Judgment-

K. N. SAIKIA

( 1 ) THIS is an appeal by special leave from the judgment and order of the High Court at Madras dated 4/11/1980 in C. M. A. No. 218 of 1978 allowing the appeal and setting aside the judgment of the subordinate judge at Salem in original suit No. 302 of 1975 on the preliminary question of jursidiction.

( 2 ) THE first appellant is a manufacturer and supplier of metallic yarn under the name and style rupalon Metallic Yarn having its registered office at Udyognagar, Mohamadabad, Gujarat within the jurisdiction of the civil Court of Kaira. The second appellant is a sister concern of the first appellant doing business with it. The respondent is a registered partnership firm doing business in metallic yarn and other allied products at Salem.

( 3 ) THE first petitioner entered into an agreement with the respondent on 2-10-1974 whereunder the appellants were to supply 5000 bobbins of Rupalon Metallic Yarn to the respondent at the rate of Rs. 35. 00 per bobbin as stipulated in different clauses of the agreement. Clause 11 of the agreement provided as follows:

"any dispute arising out of this sale shall be subject to Kaira jurisdiction. "

( 4 ) DISPUTES having arisen out of the contract the respondent filed a suit, being original suit No. 302 of 1975, against the appellants in the Court of Subordinate Judge at Salem for the recovery of a sum of Rs. 1,63,240 claiming to be the balance of the advance remaining in the hands of the appellants and also a sum of Rs. 2,40,000 towards damages. The appellants took a number of defences and also took a preliminary objection that the Subordinate Judge at Salem had no jurisdiction to entertain the suit as parties by express contract had agreed to confer exclusive jurisdiction in regard to all disputes arising out of the contract on the civil Court at Kaira.

( 5 ) THE Trial Court, inter alia, framed issue No. 2 as follows.

"issue No. 2. Has the court no jurisdiction to entertain-or try this suit ?"

THE learned Court treating it as a preliminary issue in its judgment dated 18-4-1978 found that it had no jurisdiction to entertain the suit in view of Clause 11 and accordingly it returned the Plaint for presentation in the proper court. The respondent appealed therefrorn, in C. M. A. No. 218 of 1978, to the High Court of Madras which by the impugned Judgement and Order dated 4-11-1980 allowed the appeal, setting aside the judgment of the trial Court with a direction to take the plaint on file and dispose of the suit on merits on other issues. Hence this appeal.

( 6 ) MR. Pinaki Misra, the learned counsel for the appellants, submits that Clause 11 of the agreement having provided that any dispute arising out of this sale shall be subject to Kaira jurisdiction, the parties are bound by it and the suit could therefore have been filed only within Kaira jurisdiction and not at Salem, and as such, the High Court committed error of law in setting aside the Trial Court judgment and in directing the Court at Salem to entertain the suit. Mr. S. S. Javali, the learned counsel for the respondent, submits that what is being called Clause 11 of the agreement was only one of the general terms and conditions of the sale and not a clause in the agreement, and that even if it was construed as a clause in the agreement itself it was not exclusive so as to take away all jurisdictions except that of Kaira.

( 7 ) THE first question to be decided, therefore, is whether Clause 11 as aforesaid formed part of the agreement. Mr. Javali submits that Ext. B-1 is an order of confirmation No. 68/59 dated 2-10-1974 from the Sales Excutive for the first appellant to the respondent acknowledging the receipt of their order and registering the same subject to the terms and conditions overleaf. The general terms and conditions printed overleaf included the aforesaid Clause 11. We are unable to agree. Admittedly the parties have transacted the business on inter alia basis of Clause 11. There is, therefore, no escape from t