Delhi High Court
Dutt Engineering Works vs Pca Engineers Limited on 1 October, 1994
Equivalent citations: 1994 IVAD Delhi 1169, 56 (1994) DLT 426
Author: R Lahoti
Bench: R Lahoti
JUDGMENT
R.C. Lahoti, J.
1. This order disposes of the following preliminary issue framed on 22.2.1986:
Whether this Court has territorial jurisdiction to try this suit?
2. Heard the defendant's Counsel and considered the memo of arguments submitted by plaintiff's Counsel.
3. On 23.8.84, the plaintiff filed a suit for recovery of price of machinery supplied by the plaintiff. The plaintiff-firm is situated at Delhi. The defendant-Company is situated at Bombay. It has a unit at Fagwara Road, Hoshiarpur (Punjab). The plaintiff had supplied machinery to the defendant at Hoshiarpur, the price whereof is due in part and allegedly remains unpaid by the defendant.
4. The defendant has in its written statement objected to the territorial jurisdiction of this Court. It is submitted that the machines were supplied under a works contract dated 2nd December, 1974 whereunder a suit could be instituted and tried by a Competent Court only in Bombay and in no other Court. The defendant has its registered office at Bombay and transacts business from Bombay.
5. The plaintiff filed a replication to the written statement of the defendant. Para 1 of the preliminary objections raised in written statement and its reply in the replication are relevant. The execution of the works contract is not denied. What has been stated in the replication is that under the alleged works contract suit was not to be filed at Bombay. It is also submitted that in the bills raised by the plaintiff and acknowledged by the defendant, the Delhi Courts were given exclusive jurisdiction and so the suit would lie at Delhi.
6. The works contract dated 2.12.74 vide Clause 8 thereof provides as under:--
Jurisdiction : It is expressly agreed that this agreement is made in Bombay and that in suit to enforce the rights of either party under or in respect of this agreement shall be instituted and tried by a Competent Court only in Bombay and in no other Court and you (plaintiff) agree to submit to jurisdiction of such a Court.
7. The contract dated 2nd December, 1974 which contains the jurisdiction clause is in the form of a letter. It is signed on behalf of the defendant. Below thereafter it is signed on behalf of plaintiff in token of acceptance at Bombay.
8. It is clear that the contract was entered into at Bombay. The principal office of the defendant's Company is situated at Bombay. The Bombay Court is one of the Courts having jurisdiction to try the suit. The other Courts which have the jurisdiction to try the suit are at Delhi and at Hoshiarpur. There is nothing wrong in the parties in entering into an agreement conferring exclusive jurisdiction on one of the three Courts to try the suit. This position of law is well settled. (See: Hakam Singh v. Gammon (India) Ltd, ; Glove Transport Corporation v. Triveni Engineering Works, AIR 1983 (4) SCC 707 and Patel Roadways Ltd. v. Parsad Trading Company, .
9. As already stated the contract is dated 2nd December, 1974. It is a by-party contract. To vest the Delhi Court with jurisdiction the plaintiff relies on the Bill dated 6th March, 1978. The Bill bears No. 51. It consists of two pages. The first page is numbered 51 and the second page is numbered 51-A. The proforma of the second page is not the same as of the first page. On the first page, at the bottom, conditions of sale are printed. This bottom-line does not incorporate any clause about the jurisdiction of the Court to try a dispute arising between the parties. On the second page, numbered as 51A, there is again condition of sale printed at the bottom. It includes the following words--"In case of any dispute only Delhi Jurisdiction will prevail". It is difficult to understand that in the proforma of the two printed bills issued on the same day one would contain the clause as to jurisdiction while the other would not. There appears to be substance in the suggestion of the learned Counsel for the defendant that the material words appear to have been deliberately added and proforma of the Bill No. 51 A brought into existence conveniently for the purpose of facilitating institution of the suit at Delhi which suits the plaintiff. In any case the Bill page No. 51A is not signed by any one on behalf of the defendant and it cannot be said that it binds the defendant or has the effect of superceding the by-party contract dated 2nd December, 1974.
10. For the foregoing reasons, it is held that this Court does not have territorial jurisdiction to try the suit.
11. The plaint is directed to be returned to the plaintiff for presentation to proper Court.
