A.K Srivastava, Chairman:— This appeal has been filed against orders dated 28.2.2001 passed by Mr. S.N.P Dave, learned Presiding Officer of Debts Recovery Tribunal, Jaipur in O.A No. 353/2000 - Bank of Rajasthan Ltd. v. Rajasthan Breweries Ltd.
2. By the impugned order, the only question decided relates to the jurisdiction of that Tribunal to decide the aforesaid O.A The learned Presiding Officer has come to the conclusion that the Debts Recovery Tribunal, Jaipur has the jurisdiction to try this O.A Feeling aggrieved, the defendant No. 1 in the said O.A has filed this appeal.
3. Heard Mr. Rajeev Dutta, Senior Advocate for the appellant and Mr. Paras Kuhad, Counsel for the respondent Bank.
4. Learned Counsels for the parties were not at dispute that the Debts Recovery Tribunal, Jaipur also has the jurisdiction to entertain and decide the said O.A The conflict between the parties boils down to the agreements between parties. The contention of the appellant is that the loan agreements between the parties had a stipulation therein in the following words:
“This agreement shall be subject to the jurisdiction of Court at Delhi.”
Therefore, according to him the jurisdiction of the Debts Recovery Tribunal, Jaipur has been excluded.
5. Learned Presiding Officer in his impugned order came to the conclusion that the aforesaid clause did not oust jurisdiction of Debts Recovery Tribunal, Jaipur because in the aforesaid clause words like ‘alone’, ‘only’, or ‘exclusive’ were not used.
6. Learned Counsel for the appellant contended that the view taken by the learned Presiding Officer of Debts Recovery Tribunal, Jaipur was erroneous as the jurisdiction clause in the agreements ought to have been interpreted as excluding the jurisdiction of other Debts Recovery Tribunals. He relied upon the law laid down on the subject in (1989) 2 SCC 163 : AIR 1989 SC 1239, ABC Laminart Pvt. Ltd. v. A.P Agencies, wherein the maxim ‘expressio unius est exclusio alterius’ expression Of one as the exclusion of another was applied. He also contended that the law laid down in that case by the Supreme Court was found in agreement in a later Supreme Court decision reported in (1993) 2 SCC 130 : AIR 1993 SC 2094, RSDV Finance Co. P. Ltd. v. Shree Vallabh Glass Works.
7. The observations made by Hon'ble Judges of the Supreme Court in the aforesaid two cases???ay be extracted as follows:
ABC Laminart Pvt Ltd. v. A.P Agencies
“When the Court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the Courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other Courts. Thus in Salem Chemical Industries v. Bird & Co., AIR 1979 Madras 16, where the terms and conditions attached to the quotation contained an arbitration clause provided that: ‘any order placed against this quotation shall be deemed to be contract made in Calcutta and any dispute arising therefrom shall be settled by an Arbitrator to be jointly appointed by us’, it was held that it merely fixed the situs of the contract at Calcutta and it did not mean to confer an exclusive jurisdiction on the Court at Calcutta, and when a part of the cause of action had arisen at Salem, the Court there had also jurisdiction to entertain the suit under Section 20(c) of the Code of Civil Procedure.
From the foregoing decision it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. 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 Courts should avoid exercising jurisdiction. 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 ‘expressio unius est exclusio alterius’ expression of one is the exclusion of another may be applied. What is an appropriate case 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.”
RSDV Finance Co. P. Ltd. v. Shree Vallabh Glass Works
“We may also consider the effect of the endorsement ‘Subject to Anand jurisdiction’ made on the deposit receipt issued by the defendant. In the facts and circumstances of this case it cannot be disputed that the cause of action had arisen at Bombay as the amount of Rs. 10,00,000/- itself was paid through a cheque of the Bank at Bombay and the same was deposited in the Bank account of the defendant in the Bank of Baroda at Nariman Point, Bombay. The five post-dated cheques were also issued by the defendant being payable to the plaintiff at Bombay. The endorsement ‘Subject to Anand jurisdiction’ has been made unilaterally by the defendant while issuing the deposit receipt. The endorsement ‘Subject to Anand jurisdiction’ does not contain the ouster clause using the words like ‘alone’, ‘only’, ‘exclusive’ and the like. Thus the maxim ‘expressio unius est exclusio alterius’ cannot be applied under the facts and circumstances of the case and it cannot be held that merely because the deposit receipt contained the endorsement ‘Subject to Anand jurisdiction’ it excluded the jurisdiction of all other Courts who were otherwise competent to entertain the suit. The view taken by us finds support from a decision of this Court in A.B.C Laminart Pvt. Ltd. v. A.P Agencies, Salem, (1989) 2 SCC 163 : AIR 1989 SC 1239.”
8. From the above, it appears clear that while considering the clause related to jurisdiction in an agreement the maxim ‘expressio unius est exclusio alterius’ can be applied if the facts and circumstances of the case so warrant. It also appears clear that if the words like ‘alone’, ‘only’, ‘exclusive’ and the like are not used in the jurisdiction clause of the agreement the necessary conclusion would not be that the jurisdiction of other Courts has not been ousted. Though in RSDV case the Hon'ble Supreme Court did not, on the facts of the case, come to the conclusion that the jurisdiction of other Courts was ousted but, it does not appear to have disagreed with the law laid down in ABC Laminart case that depending on the facts and circumstances of the case the maxim ‘expressio unius est exclusio alterius’ could be applied to find out whether the jurisdiction clause excluded the jurisdiction of other Courts or not.
9. In the light of the above law laid down by the Hon'ble Supreme Court, now it is to be seen whether in the facts and circumstances of the case before me in the aforesaid O.A a view can be taken that the jurisdiction of Debts Recovery Tribunal, Jaipur was ousted by the above stated jurisdiction clause.
10. Learned Counsel for the appellant contended that the parties had by agreement ousted the jurisdiction of Courts other than Delhi Courts.
11. Learned Counsel for the respondent Bank Mr. Paras Kuhad, on the other hand, vehemently controverted the assertion of the appellant that the jurisdiction of Courts/Tribunals other than Delhi Courts had been ousted. He contended that the O.A was based on several causes of actions i.e, the promissory note executed by the appellant, cash credit facility utilized by the appellant and the Letter of Credit facility. According to him in all the aforesaid causes of action the aforesaid jurisdiction clause was not there. He further contended that in the indemnity bonds executed by defendants 2, 3, 4, 5, and 7 there was no stipulation regarding jurisdiction. He also contended that in view of the provisions of Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the aforesaid jurisdiction clause in the agreement was not binding in the present case. The said Section 34 has a provision having overriding effect of the Act on other laws and instrument having effect by virtue of any law. Sub-section (1) of Section 34 reads as follows:
“Save as provided under Sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
12. Mr. Paras Kuhad contended that the agreement between the appellant and the respondent Bank was an instrument having effect by virtue of the Contract Act and, therefore, the same was superceded by the provisions of section 34 and would thus be subservient to the provisions of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which provided that an application to recover any debt could be made to the Tribunal within the local limits of whose jurisdiction the defendant or each of defendants where there were more than one, at the time of the making the application, actually and voluntarily resided, or carried on business, or personally worked for gain; or any of the defendants, where there were more than one, at the time of making the application, actually and voluntarily resided, or carried on business, or personally worked for gain; or the cause of action, whole or in part, arose.
13. His contention was that in view of Section 34 of the said Act provisions of Section 19(1) of the said Act would override any agreement between parties giving exclusive jurisdiction to a particular Court/Tribunal. Therefore, the respondent Bank had an option to file the O.A in DRT, Jaipur.
14. In the alternative Mr. Paras Kuhad requested that in case this Appellate Tribunal came to a conclusion that only Debts Recovery Tribunal, Delhi had the exclusive jurisdiction to try this O.A, then this Appellate Tribunal may exercise its discretion under Section 17A of the said Act to keep this O.A in Debts Recovery Tribunal, Jaipur for the convenience of the parties, especially, when the appellant is running its business in the State of Rajasthan and has movable and immovable assets in the State of Rajasthan and the same being hypothecated to the respondent Bank.
15. Coming to the facts of the case the parties do not dispute that the Head Office of the respondent Bank is at Jaipur; that the Head Office of the appellant is in District Alwar in the State of Rajasthan; that the loan facilities in dispute were taken by the appellant from the respondent Bank for the distillery being run by the appellant in District Alwar; that all the properties, movable and immovable, belonging to the appellant are in the State of Rajasthan; and that the Debts Recovery Tribunal, Jaipur has the territorial jurisdiction over the territory of State of Rajasthan. It is also a fact that the appellant had, while taking credit facilities from the respondent Bank, hypothecated its plant and machinery and its movable properties including stocks, book debts - foreign, inland etc. to the respondent Bank. Defendants 2, 3, 4, and 5 had executed indemnity bonds in favour of respondent Bank for Rs. 10,50,00,000.and interest thereon. Likewise, defendant No. 7 also executed an indemnity bond in favour of the respondent Bank for Rs. 10,50,00,000/- and interest thereon. Only the three agreements entered into between the appellant and the respondent Bank contain the aforesaid jurisdiction clause and rest of the documents executed between the parties did not have any such jurisdiction clause. In the said O.A there are eight defendants and the appellant is defendant No. 1. Defendants 2 to 7 have the residential address in New Delhi and defendant No. 8 has the residential address in Bangalore. In this appeal, only the defendant No. 1 has challenged the impugned order. Accordingly, it may be presumed that defendants 2 to 8 do not dispute the impugned order.
16. I have carefully considered the respective arguments of learned Counsels for the parties and have taken into consideration the facts and circumstances of the case. In my view, the facts and circumstances of the Case as stated above do not warrant that the parties had under the above stated jurisdiction clause altogether ousted the jurisdiction of Debts Recovery Tribunal, Jaipur or any other Tribunal or Court haying jurisdiction. I agree with the contentions of learned Counsel for the respondent Bank on this point. Therefore, I am not inclined to apply the maxim ‘expressio unius est exclusio alterius’ in the present case.
17. I also agree to the contention advanced on behalf of respondent Bank that the jurisdiction clause contained in the agreement between parties stood superseded by the provisions of Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which clearly says that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force in any instrument having effect by virtue of any law other than this Act. The word ‘instrument’ includes an agreement. Black's Law Dictionary defines the word ‘instrument’ as “a formal or legal document in writing such as a contract, deed, Will, bond or lease”. Therefore even though it could have been interpreted that the jurisdiction clause in the agreements between the parties excluded the jurisdiction of Tribunals/Courts other than the Courts at Delhi, the agreements to that effect would be superceded by the provisions of section 34 of the said Act and a party to that agreement would be at liberty to make an application under Section 19 to a Tribunal as permissible under the provisions of Section 19(1) of the said Act. Learned Counsels of the parties were not at dispute that in view of the provisions of Section 19(1) an application under that Section could have been moved before the Debts Recovery Tribunal, Jaipur. Therefore, since the provisions of Section 19(1) supercede the agreements between the parties under provisions of section 34 of the said Act, the Debts Recovery Tribunal, Jaipur has even otherwise the jurisdiction to entertain the aforesaid O.A I decide accordingly.
18. In view of the above discussion, the appeal fails and is, therefore, dismissed with costs. Costs are quantified at Rs. 5,000/-: The interim stay vide order dated 10.4.2001 is hereby vacated. The parties to appear before the Debts Recovery Tribunal, Jaipur on 2.7.2001
A copy of this order be sent to Debts Recovery Tribunal, Jaipur forthwith.
Appeal dismissed with costs.