any dispute or difference arising out of this tender” which means the terms and conditions contained in NIT which is part of annexure B to the application. The said clause has also mentioned that “subsequent contract awarded based on the bid shall be subject to the jurisdiction of Guwahati High Court”. The rights and obligations between the parties here flow from the Memorandum of Understanding not from the terms and conditions contained in the NIT. It a party is made to be bound by the whole of the terms of the NIT he would be put on notice about the whole of such terms. Simply by referring the terms of NIT without due incorporation thereof it cannot be presumed that plaintiff had knowledge of whole of the terms of NIT. Therefore, simply by giving a reference to the NIT in the Memorandum of Understanding without letting the plaintiff aware the entire terms and conditions which were binding upon the bidder, the bidder while executing a sub-contract cannot impose those terms and conditions upon the plaintiff and they can not permitted to take advantage of clause 32.1 of the NIT to show that forum has been agreed to be Guwahati High Court to the exclusion of Calcutta High Court.
24. Plaintiff has filed a suit purely on the basis of rights and obligations created under the Memorandum of Understanding dated 26 March, 2013 and in pusurance whereof the plaintiff has filed this suit contending that there has been breach of the terms in the said MOU. In paragraphs 2, 3, 5, 6 and 10 the plaintiff has demonstrated the cause for filing this suit. On an analysis of the averments made in these paragraphs it does not raise any doubt in the mind of this Court that part cause of action has not arisen within the jurisdiction of this Court, whether or not the averments made in those paragraphs are correct is yet to be decided in trial. Those are all triable issues. Court must give emphasis at this stage upon the averment made in the pleadings and it is for the determination of the issue whether a plaint should be rejected under provisions of Order 7 Rule 10 of the Code of Civil Procedure, Court is not required to traverse through documents other than the plaint at this stage. From the plain reading of the plaint it is sufficient that the plaintiff has been able to show the exact part cause of action within the jurisdiction of Calcutta High Court and, therefore, there is no reason to reject and/or to return the plaint as prayed for by the defendant.
25. Accordingly, the application is dismissed.
26. It is submitted by the learned Counsel for the plaintiff that an application for attachment is pending but is not listed. Let that application to be listed. The defendants are also given opportunity to file written statement to the suit as well as affidavit-in-opposition to the application concerned within three weeks; affidavit-in-reply, if there be any thereto, within two weeks thereafter.
27. Let this matter appear four weeks after ensuing Christmas Vacation.
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