Orissa High Court
(An Application Under Articles ... vs Smt. K. Renuka on 8 September, 2023
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 25015 OF 2012
(An application under Articles 226 and 227 of the
Constitution of India)
*****
M/s. Netrine Confectionary Ltd.,
Andhra Pradesh ...... Petitioner
-Versus-
Smt. K. Renuka ....... Opp. Party
Advocates appeared:
For Petitioner : Mr. Kalyan Pattnaik, Advocate
For Opp. Party : Mr. S.S. Rao, Senior Advocate
being assisted by
Mr. Brahmananda Tripathy, Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Delivered on 08.09.2023
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Order dated 11th October, 2012 (Annexure-5) passed by
learned 1st Additional Civil Judge (Senior Division), Cuttack in
Civil Suit No. 175 of 2008 is under challenge in this writ petition,
whereby an application filed by the Defendant No.1-Petitioner to
hold that the said Court lacks territorial jurisdiction to try the suit,
was dismissed.
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
3. Opposite Party as Plaintiff filed the suit for realization of
Rs.11,78,000/- from the Defendant-Petitioner along with an
interest at the rate of 12% per annum. The Defendant No.1-
Petitioner filed written statement denying its liability to pay the
amount. The Petitioner also filed an application (Annexure-3) to
decide the issue of territorial jurisdiction of learned trial Court to
try the suit at the threshold on the ground that Clause-26 of the
agreement, which was mutually agreed upon by the parties and
basing upon which the suit is filed, clearly stipulates that 'all
disputes that may arise with regard to this agreement shall be
subject to Chittor (A.P.) Court jurisdiction only.' Thus, learned
trial Court lacks jurisdiction to try the suit. Learned trial Court
without deciding the issue at the threshold held that the issue of
territorial jurisdiction can be taken up simultaneously along with
other issues in the suit for effective adjudication. It, accordingly,
rejected the petition filed by the Defendant-Petitioner vide order
under Annexure-5. Assailing the said order, this writ petition has
been filed.
4. Mr. Pattnaik, learned counsel for the Petitioner submitted
that the suit is filed by the Opposite Party for realization of money,
which is allegedly due to her as per the terms and condition of the
agreement, as aforesaid. Thus, the present dispute arose from the
agreement and hence, only competent civil Court at Chittor (A.P.)
has territorial jurisdiction to try the suit. As such, learned Civil
Judge (Senior Division), Cuttack has no jurisdiction to try the suit.
This material aspect could not be appreciated by learned trial
Court. It is his submission that no evidence is required to be
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Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
adduced by the parties for adjudication of the issue of territorial
jurisdiction in the instant case. As such, learned trial Court has
committed gross error of law in not considering the issue of
territorial jurisdiction of the Court to try the suit at the threshold.
He, therefore, prayed for setting aside the order under Annexure-5
and remit the matter to learned trial Court to adjudicate the issue
of territorial jurisdiction of that Court to try the suit at the
threshold. In support of his submission, Mr. Pattnaik, learned
counsel relied upon the case of New Moga Transport Company
-v- United India Insurance Co. and others, reported in AIR 2004
SC 2154, wherein it is held as under:-
"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 a
matter. [See Hakam Singh v. Gammon (India) Ltd. [(1971)
1 SCC 286: AIR 1971 SC 740] and Shriram City Union
Finance Corpn. Ltd. v. Rama Mishra [(2002) 9 SCC 613:
AIR 2002 SC 2402].
xxx xxx xxx xxx
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.
.........."
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Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
5. He also relied upon the case of Swastik Gases Private
Limited -v- Indian Oil Corporation Limited reported in (2013) 9
SCC 32, wherein it is held as under;
"32. ......... 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 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.
xxx xxx xxxx xxxx
37. In my opinion, the very existence of the exclusion of
jurisdiction clause in the agreement would be rendered
meaningless were it not given its natural and plain
meaning. The use of words like "only", "exclusively",
"alone" and so on are not necessary to convey the intention
of the parties in an exclusion of jurisdiction clause of an
agreement. Therefore, I agree with the conclusion that
jurisdiction in the subject-matter of the proceedings vested,
by agreement, only in the courts in Kolkata.
xxx xxx xxxx xxxx
40. There is really no difficulty in interpreting the exclusion
clause in the first set of decisions. The clause in these
decisions generally uses the word "alone" and, therefore, it
is quite obvious that the parties have, by agreement,
excluded the jurisdiction of courts other than those
mentioned in the agreement......."
Mr. Patnaik, learned counsel, therefore submitted that the
impugned order is not sustainable and is liable to be set aside.
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
6. Mr. Rao, learned Senior Advocate appearing on behalf of
the Opposite Party referred to Section 21 of CPC and submitted
that the issue of jurisdiction of the Court should be raised at the
earliest possible opportunity. In the instant suit, the Petitioner has
already filed its written statement submitting it to the jurisdiction
of learned trial Court. Thus, it is no more available to be raised by
the Defendant-Petitioner as the petition under Annexure-3 was
filed after the settlement of issues. Thus, learned trial Court has
committed no error in rejecting the petition. It is his submission
that there is no material on record to come to a conclusion that if
the issue of territorial jurisdiction of the Court is not decided at the
threshold, it will cause failure of justice. Hence, the writ petition is
liable to be dismissed and the Plaintiff-Opposite Party may be
permitted to adduce evidence in the suit.
7. Heard learned counsel for the parties and perused the case
record as well as the case law placed before this Court.
8. Admittedly, Clause-26 of the agreement executed
between the parties clearly stipulates that all disputes arising out of
the said agreement will be subject to the jurisdiction of Court at
Chittor (A.P.) only. It appears from the agreement at Annexure-2
to the writ petition that it was executed at Chittor (A.P.) on 1st
April, 2000 appointing one 'Rasi Trade Syndicate', a partnership
firm as the clearing and forwarding agent of the Defendant-
Company. Said Rasi Trade Syndicate ordinarily carries on its
business at Cuttack. But, the issue is whether in view of Clause-26
of the agreement the Court at Cuttack should decide the issue of
territorial jurisdiction to try the suit at the threshold.
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Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
9. Law is no more res integra, if two or more Courts have
jurisdiction to adjudicate upon a dispute between the parties and
by consent both the parties chose one of such Court to decide a
dispute between them, then the jurisdiction of all other Court is
ousted. Such an agreement is not hit by Section 23 of the Contract
Act. The law on this aspect has already been settled in the above-
mentioned case law.
10. In the instant case, the petition under Annexure-3 was
filed at a stage when the suit was posted for evidence of the
Plaintiff, as a last chance, i.e., on 6th August, 2010. Written
statement filed by the Defendant No.1- Petitioner is not available
in the case record. There is also no other material on record to hold
that the issue of territorial jurisdiction of the Court was raised at
the earliest possible opportunity. The Petitioner also failed to make
out a case that non-consideration of the issue of territorial
jurisdiction would result in failure of justice as provided under
Section 21 CPC. It is, more so, because learned trial Court held
that the issue of territorial jurisdiction of the said Court will be
considered along with other issues. Adjudication of issue of
territorial jurisdiction may require scrutiny of evidence on record,
as held by learned trial Court.
11. When the suit is ripe for trial and it is posted for evidence
of the Plaintiff, adjudication of the issue of territorial jurisdiction
of the Court will certainly be a piece-meal trial of the suit, as
rightly held by learned trial Court.
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
12. Hence, this Court is not inclined to interfere with the
impugned order under Annexure-5. As the suit is of the year,
2008, learned trial Court should make all endeavor to see that the
suit is disposed of at the earliest. No unnecessary/long
adjournment shall be granted to any of the parties to the suit.
Parties shall co-operate with learned trial Court for early disposal
of the suit. Learned trial Court is also at liberty to take coercive
measure in accordance with law, if any of the parties does not co-
operate with it.
13. The writ petition is, accordingly, dismissed. But, there
shall be no order as to cost.
14. Interim order dated 14th February, 2013 passed in Misc.
Case No. 21542 of 2012 stands vacated.
Urgent certified copy of this judgment be granted on
proper application.
...........................
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated 8th September, 2023
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