Final Order 17

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SHRI PITAMBER DUTT :
DISTRICT JUDGE (COMMERCIAL COURT-01)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (COMM) No. 434/2023
Ruan Lifesciences Pvt. Ltd. …... Plaintiff
Versus
DJ Laboratories Pvt. Ltd. ..... Defendant
O R D E R :
1. . Vide this order I shall decide an application filed by
the defendant under Order VII Rule 10 of CPC Read with
Section 151 CPC for dismissal of the suit on the ground
that this Court has no territorial jurisdiction to entertain,
try and decide the present suit.
2. It is averred in the application that defendant is a
private limited company, situated at Pithampur, District
Dhar, Madhya Pradesh and working for gain from the local
jurisdiction of Pithampur, Madhya Pradesh. It is further
averred that no cause of action has ever arose within the
jurisdiction of this Court. It is further averred that purchase
order was issued by the plaintiff at their office through
online mode and representative of plaintiff came in
Madhya Pradesh for sample testing. It is further averred
that plaintiff has filed the present suit and has placed copy
of invoices at pages no. 53 to 55 by forging the same
clandestinely, the jurisdiction clause mentioned at the
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bottom of the invoice has been concealed. On that basis, it
is prayed that the application may be allowed.
3. The plaintiff has filed reply thereby controverted the
averments made in the application. It is averred that
defendant has not placed on record a single document to
prove that this Court has no territorial jurisdiction to
entertain, try and decide the present suit. It is further
averred that part cause of action for filing the present suit
arose within the territorial jurisdiction of this Court, which
has been mentioned in the plaint. It is further averred that
due to the inadvertent error committed by the office staff
of the plaintiff, the invoice could not be photocopied
properly. It is further averred that plaintiff made the
payment to the defendant from his bank account
maintained in Delhi, thus, material part of cause of action
has arisen in Delhi. It is further averred that plaintiff has
filed the present suit on the basis of Section 19 of CPC,
which clearly states that plaintiff has an option to institute
a suit either where the wrong was done within the local
limits of the jurisdiction of one Court and where the
defendant resides or carries on business, or personally
works for gain, within the local limits of the jurisdiction of
another Court. All other averments have been denied. It is
prayed that application may be dismissed.
4. I have heard Ld. Counsels for the parties, perused
the application, reply thereto as well as plaint and
documents filed by the plaintiff.
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5. The defendant has filed this application under Order
VII Rule 10 of CPC for seeking return of plaint, which
reads as under:-
Rule 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.
(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.
6. A perusal of Rule 10 of Order VII of CPC makes it
absolutely clear that if the suit has been filed before a
Court having no jurisdiction to entertain, try and decide the
said suit, then such Court may return the plaint to the
plaintiff for presenting the same before the appropriate
Court having jurisdiction to entertain, try and decide the
same.
7. It is a well settled law that while passing an order
under Order VII Rule 10 of CPC, the defence of the
defendant is not relevant and the only thing which needs to
be considered is the averments made in the plaint and the
documents annexed by the plaintiff along with it.
8. The defendant has sought dismissal of this suit under
Order VII Rule 10 of CPC, on the ground that the parties
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by their consent, have conferred the jurisdiction to District
Court Indore, Madhya Pradesh. However, even if the the
plea taken by the defendant is accepted, the suit filed by
the plaintiff cannot be dismissed and the plaint can only be
returned to the plaintiff under Order VII Rule 10 of CPC
for presenting the same before the appropriate Court
having jurisdiction.
9. The plaintiff has filed the present suit for seeking
recovery of Rs.65,54,847/- against the defendant for the
damage suffered by the plaintiff because of supply of
defective goods.
10. The plaintiff has mentioned about the jurisdiction of
this Court in para 20 of the plaint, which is reproduced
herein below:-
20. That the Defendants failed
to deliver the appropriate
goods as well as the payment
towards the loss and damages
faced by the plaintiff, the
plaintiff declares and submits
that the subject suit for
recovery of loss and damages
due to the defendants fall
within the jurisdiction of this
Hon’ble Court because of
cause of action whole or in part
has arisen at Delhi and
transaction between the parties
had taken place at Delhi and
the plaintiff works for gain
within the local limits of this
Hon’ble Court and this
Hon’ble Court has jurisdiction
to entertain, try and adjudicate
the present suit.
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11. Thus, as per the plaintiff, the cause of action, wholly
or partly has arisen within the territorial jurisdiction of this
Court.
12. The plaintiff has also averred that they are also
residing within the territorial jurisdiction of this Court. On
that basis, plaintiff has claimed that this Court has
territorial jurisdiction to entertain, try and decide the
present suit.
13. The plaintiff has stated in the reply to this
application that the jurisdiction of the present suit to be
determined as per Section 19 of CPC and not as per
Section 20 of CPC.
14.
Section 19 and Section 20 of CPC are reproduced as
under:-
19. Suits for compensation for
wrongs to person or movables
Where a suit is for
compensation for wrong done
to the person or to movable
property, if the wrong was
done within the local limits of
the jurisdiction of one court
and defendant resides, or
carries on business, or
personally works for gain,
within the local limits of
jurisdiction of another Court,
the suit may be instituted at
the option of the plaintiff in
either of the said Courts.
20. Other suits to be
instituted where defendants
reside or cause of action
arises
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Subject to the limitations
aforesaid, 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
(3) the cause of action,
wholly or in part, arises.
15. A perusal of Section 19 of CPC, makes it absolutely
clear that a suit for compensation of the wrong, done to a
person or movable property, can be filed within the local
jurisdiction of a Court, within whose jurisdiction either the
wrong was caused or where the defendant resides or
carries out business, or personally work for gain, that
option is available with the plaintiff.
16. Whereas, a perusal of Section 20 of CPC makes it
absolutely clear that a suit for recovery, against the
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defendant can be filed before a Court in whose jurisdiction
the defendant, or where more than one defendant, each of
the defendants, actually resides or carries on business or
personally work for gain at the time of commencement of
the suit or that where the cause of action wholly or partly
arose.
17. The plea of the plaintiff that the jurisdiction of the
Court to be determined as per Section 19 of CPC is
however not sustainable for the simple reason that the
plaintiff had placed purchase order to defendant for
purchasing 2,25,000 packets of Levofloxacin Infusion I.P.
500 mg 100 ml, worth Rs.65,54,847/-, vide purchase ordes
dated 18.07.2020, which were supplied by the defendant to
the plaintiff and plaintiff had exported the same abroad,
where on testing, some of the goods were found to be of
defective quality.
18. The present suit has been filed by the plaintiff for
seeking recovery of amount of goods purchased by the
plaintiff from the defendant as well as for the damages
suffered by the plaintiff, due to the act of the defendant.
Thus, the jurisdiction of the Court shall be determined as
per Section 20 of CPC and not as per Section 19 of CPC.
19. The plaintiff has claimed that the cause of action,
wholly or partly, has arose within the jurisdiction of this
Court and plaintiff also resides within the territorial
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jurisdiction of this Court and on that basis, plaintiff has
filed the present suit before this Court.
20. As per Section 20 of CPC, a suit for recovery against
the defendant can be filed, before a Court, within whose
jurisdiction defendant, or where more than one defendant,
each of the defendants, actually resides or carries on
business or personally work for gain at the time of
commencement of the suit or that where the cause of
action wholly or partly arose.
21. In the instant case, plaintiff had placed order to the
defendant for supply of 2,25,000/- packets of Levofloxacin
Infusion I.P. 500 mg, vide purchase order dated 18.07.2020
through online mode at the place of the defendant at
Madhya Pradesh. Pursuant to the said purchase orders, the
defendant supplied the goods to the plaintiff, vide invoices
dated 05.08.2020, 06.08.2020 and 15.10.2020.
22. The plaintiff, while filing this suit, has not filed
complete printout of the invoice. The portion on which,
stipulation regarding conferment of jurisdiction, was
typed, is missing. Thereafter, pursuant to the order passed
by this Court, plaintiff has filed original invoices no.
ISS-41, ISS-42 and ISS-64 dated 05.08.2020, 06.08.2020
and 15.10.2020 respectively, which mention at the bottom
“Subject to Indore Jurisdiction”.
23. The said invoices also having stipulation that
plaintiff was to pay amount in the ICICI Bank Ltd, Usha
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Ganj Branch, Indore, Madhya Pradesh. The plaintiff made
the payment to the defendant, pursuant to said invoice, as
per the stipulation mentioned in the invoice, which is not
in dispute.
24. The documents placed on record by the plaintiff
along with the plaint shows that the purchase order was
placed by the plaintiff to the defendant at Madhya Pradesh.
The invoice, which was issued by the defendant for
supplying the goods, is having stipulation, qua conferring
jurisdiction to District Court Indore, Madhya Pradesh. The
payment of goods were made by the plaintiff in the bank
account of the defendant i.e. ICICI Bank at Indore,
Madhya Pradesh Branch.
25. This Court vide order dated 17.03.2025, directed the
plaintiff to file an affidavit regarding the place of supply of
goods. Pursuant to which, an affidavit was filed by the AR
of plaintiff, stating in it that
“30,000/- packs were
delivered to the plaintiff on 01.08.2020 in New Delhi.
26. The defendant is neither residing nor carrying on
business for gain within the territorial jurisdiction of this
Court. The purchase order was placed at the place of
defendant through online mode, which is also beyond the
jurisdiction of this Court. The plaintiff made payment of
invoice to the defendant in their bank account with ICICI
Bank, Usha Ganj Branch, Madhya Pradesh, which is also
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beyond the territorial jurisdiction of this Court. The goods
were also supplied by the defendant to the plaintiff at New
Delhi, from where goods were exported. Thus, part cause
of action has accrued within the territorial jurisdiction of
this Court as well.
27. Ld. Counsel for the defendant pointed out that vide
invoice dated 20.08.2020, exclusive jurisdiction for
redressal of any dispute, if any, was conferred to District
Courts, Indore. Thus, Court of Delhi has no territorial
jurisdiction to entertain, try and decide the present suit.
28. Ld. Counsel for the plaintiff however, has contended
that the defendant unilaterally made the said stipulation in
the invoice and same was not with the consent of the
plaintiff. He further contended that defendant, unilaterally
cannot oust the jurisdiction of the Court, which otherwise
has jurisdiction to try the suit.
29. Ld. Counsel for the plaintiff though contended that
the defendant has unilaterally inserted the clause
“Subject
to Indore Jurisdiction” in the invoice
. However, fact
remains that after receiving the goods through invoice no.
ISS-44 dated 20.08.2020, which contain a clause of
conferring jurisdiction to Indore Court, the plaintiff did not
raise any objection qua the same.
30. The plaintiff even released the payment into the
bank account of defendant, details of which are mentioned
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in the invoice as ICICI bank, Usha Ganj Branch, Indore,
Madhya Pradesh.
31. It is also relevant that before filing the present suit,
plaintiff made various complaints against the defendant
and also sent a legal notice dated 17.03.2023. However,
neither in the complaint, nor in the legal notice, the
plaintiff has made even a vague reference that they have
not accepted the clause of conferring the jurisdiction to the
Indore Court as mentioned in the invoice dated
20.08.2020.
32. The Hon’ble Supreme Court of India in
“Globe
Transport Corporation Vs Triveni Engineering
Works & Anr.” , reported as 1983 (4) SCC 707, has held
that :-
“It is now settled law that it
is not competent to the
parties by agreement to
invest a court with
jurisdiction which it does not
otherwise possess but if there
are more than one forums
where a suit can be filed, it is
open to the parties to select a
particular forum and exclude
the other forums in regard to
claims which one party may
have against the other under
a contract. Clause 17 of the
Contract of Carriage could
therefore, validly confer
exclusive jurisdiction on the
Court in Jaipur City only if it
could be shown that the
Court in Jaipur City would
have jurisdiction to entertain
the suit filed by the
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respondents against the
appellant. It is true and there
we agree With the
respondents that part of the
cause of action in the present
case arose in the City of
Jaipur, and therefore, the
jurisdiction of the Court in
Jaipur City could not be
invoked on the ground that
the cause of action or a part
thereof has arisen in Jaipur.
But the Jurisdiction of a court
whether under Section 19 or
Section 20 of the CPC can
also be invoked on the
ground that the defendant
resides or carries on business
or personally works for gain
within the jurisdiction of the
court and here it could not be
disputed that the appellant
does carry on business in the
City of Jaipur and if that be
so, there can be no doubt that
the Court in Jaipur City
would have jurisdiction to
entertain the suit filed by the
respondents against the
appellant. In that event,
Clause 17 of the Contract of
Carriage conferring ex-
elusive jurisdiction on the
Court in Jaipur City and
excluding the jurisdiction of
other courts would be valid
and effective.
4. We are therefore, of the
view that the High Court was
in error in taking the view
that the jurisdiction of the
Court of Civil ; Judge,
Allahabad was not excluded
by Clause 17 of the Contract
of Carriage and that Court
had jurisdiction to entertain
that suit. We accordingly
allow the appeal, set aside the
judgment of the High Court
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as also the order passed by
the Civil Jude. Allahabad and
taking view the Court of the
Civil Judge, Allahabad has
no jurisdiction to entertain
the suit, we direct that the
plaint may be returned to the
respondents for presentation
to the appropriate court in
Jaipur City.
33. The said proposition was reiterated by the Hon’ble
Supreme Court of India in
“New Moga Transport Co.
Through its proprietor Krishan Lal Jhanwar Vs United
India Insurance Co. Ltd. & Others.”, reported as 2004 (4)
SCC 677. The relevant paras of the said judgment are
reproduced herein below:-
“By a long series of decisions
it has been held that where
two Courts or more have
under the CPC jurisdiction to
try a suit or proceeding an
agreement between the
parties that the dispute
between them shall be tried
in any one of such Courts is
not contrary to public policy
and in no way contravenes
Section 28 of the Indian
Contract Act, 1872.
Therefore, if on the facts of a
given case more than one
Court has jurisdiction, parties
by their consent may limit
the jurisdiction to one of the
two Courts. But by an
agreement parties cannot
confer jurisdiction to a Court
which otherwise does not
have jurisdiction to deal with
a matter.
As was observed by this
Court in Shriram's case
(supra) referring to Hakam
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Singh's case (supra) an
agreement
	affecting
jurisdiction of Courts is not
invalid. It is open to the
parties to choose any one of
the two competent Courts to
decide the disputes. Once the
parties bound themselves as
such it is not open for them
to choose a different
jurisdiction.
The intention of the parties
can be culled out from use of
the expressions "only",
"alone", "exclusive" and the
like with reference to a
particular Court. But the
intention to exclude a Court's
jurisdiction should be
reflected in clear,
unambiguous, explicit and
specific terms. In such case
only the accepted notions of
contract would bind the
parties.
34. The Hon’ble Supreme Court of India in
“Rajasthan
State Electricity Board Vs M/s. Universal Petrol
Chemicals Ltd.” , reported as 2009 (3) SCC 107 has held
that:-
“17. There are number of
decisions of this Court
wherein it was held that
where there may be two or
more competent courts which
can entertain a suit
consequent upon a part of the
cause of action having arisen
therein, if the parties to the
contract agree to vest
jurisdiction in one such court
to try the dispute which
might arise as between
themselves, such agreement
would be valid and binding.
In A.B.C. Laminart (P) Ltd.
v. A.P. Agencies [(1989) 2
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SCC 163], this Court stated
thus; "21. From the foregoing
decisions 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."
20. In Hanil Era Textiles Ltd.
v. Puromatic Filters (P) Ltd.
[(2004) 4 SCC 671], it was
held by this Court that where
two or more courts have
jurisdiction under the Code,
it is permissible to have an
agreement between the
parties restricting the place of
suing to any one of them and
if such restriction is placed in
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the agreement, the same
cannot be said to be contrary
to public policy and does not
contravene Section 28 of the
Contract Act. It was however,
made clear that such
restriction cannot be made
and the parties cannot by
agreement confer jurisdiction
on a court which otherwise it
does not possess under the
Code. This Court also
considered the scope of
Section 20 of the Code in the
said case and by referring to
the said provision it was held
that when ouster clause is
clear, unambiguous and
specific, accepted notions of
contract would bind parties
and unless absence of ad
idem can be shown courts
should avoid exercising
jurisdiction. While arriving at
the said finding this Court
followed the ratio laid down
in A.B.C. Laminart (P) Ltd.
(supra).
22. In the light of the
aforesaid facts of the present
case, the ratio of all the
aforesaid decisions which are
referred to hereinbefore
would squarely govern and
apply to the present case also.
There is indeed an ouster
clause used in the aforesaid
stipulations stating that the
courts at Jaipur alone would
have jurisdiction to try and
decide the said proceedings
which could be initiated for
adjudication and deciding the
disputes arising between the
parties with or in relation to
the aforesaid agreements
through the process of
arbitration. In other words,
even though otherwise the
Courts at Calcutta would
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have territorial jurisdiction to
try and decide such disputes,
but in view of the ouster
clause it is only the courts at
Jaipur which would have
jurisdiction to entertain such
proceeding.
29. In view of the aforesaid
findings and conclusions
arrived at by us holding that
it is only the Court at Jaipur
which will have jurisdiction
to try and decide the
arbitration proceedings
between the parties and also
entertain a petition of the
aforesaid nature i.e. Section
20 of the Act, we set aside
and quash the judgment and
order of the Division Bench
of the Calcutta High Court.
Both the appeals are allowed
to the aforesaid extent. The
Registry of the Calcutta High
Court is directed to transfer
the petition filed by the
respondent under Section 20
of the Act alongwith all the
records to the District Judge,
Jaipur.
35. The full bench of Hon’ble Supreme Court of India in
“Swastik Gases P. Ltd. Vs Indian Oil Corporation Ltd.
2013 (9) SCC 32 has held that:-
“The question is, whether
parties by virtue of clause 18
of the agreement have
agreed to exclude the
jurisdiction of the courts at
Jaipur or, in other words,
whether in view of clause 18
of the agreement, the
jurisdiction of Chief Justice
of the Rajasthan High Court
has been excluded. For
answer to the above
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question, we have to see the
effect of the jurisdiction
clause in the agreement
which provides that the
agreement shall be subject
to jurisdiction of the courts
at Kolkata. It is a fact that
whilst providing for
jurisdiction clause in the
agreement the words like
‘alone’, ‘only’, ‘exclusive’
or ‘exclusive jurisdiction’
have not been used but this,
in our view, is not decisive
and does not make any
material difference. The
intention of the parties - by
having clause 18 in the
agreement – is clear and
unambiguous that the courts
at Kolkata shall have
jurisdiction which means
that the courts at Kolkata
alone shall have jurisdiction.
It is so because for
construction of jurisdiction
clause, like clause 18 in the
agreement, the maxim
expressio unius est exclusio
alterius comes into play as
there is nothing to indicate
to the contrary. This legal
maxim means that
expression of one is the
exclusion of another. By
making a provision that the
agreement is subject to the
jurisdiction of the courts at
Kolkata, the parties have
impliedly excluded the
jurisdiction of other courts.
Where the contract specifies
the jurisdiction of the courts
at a particular place and
such courts have jurisdiction
to deal with the matter, we
think that an inference may
be drawn that parties
intended to exclude all other
courts. A clause like this is
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not hit by Section 23 of the
Contract Act at all. Such
clause is neither forbidden
by law nor it is against the
public policy. It does not
offend Section 28 of the
Contract Act in any manner.
The above legal propositions
laid down by the Hon’ble
Supreme Court of India,
makes it absolutely clear
that if more than one Court
are having jurisdiction to
entertain, try and decide a
suit, then the parties can, by
their consent, confer
exclusive jurisdiction to one
Court and oust the
jurisdiction of another
Court, within whose
jurisdiction part cause of
action has accrued and such
contract is not against the
public policy.”
36. The issue as involved in the present case, came up
for consideration before the Hon’ble Delhi High Court in
“M/s Balaji Plasto Industries & Anr Vs M/s pendo Plast
Pvt. Ltd.”, CM(M) 766/2022, date of decision 23.04.2024.
Para 18, 20 to 27 are relevant, which are reproduced as
under:-
18. Pertinently, all the
invoices being relied upon by
the respondent form the basis
of this suit. In the voices, the
printed term is mentioned as
“all disputes connected with
this invoice are subject to
Bahadurgarh jurisdiction”.
Additionally, the invoices
further provide instructions
for payment as “Yes Bank
Limited, Bahadurgarh”
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20. The position of law has
been settled that where two
or more Courts have
jurisdiction under CPC to try
a suit, an agreement between
the parties that the dispute
between them shall be tried
in any one of the Courts is
not contrary to public policy.
21. Through a cojoint reading
of Section 20 of CPC and
Section 23 & 28 of Contract
Act, 1872, there is a scope
for partial restriction by
limiting the parties to take
recourse to one forum.
Exclusion of jurisdiction
clauses occupy this space
between absolute restraint
and convenience based
forum.
22. It is not disputed that in
the present case, the Courts at
Bahadurgarh as well as in
Delhi have jurisdiction to try
the present suit as a part of
cause of action has arisen
within the jurisdiction of the
Courts at both the places. The
record reveals that the
purchase orders were issued
by the petitioners to the
respondent at its address “94,
HSIIDC,
	Sector-16,
Bahadurgarh,
	Haryana
125407.” The invoices were
issued by the respondent from
the aforementioned address in
favour of the petitioners. The
goods were manufactured in
Bahadurgarh and supplied
from there to Rudrapur,
Uttrakhand by the respondent.
As mentioned in the emails
exchanged between the
parties, the respondent was
communicating from its
address at Bahadurgarh,
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Haryana. Moreso, the
payments were to be made in
the „Yes Bank Limited at	‟
Bahadurgarh, Haryana.
23. On the other hand, the
cause of action also arises
within the territorial limits of
Delhi Courts as the
respondent company is
registered under RoCDelhi
with
	CIN:
U25203DL2013PTC262012
and petitioner no.1 which is a
proprietorship firm being
operated, controlled and
managed by petitioner no.2 is
having their principal office
at 8/55, Ramesh Nagar, New
Delhi110015. The respondent
is having its registered office
at B-04/405, Sector-8
Rajpura Kalan, Rohini, New
Delhi-110085. Undisputedly,
the petitioners worked for
gain at Delhi and various
correspondences took place
in Delhi.
24. In Hakam Singh v.
Gammon (India) Ltd.: 1971
SCR (3) 314, the contractual
validity of choice of forum
clauses was discussed. In that
case, the terms and
conditions were stipulated in
a written tender between the
parties which provided that
the Courts of Bombay alone
will have jurisdiction to
adjudicate upon a dispute
having been arisen between
the parties. The Trial Court at
Varanasi held that the entire
cause of action had arisen in
Varanasi and the parties
could not by agreement
confer jurisdiction on the
Courts of Bombay. However,
the Hon ble Supreme Court	‟
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observed that when two
Courts have the jurisdiction
to entertain a dispute, a
choice of one by agreement,
would not amount to restraint
of legal proceedings or
violate public policy under
Sections 28 and 23 of the
Contract Act. Furtherthe
Hon ble Supreme Court	‟
clarified that the parties
cannot by way of an
agreement confer jurisdiction
on a Court that would
otherwise not have
jurisdiction in law to
adjudicate the dispute. This
position has been
consistently upheld in
various Supreme Court
decisions.
25. In A.B.C. Laminart Pvt.
Ltd. & Anr vs. A.P. Agencies,
Salem: 1989 SCR (2) 1, the
contract specified that the
Courts of Kaira will have
jurisdiction to try the
disputes. However, the
plaintiff instituted a suit for
recovery of money in the
Court at Salem. The Hon ble	‟
Supreme Court held as
under:-
“21. From the foregoing
decisions 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
CS (Comm) No. 434/2023
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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.”
26. In the case of M/S Swastik
Gases Pvt. Ltd v. Indian Oil
Corp. Ltd.: (2013) 9 SCC
32], the Hon ble Supreme	‟
Court observed that:-
“32. For answer to the above
question, we have to see the
effect of the jurisdiction
clause in the agreement
which provides that the
agreement shall be subject to
jurisdiction of the courts at
Kolkata. It is a fact that
whilst providing for
jurisdiction clause in the
agreement the words like
“alone”, “only”, “exclusive”
or “exclusive jurisdiction”
have not been used but this,
in our view, is not decisive
and does not make any
material difference. The
intention of the parties—by
having Clause 18 in the
agreement—is clear and
unambiguous that the courts
at Kolkata shall have
jurisdiction which means
that the courts at Kolkata
alone shall have jurisdiction.
It is so because for
construction of jurisdiction
clause, like Clause 18 in the
agreement, the maxim
expressio unius est exclusio
alterius comes into play as
there is nothing to indicate
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to the contrary. This legal
maxim means that
expression of one is the
exclusion of another. By
making a provision that the
agreement is subject to the
jurisdiction of the courts at
Kolkata, the parties have
impliedly excluded the
jurisdiction of other courts.
Where the contract specifies
the jurisdiction of the courts
at a particular place and such
courts have jurisdiction to
deal with the matter, we
think that an inference may
be drawn that parties
intended to exclude all other
courts. A clause like this is
not hit by Section 23 of the
Contract Act at all. Such
clause is neither forbidden
by law nor it is against the
public policy. It does not
offend Section 28 of the
Contract Act in any
manner.”
27. In the view of aforesaid
discussion, the facts of the
case at hand have to be
looked into.
28. Admittedly, a part of
cause of action, in the present
case, arises within the
territorial jurisdiction of both
the Courts i.e. at
Bahadurgarh and Delhi. The
intention of the parties can be
inferred from use of the
exclusion of jurisdiction
clause as well as the places
where the payments were to
be received. From the printed
invoices, it is clear that the
respondent hasexhibited its
intention that in case of any
dispute with respect to the
invoices raised, the
jurisdiction of Courts at
Bahadurgarh, Haryana, is to
be invoked. Furthermore, as
specifically mentioned on the
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invoices, the payments of the
said invoices were to be
received at Bahadurgarh,
Haryana.”
37. The above legal proposition laid down by the
Hon’ble Supreme Court of India and Hon’ble High Court,
makes it absolutely clear that if more than one Court has
jurisdiction to entertain, try and decide a suit, then the
parties can, by their consent, can confer exclusive
jurisdiction to one Court and oust the jurisdiction of
another Court, within whose jurisdiction part cause of
action has accrued and such contract is not against the
public policy.
38. In the instant case, the goods were purchased on the
basis of purchase order dated 18.07.2020, issued by the
plaintiff from Delhi to defendant at Pithampur, Dhar,
Madhya Pradesh. The defendant was having their business
and working for gain at Pithampur, Dhar, Madhya Pradesh,
the payment for supply of goods were made by the
plaintiff to the defendant in the bank account of defendant
at ICICI Bank, Indore, Madhya Pradesh.
39. The defendant supplied the goods to the plaintiff in
Delhi, from where plaintiff exported the same to his
foreign buyer, therefore, part cause of action has accrued
in Delhi and part cause of action has accrued within the
territorial jurisdiction of District Court Indore, Madhya
Pradesh, where defendant resides and carries on business
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for gain.
40. The invoices dated 05.08.2020, 06.08.2020 and
15.10.2020, vide which goods were supplied to the
plaintiff are containing a specific clause, vide which, the
jurisdiction of other Courts were ousted and exclusive
jurisdiction was conferred to District Court Indore,
Madhya Pradesh. Meaning thereby that the jurisdiction of
other Court i.e. District Court Delhi, within whose
jurisdiction, part cause of action had arisen, has been
ousted and the exclusive jurisdiction was conferred to
District Court, Indore, Madhya Pradesh.
41. The defendant resides and carries out business for
gain within the territorial jurisdiction of District Court
Indore, Madhya Pradesh, where purchase order was placed
by the plaintiff; The plaintiff made payment for supply of
goods into the bank account of defendant, which is situated
within the territorial jurisdiction of District Court, Indore,
Madhya Pradesh.
42. The part cause of action has also accrued in Delhi,
where defendant supplied goods to plaintiff, from where
goods were exported by the plaintiff to his foreign
customers. Thus, both Delhi and Indore Courts are having
jurisdiction to entertain, try and decide the present suit.
43. The defendant has conferred exclusive jurisdiction
for deciding the dispute, if any, between the parties to
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District Court Indore, Madhya Pradesh, as stipulated in the
invoices, vide which, goods were supplied, which has not
been objected by the plaintiff rather impliedly accepted by
his conduct as he has not raised any objection regarding
conferment of jurisdiction to District Court Indore,
Madhya Pradesh, which otherwise has territorial
jurisdiction to entertain, try and decide the present suit.
44. The stipulation in the invoice, vide which, exclusive
jurisdiction was conferred to District Court, Indore,
Madhya Pradesh and jurisdiction of other Court was
ousted, is not against the law and as per public policy as
held by the Hon’ble Supreme Court of India in
“Hakam
Singh Vs Gammon”, reported as AIR 1971 SC 740.
45. In view of the above facts and circumstances, the
application filed by the defendant under Order VII Rule 10
of CPC is allowed. The plaint is ordered to be returned to
the plaintiff for presenting the same before District Courts
Indore, Madhya Pradesh, upon whom exclusive
jurisdiction has been conferred by the parties to entertain,
try and decide the present suit, on filing certified copy of
the same.
File be consigned to Record Room after due
compliance.
Announced in the Open Court on
08th April, 2025
(PITAMBER DUTT)
District Judge (Commercial Court-01)
East District Karkardooma Courts, Delhi
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