JUDGMENT Badar Durrez Ahmed, J.
1. This is an application filed on behalf of the defendant under Order 7 Rule 10 of the Code of Civil Procedure, 1908 read with Section 151 thereof for return of the plaint to the plaintiff on the ground that this court does not have the territorial jurisdiction to entertain and try the present suit. This prayer has been made on the basis of clause No.13 which forms part of the Purchase Orders under which the plaintiff is said to have supplied the goods to the defendant. The said clause 13 reads as under:-
13. All contracts and orders are deemed to be entered into at Faridabad and in case of any dispute or difference, the court at Faridabad alone has jurisdiction.
2. The learned counsel for the defendant / applicant has drawn my attention to various paragraphs of the plaint to indicate that upon a reading of the plaint itself and the documents filed Along with the plaint, it would become clear that this court does not have territorial jurisdiction to entertain the present suit in terms of the said clause 13. He pointed out that in paragraph 5 the plaintiff has stated that the defendant company approached the plaintiff for supply of goods (Micron Rigid PVC clear Film, etc.) and the defendant company by Purchase Order Nos. RTPL/I/DHR/097 dated 13.11.2000, RTPL/I/DHR/119 dated 20.12.2000, RTPL/I/DHR/137 dated 06.02.2001, RTPL/I/DHR/154 dated 16.03.2001, RTPL/I/DHR/155 dated 16.03.2001, RTPL/I/DHR/276 dated 22.10.2001 placed the orders with the plaintiff company for the supply of the said goods on credit basis. The purchase orders are annexed with the plaint as Annexures A-1 to A-6. Paragraph 6 of the plaint discloses that the plaintiff supplied the goods to the defendant on credit basis under various invoices / bills as detailed therein against the said purchase orders. Paragraph 6 of the plaint also contains the statement that the defendant company had duly acknowledged the receipt of the goods supplied by the plaintiff and copies of the delivery challans / invoices of the plaintiff company were also annexed to the plaint as Annexures A-7 to A-
14. Thereafter, the plaint discloses averments to the effect that the plaintiff company on various occasions called upon the defendant orally as well as by under :-
40. Change of use from one trade to another in business premises except that change of hotel/cinema will not be permitted.
16. Opposing the writ petition, stand of LandDO is that as per Clause XIV of the Agreement to Lease, ground floor had to be used as shops. Permission granted by LandDO vide letter dated 29.12.1971 was for using the ground floor as shops. It is urged that since the ground floor was used for running a bank, i.e., conducting banking business, lease was violated.
17. Averments of the petitioner pertaining to office order issued by LandDO on 24.11.1975 (Annexure P-10), response is as under :-
In reply to Para 14(ii) to (iv) of the writ petition it is stated that the use of the shop other than shop is objectionable according to the Circular No. 2/83 dated 21.1.1983 of the respondent, copy of which is enclosed herewith as Annexure R-II.
18. Annexure R-2, being the Circular No. 2/83 dated 21.1.1983 reads as under :- Dated 21.1.1983 Circular No. 2/83 Sub: Grant of lease hold right of specific use, ie., shops Extracts of notes at page 35 to 37/N of the file relating to shop at plot No. 14, Block No. 48, Diplomatic Enclave Market, file No. XV-9/48(S-14)/80 are circulated for information and future guidance. Sd/- (P.N. Gupta) Public Relations Officer 19. Extracts of the office note attached to the circular inter alia records as under :-
2. Although the use of shops or office can be treated as commercial in either case, allowing such change of use is likely to create problems. In the present case, many of the shops in Chankya Puri Market are being used as offices because it is more remunerative to let out these shops for office purposes because of the locational advantage. As this area is sparsely populated running of shops cannot be as such profitable as letting out for office purposes.
Due to the large scale conversion of shops into office premises in this area there is already a demand for second shopping center. xxxxxx
3. In the circumstances stated above, it is for consideration of the Ministry of Works and Housing as to whether the use of shops as office and vice versa should be permitted as both of them can be treated as commercial use in general terms which will create the problems mentioned in para 2.
Sd/-
(T. Devadasan) 8.11.1982 xxxxx Discussed with Director (Le. He supports the view expressed by me on pare-page and his note gives additional grounds for the same view. LandDO may kindly take action accordingly.
Sd/-
(R. Krishnaswamy) 16.11.1982
20. Lease granted in favor of the Delhi Cloth and General Mills Limited, covenants whereof bind the petitioner, require the ground floor of the building to be used as shops. It is relevant to note that no particular user, i.e., particularised business to be conducted from the shop is not mentioned. In other words, as long as the ground floor is used as a shop, there would be no misuse.
21. What is a shop A shop is a place from where business activity is carried out. This business activity need not only be sale and purchase of goods. Business activity may include rendering services. Business is an activity which involves sale and purchase of goods or services for a profit.
For example, an electrician who sits in a market and repairs heaters, geysers, toasters, vacuum cleaners and other electrical appliances uses the premises as a shop. Would one not understand that the premise is being used as a shop for providing services relating to repair of electrical goods.
22. Let me give another example. A person provides software consultancy service. He sits in a market and designs programmes for computer software, designed to meet the particular needs of the customers. The computer professional sells services. Can it not be said that he is using the premises as a shop from where he sells computer software programme designed to meet the specific requirements of his customers.
23. No doubt there is a profit element in a business relating to sale of services and a professional activity and both are based on personally specialised skill and knowledge. But what distinguishes the two is that a professional activity is regulated by a regulatory body i.e. lawyer, doctor, dentist, architect etc.
24. Banking is a business. A banker provides a wide variety of services to his clients. To my mind, use of a premise for running of a bank, banking being a business activity, would not derogate from the user of the premises as a shop. I repeat, service activity is permissible as a business activity and hence premises from where services are being rendered would be a shop. Surely, LandDO, which was informed by the petitioner when he sought permission to let out building to National and Grindlay Bank was aware that the bank would use the shops for banking business. What else could the bank use the ground floor for Indeed, learned Counsel for the respondent could not point out what other activity, other than a banking activity, would the commercial branch of a bank do in a market.
25. In Re Shields (1901) 1 Ir. R. 172 per Fitz Gibbon L.J. as of general acceptance a banker is one who traffics with the money of others for the purposes of making profit .... If he keeps open shop for the receipt of money ... he answers the description of a banker.
26. The term bank is derived from the word banko or banck which means a bench or table on which European money lenders and money changers in the past used to exhibit coins of different countries in big heaps for the purposes of changing and lending money. A bank is now regarded as an institution which attracts money on deposit for purposes of lending. Essentially a bank is a buyer and seller of money.
27. In the report published as 94 LW 203 Sundran Finance Ltd. Vs. State of Tamil Nadu, it was held :-
It is not correct to say that the services rendered by an establishment shop must be personal services rendered in the premises of the establishment shop itself in order to fall within the mischief of the word 'shop' in Notification under Employee's State Insurance Act. The petitioner renders service to its customers by advancing money to purchase motor vehicles on hire-purchase, on the security of motor vehicles themselves. Held, establishment falls within the meaning of the word 'shop' in the Notification.
28. In the report published as 1978 RLR 201 D.D.A. Vs. Bawa Raghbir Singh, a learned Single Judge of this Court held :-
To my mind a shop is a place where business is carried on. It may be a place where goods are ordinarily sold or even bought, but it does not exclude other places where business is carried on. For example, it is common to refer to a work place as a workshop or indeed there are many other type of shops where goods need not be sold. These may be used for booking agencies, pawn brokers, money-lenders and so on. Such shops are not necessarily selling goods. The word 'shop' is often used to describe places where ordinary goods are sold but also places other business is carried on. Definition in Chamber's Twentieth Century Dictionary is a building or room in which goods are sold' a place where mechanics work, or where any kind of industry is pursued; a place of employment or activity, esp. a theatre."
It is also indicated in this definition that the word is derived from Old English and the etymon is a word meaning 'treasury'. The etymological root is useful when one has to determine the true meaning of a word. A more elaborate definition is given in the Oxford English Dictionary as :- a house or building where goods are made or prepared for sale and sold.
An example is given as a banker's shop which is a bank. The original of this was the portion of a shop of a goldsmith or other tradesmen used for practicing banking. Then, it is also described as a building or room set apart for the sale of merchandise or a building or room set apart and fitted up for the carrying on of some particular kind of handiwork or mechanical industry; eg. a workshop. It is said the word is now often referred to as a portion of a building or a room in a factory, appropriated to some particular department or stage of the work carried on there. There are some other definitions which need not be referred to. In the Webster's third new International Dictionary, there is also an elaborate series of definitions which show that the word 'shop' may be used to describe a place where goods are ordinarily bought and sold and also for many other purposes including a place where business is carried on. It, therefore, appears that the word 'shop' can be understood either giving it a narrow meaning or with a larger meaning.
9. As the present is a case of a restrictive covenant I hold that it must be strictly construed and there appears to be no reason why a narrow meaning should be given. I cannot understand why the word 'shop' should be used in a narrow sense when a long-term lease was granted, if it was intended that it should be used for only a very limited type of purposes. Generally, there are similar leases all over the country, and it would bring about chaotic conditions if the user of those building was unusally restricted merely because the word 'shop' was used in the lease. For instance, in many modern cities there are shopping centres in which buildings which are described as shops are auctioned at substantial prices to the public in general, and it would be really harsh if those shops could only be used for the limited purpose for selling consumer goods and not for other business purposes. Of course, if the actual user is not at all shop-like, i.e. not as a place where activity is carried on with the public it cannot be a shop. The case I am dealing with is the case of a bank.
I have to find out whether the running of a bank is the running of a shop or is not the running of shop.
10. In my view, a bank is a place where the public freely enters for the purpose of doing what may be described as 'shopping' for money or keeping money.
People give money or take away money, if a bank is considered as a dealer in money in this sense. I think a bank can easily be described as a shop.
Therefore, the running of a bank does not appear to be an infringement of the covenant.
29. By according sanction vide letter dated 29.12.1971 (Annexure P-6) to the petitioner to let out the premises to National and Grindlays Bank, for using basement for storage, ground floor for shops and first floor for residential purposes, respondent granted the necessary permission for the bank to carry on its business from the ground floor.
30. There is another additional reason why the petitioner must succeed.
31. Office order No. 504 dated 24.11.1975 (Annexure P-10), as noted above permits change of use from one trade to another in business premises (except hotel/cinema). It is not in dispute that by prescribing that the ground floor would be used as shops it meant that the ground floor has to be used for business. Office order permits change of use from one trade to another. The office order was widely circulated and was not withdrawn. The office order occupied the field and was in full force on 14.9.1982. Circular No. 2/83 dated 21.9.1983 was not even born when order dated 14.9.1982 (Annexure P-7) was issued. The office order dated 21.1.1983 could therefore not be the source of power of the order dated 14.9.1982. Additionally, respondent has placed no material to show that Circular No. 2/83 dated 21.9.1983 was circulated for the information of the public. The office order makes an interesting reading. It circulates notes at pages 35-37/N of file No. XV-9/48(S-14)/80. I have never seen an office order which intends to regulate conduct of their affairs by the citizens as of the kind which I am noticing. Nothings on the file have to be formalised in the shape of a policy so that the same can be understood by all who read the same. By circulating for information of the officers nothings on the file of LandDO and not formalising the same as a policy and not even notifying the public, dis-entitles the respondent to rely on Circular No. 2/83 dated 21.1.1983.
32. The inevitable legal consequences is that the impugned orders dated 14.9.1982 (Annexure P-7), 31.1.1983 (Annexure P-8) and 24.9.1983 (Annexure P-11) are quashed. Writ of injunction is issued against the respondent restraining it from re-entering the leased premises or from determining the lease or from resuming possession of plot No. 13, Block 48, Diplomatic Enclave, New Delhi.
33. No costs.
November 14, 2005 (PRADEEP NANDRAJOG) dk JUDGE written correspondence for making the payment of the outstanding principal amount of Rs. 26,79,720/- Along with interest thereon in respect of the goods said to have been supplied by the plaintiff to the defendant in terms of the said purchase orders. But, the defendant failed to do so. This, in effect, is the entirety of the disputes between the plaintiff and the defendant.
3. The learned counsel for the defendant / applicant drew my attention to one of the purchase orders and in particular to Annexure-6 which is at page 7 of the documents file. The said purchase order clearly indicates the materials / goods that were required to be supplied by the plaintiff to the defendant. The said purchase order comprises of the details of the goods sought to be purchased by the defendant. The reverse of the purchase order contains the terms and conditions of the order. On the front page, it is indicated:-
Please supply the following subject to terms and conditions mentioned on the order and general terms and conditions mentioned overleaf. The printing overleaf is headed as TERMS AND CONDITIONS OF THIS ORDER and clause 13 of these terms and conditions is what has been reproduced earlier and which forms the subject matter of the present application. The learned counsel for the applicant states that both Delhi and Faridabad would normally have had jurisdiction to entertain this suit. However, because of the specific ouster contained in the said clause 13, only the courts at Faridabad would have jurisdiction to entertain this suit. In support of his submissions, he relied upon the decision of A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem: . He also relied upon the decision of a Division Bench of this court which has been reported in the form of short notes in 17 (1980) DLT 531 (S.N.) entitled as Mohanwi Corporation (P) Ltd v. D.N. Sinha and Anr. to show that the objection as regards the place of suing should be taken at the earliest possible opportunity. He also referred to a decision of the Supreme Court in the case of Harshad Chiman Lal Modi v. DLF Universal and Anr.: 2005 VIII AD SC 226 for the same proposition. In particular he referred to paragraph 30 of the said decision which reads as under:- 30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity.
The aforesaid paragraph was referred to by the learned counsel for the defendant / applicant for submitting that the question of jurisdiction should be raised at the earliest and it is because of this that he has filed this application under Order VII Rule 10 for return of the plaint as this court does not have jurisdiction and the same should be returned to the plaintiff to be instituted in the appropriate court, i.e., the courts at Faridabad.
4. The learned counsel for the plaintiff, however, contended that this application cannot be allowed at this stage and the question of jurisdiction can only be decided after evidence is led on this question. He placed strong reliance on the decision of a learned single Judge of this court in the case of Condor Power Products Pvt. Ltd v. Sandeep Rohtagi : . Referring to the said decision he pointed out that the clause contained therein was as under:-
3. All contracts and orders are deemed to be entered into at Faridabad (Haryana) and any action arising there from shall be subject to the jurisdiction Courts of Faridabad only or Arbitrators appointed by the both sides.
5. He submitted that the said decision was rendered in a revision application which was directed against the order dated 13.05.2000 whereby the defendant / revisionist's application under Order 7 Rule 10, CPC had been rejected. He contended that this decision would squarely apply to the facts of the present case and, accordingly, since the question of jurisdiction would be a subject matter of evidence, this plaint cannot be returned at this stage on the ground of lack of territorial jurisdiction. He also submitted that although in the plaint he has not made any averment with regard to the rejection of the terms and conditions contained in the purchase order, in the reply to this application he has specifically taken the point that the said terms and conditions were not agreed to by the plaintiff and, therefore, it would become a matter of trial. Consequently, according to him, this application cannot be allowed at this stage.
6. The question of conferring jurisdiction on a particular court by agreement of the parties is now no longer debatable. It is quite well-settled that jurisdiction can be conferred by agreement of the parties on a court which otherwise would have jurisdiction to entertain the matter. It is also equally well-settled that if such jurisdiction is conferred on a particular court to the exclusion of others, then such an ouster clause would not be opposed to public policy and only that court would have jurisdiction to entertain the matter. In Hakam Singh v. Gammon (India) Ltd: , the Supreme Court had clearly observed as under:-
It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.
This was further confirmed by a more recent decision in the case of A.B.C.
Laminart (supra) wherein in paragraph 18, it is stated as under:-
``Thus it is now a settled principle 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 therewithin, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clearly, unambiguous and explicit and not vague it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the Statute. Mercantile law and practice permit such agreements."
In the said decision, it was further concluded as under:-
"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.
7. A similar view was also taken by a Division Bench of this court in the case of A.K. Surekha and Ors. v. The Pradeshiya Investment Corporation of U.P. Ltd: 2003 (69) DRJ 98. I also had an occasion to consider a similar clause in Mr Mahesh Chand Gupta v. Assistant Collector, Sadar Bazar, Delhi and Anr. as well as in Apparel Export Promotion Council v. Shri Prabhati Patni, Proprietor Comfort Furnishers and Anr. in IA No. 4652/2001 and OMP 34/2000 decided on 01.12.2005. In the latter decision, I had concluded as follows:-
Upon consideration of all the aforesaid decisions, the position becomes clear that where two or more competent courts have jurisdiction to entertain a matter, if the parties by contract agree to fix jurisdiction in only one of them, then such a contract or agreement would have to be held to be valid. The consequences thereof would be that the court on which the jurisdiction was conferred by agreement would be the only court entitled to exercise such jurisdiction. It is, in fact, not so much a question of conferment of jurisdiction but one of election or exclusion of jurisdiction. Where two or more courts have jurisdiction because part of cause of action may have arisen therewithin, parties may contract to exclude jurisdiction and elect to restrict it to one or more of the courts.
8. In view of these clear principles, it becomes apparent that if the said clause 13 is to apply, then the courts at Faridabad would have jurisdiction to entertain the present suit. However, the plaintiff has strongly relied upon the decision of a learned single Judge of this court in Condor Power Products (supra). That decision, if one were to examine it in detail, would be inapplicable to the facts and circumstances which obtain in the present case. That would be apparent if one were to read paragraph 4 of the said decision which reads as under:-
4. The case of the plaintiff is that this term was never agreed upon and that on the contrary, in the Receipts issued by the plaintiff to the defendant / revisionist there is an opposing clause to the effect that only Courts at Delhi shall possess jurisdiction. There is palpable controversy on this vexed question which can be effectively and appropriately determined only after an opportunity is afforded to the parties to prove their cases.
9. Upon a reading of the aforesaid extract, it becomes clear that in the receipts issued by the plaintiff to the defendant for the supply of the goods, there was an opposing clause to the effect that only the courts at Delhi shall possess jurisdiction. Therefore, in that case, there was a controversy as to which clause would apply the clause in the purchase order restricting jurisdiction to the courts at Faridabad or the clause in the receipts restricting the jurisdiction in the courts at Delhi. It is in that context that the decision in the case of Condor Power Project (supra) must be understood. In the facts of the present case, we find that there is no such controversy in the present case. The purchase order alone contains the clause of jurisdiction which restricts the jurisdiction to the courts at Faridabad. Secondly, it is the plaintiff's averment in the plaint that the goods were supplied against the purchase order and it is suing on the basis of supply of goods which, in turn, is founded upon the purchase orders placed by the defendants. There is no contrary clause with regard to jurisdiction which is sought to be imposed by the defendants. Although the plaintiff in its reply to this application has made an attempt to show that there are some sort of disputes with regard to the clauses and conditions, in my view, that is a mere after thought as the same does not find place in the plaint and, the entire case of the plaintiff rests on the plaint. Even if all the averments made therein are taken to be correct and true, the conclusion is only one that the courts at Faridabad alone would have jurisdiction to entertain the present suit. Accordingly, the application of the defendant is allowed. The plaint is directed to be returned to the plaintiff to be filed at the appropriate court in Faridabad. This application as well as the suit stand disposed of.