Manipur High Court
M/S Simplex Projects Ltd. Through ... vs National Sports University (Nsu) on 27 July, 2022
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 428 of 2022
M/S Simplex Projects Ltd. through its Director 19, Nellie
Sengupta Sarani 3rd Floor, Kolkata- 70087.
... Petitioner.
-Versus -
1. National Sports University (NSU), thorough its Vice
chancellor, Office at 2nd Floor, Olympic Bhawan Khuman
Lampak.
2. M/S NBCC (India) Ltd., through its Managing Director,
Office at NBCC Bhawan, Lodhi Road, New Delhi
......Respondents
BEFORE
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the petitioner : Mr. S.D Singh, Advocate
For the : Mr. M.Devananda, Advocate
respondents
Date of Hearing : 07-07-2022
Date of Order : 27-07-2022
ORDER
[1] Heard Mr. S. D Singh, learned counsel appearing for the
petitioner and Mr. M. Devananda, learned counsel appearing for the
respondents.
WP(C) No. 428 of 2022 Page 1
[2] The fact of the present case in a nutshell is that M/S
Hindustan Steel Works Construction Ltd., a subsidiary of the NBCC
(India) Ltd., while working as Project Manager Consultant for the Ministry
of Youth Affairs and Sports published a notice inviting e-tender dated 28-
11-2018 for construction of buildings including allied external
development works for National Sports University (Package 2 - A) at
Imphal, Manipur. The value of the said tender was fixed as Rs.
96,40,07,726/- and the period for completion of the contract work was
fixed as 15 (fifteen) months and the date of commencement of the period
was to be reckoned from the 10th day after issuance of the letter of
award.
[3] The said contract work was awarded to the petitioner viz,
M.S Simplex Project Ltd, and the said contract work was to be executed
under the terms and conditions of the contract drawn up between the
parties. When the said contract work could not be completed in time, the
petitioner made a request to the employer for extension of time for
completion of the said contract work and the employer granted
provisional extension of time for completion of the said contract work
which was up to 31-12-2021. Subsequently, when the petitioner could
not complete the execution of the said contract work in time, the period
for completion of the said contract work was extended from time to time
on the request made by the petitioner and ultimately, when the petitioner
failed to complete the execution of the said contract work even during
the extended time, the respondents declined to entertain the request of
WP(C) No. 428 of 2022 Page 2
the petitioner for granting further extension of time and informed the
petitioner that they would terminate the contract and invoke the bank
guarantee. Having been aggrieved, the petitioner filed the present writ
petition praying for granting the following reliefs:
" a. Issue a Rule-in-Nisi;
b. Call for record of the case, hear the parties and make the
Rule absolute;
c. Issue the writ of mandamus or any other writ/direction/order
of similar nature whereby Respondents are commanded to take
practical view of the volume of work and the time which are
required for execution of the entire works by constituting an
independent Committee and extend the period accordingly
enabling the Petitioner to execute the works, even by opening
the Escrow Account with full monitoring by the Respondents qua
the funds to be disbursed to the agencies who are working at the
site and further adhere to their own minutes of meeting and
decisions for extension of time, whereby they have committed to
extend the period for one year from the date of supply of the
final drawings;
d. Issue the writ of prohibition or any other writ/direction/order
of similar nature whereby restraining the Respondents herein
from invoking and encashing the Bank Guarantees i.e., Bank
Guarantee Nos. INBG07921000072 for a sum of Rs.
5,30,19.600.00, INBG07921000073 for a sum of Rs.
1,25,00,000.00, INBG07921000074 for a sum of Rs. 1, 25,
00,000.00, INBG07921000075 for a sum of Rs. 1,25,00,000.00
and INBG07921000076 for a sum of Rs. 1,06,99,632.00 Band
Guarantee No. INBG07922000069 dated 22-03-2022 for a sum of
Rs. 88,36,600.00 valid up to 21-03-2022, Bank Guarantee No.
INBG07922000071 dated 22-03-2022 for a sum of Rs.
88,36,600.00 valid up to 21-03-2023 and the respondents be
further restrained from taking any coercive action against the
WP(C) No. 428 of 2022 Page 3
Petitioner qua the contract No. HSCL-CPG/GWY15BD003/e094
(LoA)101-8874/G-16945 dated 28-01-2019.
e. Issue a writ of mandamus or any other writ/direction/order or
similar nature whereby commanding the Respondents herein not
to take any coercive action against the Petitioner qua the
Contract No. HSCL-CPG/GWT15BD003/e094 (LoA)101-8874/G-
16945 dated 28-01-2019 and the petitioner be permitted to
execute the works as per the specifications and complete the
same in accordance with the terms and conditions of contract;
f. Pass such and further order (s) as this Hon'ble Court may
deem fit ad proper in the facts and circumstances of the present
case;
g. Pending the final outcome of the present writ petition.
Restrain the Respondents from taking any coercive action against
the Petitioner including the invocation and encashment of Bank
Guarantees as mentioned above; And/or
h. Pass such and further order(s) as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the present
case."
[4] Mr. M. Devananda, learned counsel appearing for the
respondents raised a preliminary objection on the issue of
maintainability of the present writ petition. It has been submitted by the
learned counsel for the respondents that the works for construction of
buildings including allied and external development works for National
Sports University (Package - 2A) at Imphal, Manipur was originally
awarded to the petitioner by Hindustan Steel Works Construction Ltd.
and thereafter, as per the Memorandum of Understanding dated 25-09-
2019 between the Ministry of Youth Affairs & Sports, Government of
India, and the respondent No. 2 i.e., NBCC (India) Ltd, the respondent
WP(C) No. 428 of 2022 Page 4
No. 2 was tasked with monitoring the execution of the said contract
work and to make payments to the contractors directly. It has also been
submitted by the learned counsel that the head office of the respondent
No. 2 is at New Delhi and the respondent No. 2 is carrying on its
business at New Delhi. After taking over the execution of the said
contract work from the HSCL, an Agreement of Novation and
Assignment in connection with the said contract work was signed and
executed at New Delhi between the respondent No. 2, HSCL and the
petitioner on 13th March, 2020. Learned counsel also submitted that in
Para No. 10 and 12 of the said Agreement of Novation and Assignment
dated 13th March, 2020, it has been laid down as under:
'' 10. NBCC, the Assignee shall be responsible for release of all
future payments to SPL as per Agreement dated April 8th, 2019
(for Package 2-A) from the Effective date. Further SPL shall not be
entitled to any compensation or any other payments due to or
arising out of the present agreement from the Assignor and or the
Assignee in any manner.
"12. The Courts of Delhi shall have the sole jurisdiction in respect
of any disputes or claims arising out of or in respect to the present
Agreement.''
[5] Mr. M. Devananda, learned counsel for the respondents
place before this Court a letter dated 07-09-2021 of the Project Manager
of the petitioner addressed to the Joint Manager of the respondent No. 2
furnishing the details of the bank account of the petitioner maintained at
UCO Bank at New Delhi which shall be used exclusively for payment in
WP(C) No. 428 of 2022 Page 5
connection with the said contract work and also requesting to release
further payment to the petitioner in respect of the said contract work
into the aforesaid bank account of the petitioner. It has also been
submitted by the learned counsel for the respondents that the bank
account of the respondent No. 2 is also at New Delhi and that the
respondent No. 2 has been making payment to the petitioner in
connection with the said contract work through the bank account of the
respondent No. 2 and that the bank accounts of the petitioner and the
respondent No. 2 are both at New Delhi. Learned counsel accordingly
submitted that, as the respondent No. 2 is carrying on its business at
New Delhi through its head office and as the Agreement of Novation and
Assignment between the petitioner and the respondent No. 2 in
connection with the said contract work was executed at New Delhi and
as the respondent No. 2 has been making payments to the petitioner in
connection with the said contract work through their banks situated at
New Delhi, cause of action arose partly in New Delhi and the Delhi High
Court has also the jurisdiction to entertain and decide any disputes or
claims arising out of or in respect of the said contract work in terms of
the provisions of Section 20 of the CPC, 1908.
[6] Mr. M. Devananda, learned counsel for the respondents
vehemently submitted that the petitioner and the respondent No. 2 have
voluntarily made an agreement in para No. 12 of the Agreement of
Novation and Assignment dated 13-03-2020 that the Courts of Delhi
WP(C) No. 428 of 2022 Page 6
shall have the sole jurisdiction in respect of any disputes or claims
arising out of or in respect of the said contract work and accordingly, the
Delhi High Court shall have the sole jurisdiction to entertain the present
writ petition and the present writ petition is not maintainable since the
jurisdiction of this Court have been ousted by the aforesaid agreement
between the petitioner and the respondent No. 2. In support of his
contention, learned counsel cited the following Judgments of the Apex
Court :-
(i) "New Moga Transport Co., through its Proprietor
Krishanlal Jhanwar Vs. United India Insurance Co. Ltd. & Ors"
reported in (2004) 4 SCC 677 wherein, it has been held that -
"14. By a long series of decisions it has been held that where two courts or
more have jurisdiction under CPC 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 on a court which otherwise does not have
jurisdiction to deal with the matter.
"17. As we observed by this Court in Shriram case referring to Hakam Singh
case an agreement affecting jurisdiction of courts is not invalid. It is open to
the parties to choose any of the two competent courts to decide the
disputes. Once the parties bind themselves as such it is not open for them to
choose a different jurisdiction.
"18. Above being the factual and legal position, the inevitable conclusion is
that the High Court was not justified in upsetting the order of the first
appellate court. It is not a case where the chosen court did not have
jurisdiction. The only question, therefore, related to exclusion of the other
courts.
WP(C) No. 428 of 2022 Page 7
"19. 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. The first appellate
jurisdiction to try the suit. The High Court did not keep the relevant aspects
in view while reversing the judgment of the trial court. Accordingly, we set
aside the judgment of the High Court and restore that of the first appellate
court. The court at Barnala shall return the plaint to Plaintiff 1 (Respondent
1) with appropriate endorsement under its seal which shall present it within a
period of four weeks from the date of such endorsement of return before the
proper court at Udaipur. If it is so done, the question of limitation shall not
be raised and the suit shall be decided on its own merits in accordance with
the law. The appeal is allowed. No cost."
(ii) "AVM Sales Corporation Vs. Anuradha Chemicals Private
Ltd." reported in (2012) 2 SCC 315 wherein, it has been held that -
"11. However, in this case a slightly different question arises, namely, as to
whether if two courts have the jurisdiction to try a suit, can the parties to an
agreement mutually agree to exclude the jurisdiction of one court in
preference to the other and as to whether the same would amount to
violation of the provisions of Sections 23 and 28 of the Contract Act? The
said question has been answered in the affirmative by the trial court and has
been upheld by the High Court.
"12. The question which has been raised in this special leave petition is not
new and has been considered by this Court earlier in several decisions. We
are, therefore, required to consider as to whether the cause of action for the
suit filed by the respondent in Vijayawada arose within the jurisdiction of the
court of the Principal Senor Civil Judge at Vijayawada, exclusively, or
whether such cause of action arose both in Vijayawada and also Calcutta?
"13. As has been mentioned herein before on behalf of the petitioner, it had
been urged that the entire cause of action for the suit had arisen within the
jurisdiction of the Calcutta courts and the courts at Vijayawada had no
jurisdiction whatsoever to entertain a suit pertaining to the understanding
and agreement arrived at between the parties. However, it was contended
WP(C) No. 428 of 2022 Page 8
on behalf of the respondent that its registered office was situated at
Vijayawada, the invoices for the goods were raised at Vijayawada, the goods
were dispatched from Vijayawada and the money was payable to the plaintiff
or its nominee at Vijayawada by way of demand drafts and, accordingly, the
courts at Vijayawada had the jurisdiction to entertain the suit.
"14. It has often been stated by this Court that cause of action comprises a
bundle of facts which are relevant for the determination of the lis between
the parties. In the instant case, since the invoices for the goods in question
were raised at Vijayawada, the goods were dispatched from Vijayawada and
the money was payable to the respondents or its nominee at Vijayawada, in
our view, the same comprised part of the bundle of facts giving rise to the
cause of action for the suit. At the same time, since the petitioner-defendant
in the suit had its place of business at Calcutta and the agreement for supply
of the goods was entered into at Calcutta and the goods were to be
delivered at Calcutta, a part of the cause of action also arose within the
jurisdiction of the courts in Calcutta for the purposes of the suit. Accordingly,
both the Courts within the jurisdiction of Calcutta and Vijayawada had
jurisdiction under Section 20 of the Code of Civil Procedure to try the suit, as
part of the cause of action of the suit had arisen within the jurisdiction of
both the said courts.
"15. This leads us to the next question as to whether, if two courts have the
jurisdiction to entertain a suit, whether the parties may by mutual agreement
exclude the jurisdiction of one of the courts, having regard to the provisions
of Section 23 and 28 of the Contract Act, 1872. Section 23 of the aforesaid
Act indicates what considerations and objects are lawful and what are not,
including the considerations or objects of an agreement, if forbidden by law.
"18. One of the earlier cases in which this question had arisen, was A.B.C
Laminart (P) Ltd v A.P Agencies. In the said case, the cause of action for the
suit had arisen both within the jurisdiction of the civil court at Salem in
Andhra Pradesh and in the civil court of Kaira in the State of Gujarat. The
question arose as to whether since by mutual agreement the jurisdiction had
been confined only to the courts within Kaira jurisdiction, the suit filed at
Salem was at all maintainable? This Court inter alia held that :
"10 ...... there (could) be no doubt that an agreement to oust absolutely the
jurisdiction of the court will be unlawful and void being against public policy."
WP(C) No. 428 of 2022 Page 9
However, such a result would ensue if it is shown that the jurisdiction to
which the parties had agreed to submit had nothing to do with the contract.
If on the other hand, it is found that the jurisdiction agreed would also be a
proper jurisdiction in the matter of the contract, it could not be said that it
ousted the jurisdiction of the court.
"19. After considering the facts involved in the said case and the
submissions made on behalf of the parties, this Court observed as follows:
"18 .....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 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. If such a
contract is clear, 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."
"20. A similar view was taken by this Court in Angile Insulations Vs. Davy
Ashmore India Ltd., wherein, the Hon'ble Judges while referring to the
decision of this Court in A.B.C Laminart (P) Ltd., case, inter alia, held that
where two courts have the jurisdiction consequent upon the cause of action
or a part thereof arising therein, if the parties agree in clear and
unambiguous terms to exclude the jurisdiction of the other, the said decision
could not offend the provisions of Section 23 of the Contract Act. In such a
case, the suit would lie in the court to be agreed upon by the parties.
"21. This Court has consistently taken the same view in several subsequent
cases. We may refer to one such decision of this Court in Hanil Era Textiles
Ltd. V. Puromatic Filters (P) Ltd., where part of the cause of action arose at
both Delhi and Bombay. This Court held that the mutual agreement to
exclude the jurisdiction of the Delhi courts to entertain the suit was not
opposed to public policy and was valid.
"22. As indicated herein earlier, in this case also the cause of action for
Original Suit No. 519 of 1991 filed by the respondent before the Principal
Senior Civil Judge, Vijayawada arose partly within the jurisdiction of the
Calcutta courts and the courts at Vijayawada.
"23. Having regard to the provisions referred to herein above, though the
courts at Vijayawada would also have jurisdiction, along with the courts at
WP(C) No. 428 of 2022 Page 10
Calcutta, to entertain and try a suit relating to and arising out of the
agreement dated 23-12-1988, and the mutual understanding dated 15-05-
1989, such jurisdiction of the courts at Vijayawada would stand ousted by
virtue of the exclusion clause in the agreement."
(iii) "Swastik Gases Private Limited Vs. Indian Oil Corporation
Limited" reported in (2013) 9 SCC 32 wherein, the Apex Court after
considering a number of its earlier judgments held that -
"29. When it comes to the question of territorial jurisdiction relating to the
application under Section 11, besides the above legislative provisions,
Section 20 of the Code is relevant. Section 20 of the Code states that subject
to the limitations provided in Sections 15 to 19, 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 commencement of the suit, actually and voluntarily
resides, or carry 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
(c) the cause of action, wholly or in part arises.
"30. The Explanation appended to Section 20 clarifies that a corporation shall
be deemed to carry on business at its sole or principal office in India or, in
respect of any cause of action arising at any place where it has also a
subordinate office, at such place.
"31. In the instant case, the appellant does not dispute that part of cause of
action has arisen in Kolkata. What appellant says is that part of cause of
action has also arisen in Jaipur and, therefore, the Chief Justice of the
Rajasthan High Court or the designate Judge has jurisdiction to consider the
application made by the appellant for the appointment of an arbitrator under
Section 11. Having regard to Section 11 (12)(b) and Section 2 (e) of the
1996 Act read with Section 20 (c) of the Code, there remains no doubt that
the Chief Justice or the designate Judge of the Rajasthan High Court has
WP(C) No. 428 of 2022 Page 11
jurisdiction in the matter. The question is, whether parties by virtue of Clause
18 of the agreement have agreed to exclude the jurisdiction of the courts of
Jaipur or; in other words, whether in view of Clause 18 of the agreement,
the jurisdiction of the Chief Justice of the Rajasthan High Court has been
excluded?
"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 in 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 exclucio 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 manner, 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.
"33. The above view finds support for the decisions of this Court in Hakam
Singh, A.B.C Laminart, R.S.D.V Finance, Angile Insulations, Shriram City,
Hanil Era Textiles and Balaji Coke.
"34. In view of the above, we answer the question in the affirmative and
hold that the impugned order does not suffer from any error of law. The civil
appeal is, accordingly, dismissed with no order as to costs. The appellant
shall be at liberty to pursue its remedy under Section 11 of the 1996 Act in
the Calcutta High Court."
WP(C) No. 428 of 2022 Page 12
[7] Mr. S. D Singh, learned counsel for the petitioner
did not deny or controvert any of the factual position submitted by
the learned counsel for the respondents, however, learned counsel
strenuously submitted that some cause of action arose in Delhi is
irrelevant inasmuch as the contract work is to be executed in the
State of Manipur and this Court has jurisdiction to entertain and
decide the present writ petition. Learned counsel further submitted
that the agreement in Para No. 12 of the Agreement of Novation
and Assignment dated 13-03-2020 is not valid for the reason that a
private agreement entered into between the petitioner and the
respondent No. 2 cannot exclude/oust the writ jurisdiction of this
Court or confer jurisdiction in a court where no cause of action
arose. The learned counsel accordingly submitted that there is no
merit in the submission advanced by the learned counsel for the
respondents and that the present writ petition is maintainable. In
support of his contention, learned counsel for the petitioner relied
on the judgment of the Apex Court rendered in the case of
"Maharashtra Chess Association Vs. Union of India & Ors"
reported in (2020) 13 SCC 285 wherein, it has been held as
under:
"17. The observation extracted above raises an important
consideration with respect to the present case. If, by the self-
imposed rule, the writ jurisdiction of High Courts is circumscribed
by the existence of a suitable alternate remedy, whether
constitutional, statutory, or contractual, then a High court should
WP(C) No. 428 of 2022 Page 13
not exercise its writ jurisdiction where such an alternate remedy
exists. Thus, before we address the question of whether or not
Clause 21 of the Constitution and bye-laws compel the Bombay
High Court to abstain from entertaining the appellant's writ
petition, we must first address ourselves to whether, even in the
absence of Clause 21, the existence of an alternate remedy would
create a bar on the Bombay High Court entertaining the appellant's
writ petition.
"18. The case of the second respondent is that the dispute
should be heard and decided at Chennai. It follows that if the
respondents argument is accepted, the High Court of Madras
would hear the present matter. Therefore, the alternate remedy
(i.e, a writ petition before the High Court of Madras) is equal in
every way to the present remedy sought by the appellant. The
High Court of Madras imbued with the same powers in the exercise
of its writ jurisdiction. The submission on the above premises is
that the appellant can avail of the same relief at Chennai as it may
in Mumbai. Hence, the agreement between the parties may prevail
and the writ jurisdiction of the Bombay High Court under Article
226 stands ousted.
"19. This argument of the second respondent is
misconceived. The existence of the alternate remedy, whether
adequate or not, does not alter the fundamentally discretionary
nature of the High Court writ jurisdiction and therefore, does not
create an absolute legal bar on the exercise of the writ jurisdiction
by a High Court. The decision whether or not to entertain an
action under its writ jurisdiction remains a decision to be taken by
the High Court on an examination of the facts and circumstances
of a particular case.
"20. This understanding has been laid down in several
decisions of this Court. In U.P State Spg. Co. Ltd. v R.S. Pandey
this Court held (SCC p. 270, para 11)
"11. Except for a period when Article 226 was
amended by the Constitution (Forty-second Amendment) Act,,
1976, the power relating to alternative remedy has been
WP(C) No. 428 of 2022 Page 14
considered to be a rule of self-imposed limitation. It is essentially a
rule of policy, convenience and discretion and never a rule of law.
Despite the existence of an alternative remedy it is within the
jurisdiction or discretion of the High Court to grant relief under
Article 266 of the Constitution. At the same time, it cannot be lost
sight of that though the matter relating to alternative remedy has
nothing to do with the jurisdiction of the case, normally the High
Court should not interefere if there is an adequate efficacious
alternative remedy."
"21. The principle that the writ jurisdiction of a High Court
can be exercised where on adequate alternative remedies exists
can be traced further back to the decision of the Constitution
Bench of this Court in State of U.P v Mohd. Nooh where Vivian
Bose, J. observed: (AIR p. 93, para 10)
"10. In the next place it must be borne in mind that
there is no rule, with regard to certiorari as there is with
mandamus, that it will lie only where there is no other equally
effective remedy. It is well established that, provided the requisite
grounds exist, certiorari will lie although a right of appeal have
been conferred by statute. (Halsbury's Laws of England, 3rd Edn.,
Vol. 11, p. 130 and the cases cited there). The fact that the
aggrieved party has another an adequate remedy may be taken
into consideration by the superior court in arriving at a conclusion
as to whether it should, in exercise of its discretion, issue a writ or
certiorari to quash the proceedings and decisions of inferior court
subordinate to it and ordinarily the superior court will decline to
interfere until the aggrieved party has exhausted his other
statutory remedies, if any. But this rule requiring the exhaustion of
statutory remedies before the writ will be granted is a rule of
policy, convenience and discretion rather than a rule of law and
instances are numerous where a writ of certiorari has been issued
inspite of the fact that the aggrieved party had other adequate
legal remedies."
"22. The mere existence of alternate forums where the
aggrieved party may secure relief does not create a legal bar on a
WP(C) No. 428 of 2022 Page 15
High Court to exercise its writ jurisdiction. It is a factor to be taken
into consideration by the High Court amongst several factors.
Thus, the mere fact that the High Court a Madras is capable of
granting adequate relief to the appellant does not create a legal
bar on the Bombay High Court exercising its writ jurisdiction in the
present matter.
"26. In the present case, the Bombay High Court has relied
solely on Clause 21 of the Constitution and bye-laws to hold that
its own jurisdiction is ousted. The Bombay High Court has failed to
examine the case holistically and make a considered determination
as to whether or not it should, in its discretion exercise its powers
under Article 226. The scrutiny to be applied to every writ petition
under Article 226 by the High Court is crucial safeguard of the rule
of law under the Constitution in the relevant territorial jurisdiction.
It is not open to a High Court to abdicate this responsibility merely
due to the existence of a privately negotiated document ousting its
jurisdiction.
"27. It is certainly open to the High Court to take into
consideration the fact that the appellant and the second
respondent consented to resolve all their legal disputes before the
courts at Chennai. However, this can be a factor within the
broader factual matrix of the case. The High Court may decline to
exercise jurisdiction under Article 226 invoking the principle of
forum non conveniens in an appropriate case. The High Courto
must look at the case of the appellant holistically and make a
determination as to whether it would be proper to exercise its writ
jurisdiction. We do not express an opinion as to what factors
should be considered by the High Court in the present case, nor
the corresponding gravity that should be accorded to such factors.
Such principles are well known to the High Court and it is not for
this Court to interfere in the discretion of the High Court in
determining when to engage its writ jurisdiction unless exercise
arbitrarily or erroneously. The sole and absolute reliance by the
Bombay High Court on Clause 21 of the Constitution and bye-laws
WP(C) No. 428 of 2022 Page 16
to determine its jurisdiction under Article 226 is ousted, is
however one such instance.
"28. We accordingly allow the appeal and set aside the
impugned judgment and order of the High Court dated 25-09-
2018. Writ Petition No. 7770 of 2017 is accordingly restored to the
file of the High Court for being considered afresh. No costs.
Pending application (s), if any, shall stand disposed of."
[8] After hearing the rival submissions of the learned
counsel for the parties, this Court is of the considered view that
there is no dispute with regard to the fact that the cause of action
arose partly in Delhi and accordingly both this Court and the High
Court of Delhi have jurisdiction to entertain and decide the disputes
raised in the present writ petition.
[9] The principle of law that when two Courts have
concurrent jurisdiction to try the dispute between the parties and
the parties have agreed that the disputes should be tried by only
one of the courts, then the court mentioned in the agreement shall
have jurisdiction has been well settled by the Hon'ble Supreme
Court in a catenae of its judgments. In my considered view, such
principle of law had been clearly laid down by the Hon'ble Apex
Court in the case of "Hanil Era Textiles Ltd." (supra), "A.V.M
Steel Corporation" (supra), "Swastika Gases Private Ltd."
(supra) etc., relied on by the learned counsel for the petitioner.
[10] In the present case, having regard to the
undisputed facts and as the petitioner and the respondent No. 2
WP(C) No. 428 of 2022 Page 17
have voluntarily entered into an agreement in Para No. 12 of the
Agreement of Novation and Assignment dated 13-03-2020 that the
courts of Delhi shall have the sole jurisdiction in respect of any
disputes or claims arising out of or in respect of the said contract
work, this Court has no hesitation to hold that only courts of Delhi
shall have the sole jurisdiction to decide the disputes raised in the
present writ petition and in view of the exclusion clause in the
agreement, jurisdiction of this Court would stand ousted.
[11] The facts of the case of "Maharashtra Chess
Association" (supra) cited by the counsel for the petitioner is
totally different from the facts of the present case. In the said case,
no issue was raised or considered as to whether both the Courts at
Chennai and Bombay High Court have concurrent jurisdiction to
entertain and decide the disputes involved in the said case and that
it has been clearly held by the Apex Court in Para No. 26 of the said
judgment that the Bombay High Court relied solely on Clause 21 of
the Constitution and By-Laws to hold that the Bombay High Court
has no jurisdiction and that the said High Court has failed to
examine the case holistically and make a considered determination
as to whether or not it should, in its discretion, exercise its power
under Article 226. It has been further held that the scrutiny to be
applied to every writ petition under Article 226 by the High Court is
crucial safeguard of the rule of law under the Constitution in the
WP(C) No. 428 of 2022 Page 18
relevant territorial jurisdiction and that it is not open to a High
Court to abdicate the responsibility merely due to the existence of
the privately negotiated document ousting its jurisdiction.
[12] In Para No. 9 of the said judgment, the Hon'ble
Apex Court clearly upheld the principle of law that where parties to
a contract confer jurisdiction on one amongst multiple courts having
proper jurisdiction to the exclusion of all other courts, the parties
cannot be said to have ousted the jurisdiction of all court and that
such a contract is valid and will bind the parties to a civil action.
[13] In view of the above, this Court is of the considered
view that the judgment of the Apex Court in the case of
"Maharashtra Chess Association" (supra) relied by the counsel
for the petitioner is not applicable in the facts and circumstances of
the present case.
[14] Having regards to the undisputed facts of the
present case and in view of the settled principle of law laid down by
the Hon'ble Apex Court in the case relied on by the learned counsel
for the respondents, this Court is of the considered view that the
jurisdiction of this Court would stand ousted and that only the
courts of Delhi shall have the sole jurisdiction to entertain and
decide the disputes raised by the petitioner in the present writ
petition and accordingly, the present writ petition is hereby
dismissed as not maintainable. It is, however, made clear that the
WP(C) No. 428 of 2022 Page 19
petitioner will have liberty to file appropriate proceedings before the
appropriate Court to redresses any of its grievances raised in the
present writ petition. Having regard to the facts and circumstances
of the present case, the parties are to bear their own cost.
JUDGE
FR/NFR
kim
WP(C) No. 428 of 2022 Page 20
