New India Assurance Co. And Anr. vs Delhi Ahmedabad Roadways
1996 Latest Caselaw 784 Del

JUDGMENT

M.K. Sharma, J.

1. The present suit has been instituted by the plaintiffs against the defendant for recovery of Rs. 1,95,680 /-.

2. It is stated in the plaint that the defendant is the common carrier of goods, who carries on the business of transportation of goods of its customers from one place to another for hire and reward. Several truck load consignments containing car components were consigned through the defendant from Kandla to Gurgaon and the said consignments were contracted to be delivered to the plaintiff No. 2 at their works which is located at Gurgaon on door delivery basis. The aforesaid suit consignments were tendered to the defendant for carriage at Kandla and were delivered at the works of the plaintiff No. 2 at Gurgaon. It is alleged that some of the packages out of each of the suit consignments were delivered by the defendant in badly damaged condition, and accordingly there was a loss to the plaintiffs which is sought to be recovered through the present suit.

3. The defendant filed a written statement in the suit contending, inter alia, that the subject matter of the dispute is required to be referred to arbitration in view of the arbitration agreement between the parties. The defendant further took up a preliminary objection with regard to territorial jurisdiction for trying and deciding the suit by contending that this Court has no territorial jurisdiction to try and decide the suit was it as specifically agreed under Clause 19 of the Agreement entered into between the parties dated 24.8.1984 which provides as under:

Clause 19: Jurisdiction This Court of Gurgaon shall also have jurisdiction to decide any dispute arising out of or in connection with the contract.

4. Since the defendant has raised a preliminary objection with regard to jurisdiction of this Court, this Court decided to take up the said issue as a preliminary issue and accordingly, I have heard the Counsel appearing for the plaintiffs as also the defendant only in respect of the issue with regard to want of jurisdiction. The Counsel for the parties did not address me on the issue of the other preliminary objection raised in the written statement concerning the arbitration clause in the Agreement and accordingly, for the present, I am required to consider the issue with regard to want of territorial jurisdiction of this Court to try and decide the present suit.

5. The Counsel for the plaintiffs submitted that the defendant for all purposes resides at Delhi and the insurance policy was also issued at Delhi. The damage certificate was also issued in favour of the plaintiffs by the defendant at Delhi and accordingly, the Delhi Court shall have a jurisdiction to try the present suit.

6. The Counsel for the defendant, on the other hand, relied upon the provisions of Clause 19 of the Agreement entered into between the plaintiff No. 2 and the defendant on 24.8.1984 and submitted that in view of the aforesaid clause of the agreement, this Court will have no jurisdiction to try and decide the present suit and that the Court of Gurgaon will only have jurisdiction to decide the dispute arising out of or in connection with tine contract entered into between the plaintiff No. 2 and the defendant. The learned Counsel for the defendant in support of his submission relied upon a decision of the Supreme Court in Globe Transport Corporation v. Triveni Engineering Works and Anr. reported in 1983 (4) Supreme Court cases.

7. It is an admitted position between the parties that there exists a transport contract entered into between the plaintiff No. 2 and the defendant in pursuance of which, the plaintiff No. 2 sent few truck load consignments containing car components through the defendant from Kandla to Gurgaon. The said contract contains a clause in respect of jurisdiction laying down that the Court of Gurgaon shall alone have the jurisdiction to decide any dispute arising out of or in connection with the contract. The present dispute raised in this suit is apparently based on, or arising out of or in connection with the contract agreement entered in to between the parties. Consequently, in the present transaction, the cause of action has arisen in more than one place. It is held in the case of A.B.C. Laminate Pvt. ltd. and Anr. v. A,P. Agencies, Salem reported in A.I.R. 1989 S.C 1239, 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 there within 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.

8. In the present suit also, on the aforesaid facts, the cause of action or part of the cause of action has arisen in more than one place, but the parties to the con tract have decided amongst themselves that any dispute which might arise between themselves, the jurisdiction of the Court to decide the said dispute will be the Court at Gurgaon.

9. On consideration of the facts and circumstances of the present case, in my opinion, the decision in Globe Transport Corporation (supra), is squarely applicable. The Supreme Court in the aforementioned case 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.

10. On a closer look of the aforesaid decision rendered by the Supreme Court, I find that the wordings of Clause 19 of the Contract Agreement entered into between the plaintiff No. 2 and the defendant is almost perimeter with Clause 17 of the Contract of Carriage involved in the case decided by the Supreme Court.

11. It is true that the defendant resides or carries on business within the jurisdiction of this Court. However, in view of Clause 19 of the Transport Contract conferring exclusive jurisdiction on the Court of Gurgaon and excluding the jurisdiction of other Courts would be valid and effective.

12. I am, therefore, of the view that this Court has no jurisdiction to entertain the suit and the Court of Gurgaon shall have jurisdiction to entertain the present suit. Accordingly, I direct that the plaint may be returned to the plaintiffs for presentation of the same to the appropriate Court in Gurgaon.

13. The learned Counsel for the plaintiffs also submitted that as was done in the case of Globe Transport Corporation (supra), this Court may hold that the time spent by the plaintiffs in prosecuting the present suit in this Court be ordered to be excluded in computing the period of limitation for filing the suit in the appropriate Court in Gurgaon.

14. As I have held that this Court has no jurisdiction to try and decide this dispute, in my considered opinion, this Court shall also have no jurisdiction to make arty direction in that respect as sought for by the plaintiffs. It is true that in the case of Globe Transport Corporation (supra), the Supreme Court has ordered that:

Since the respondents have in good faith pursued their claim before the Court of Civil Judge, Allahabad which was found to have no jurisdiction by reason of Clause 17 of the Contract of Carriage the period during which they prosecuted their suit before the Court of Civil Judge, Allahabad, would be liable to be excluded in computing the period of limitation for filing the suit in the appropriate Court in Jaipur City.

15. I have no doubt in my mind that as and when the plaintiffs present their plaint in the appropriate Court the said Court would consider and appreciate the aforesaid legal proposition laid down by the Supreme Court in proper and true perspective. The said suit accordingly stands disposed of. Parties shall, however, bear their own costs.