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Andhra Pradesh High Court
Judges : ALLADI KUPPUSWAMI
TEDIKAPALLE ANJANEYULU - Appellant
Versus
RAMA KRISHNA TEXTILES - Respondent
Decided On : 06-23-77
JURISDICTION - SUBJECT TO BOMBAY JURISDICTION - SECTION 28, CONTRACT ACT, 1872 - Whether a clause in a contract stating subject to Bombay jurisdiction would exclude the jurisdiction of other courts.
Fact of the Case:
The plaintiff, a registered firm carrying on business in clothes as Pedhee at Bombay, filed a suit against the defendants, who were partners in a firm carrying on business at Vijayawada, for recovery of a sum of money due under a settlement of accounts. The defendants contended that the Court at Vijayawada had no jurisdiction to try the suit, as the bills issued by the plaintiff for the goods supplied by them stated subject to Bombay jurisdiction.
Finding of the Court:
The court held that the clause subject to Bombay jurisdiction in the contract could not mean that the Bombay Court could have exclusive jurisdiction and there was nothing in the contract to exclude the jurisdiction of the Courts at Vijayawada. It observed that the jurisdiction of Court can be excluded only by express words or by necessary implication. There were no express words in this contract excluding the jurisdiction of the Courts at Vijayawada and it could not be said that by necessary implication that such jurisdiction was excluded.
Issues: 1. Whether the Court at Vijayawada had jurisdiction to try the suit. 2. Whether the defendants ceased to be partners on 4th September, 1968 and are not liable to pay any amount. 3. Whether the plaintiff was entitled to commission.
Ratio Decidendi: 1. The court held that the clause subject to Bombay jurisdiction in the contract could not mean that the Bombay Court could have exclusive jurisdiction and there was nothing in the contract to exclude the jurisdiction of the Courts at Vijayawada. It observed that the jurisdiction of Court can be excluded only by express words or by necessary implication. There were no express words in this contract excluding the jurisdiction of the Courts at Vijayawada and it could not be said that by necessary implication that such jurisdiction was excluded. 2. The court held that there was no evidence to show that the defendants had ceased to be partners on 4th September, 1968. 3. The court held that the plaintiff was not entitled to commission, as the expression commission used in the settlement of accounts was in the nature of additional interest.
Final Decision: The appeal was partly allowed. The decree was modified in the light of the judgment and the appellants were directed to pay proportionate costs to the respondent.
( 1 ) DEFENDANTS 2 to 4 in O. S. No. 390 of 1971 on the file of the Second additional Subordinate Judge s Court, Vijayawada, have filed this appeal against the judgment and decree in that suit granting a decree in favour of the plaintiff for a sum of Rs. 17,493-27. The first respondent herein filed that suit for recovery of a sum of Rs. 21. 651-17. The case of the plaintiff which is a registered firm carrying on business in clothes as Pedhee at bombay is that the defendants formed a partnership in the name and style of Sri lakshmikanth Textiles. All the defendants are partners of the firm carrying on business at Vijayawada. The defendant purchased goods from time to time from the plaintiff Under the terms of the contract the defendants agreed to pay interst and commission at 1% per mensum on the amount due to the plaintiff On 16th October, 1963 there, was a settlement of accounts and it was fouad that the defendants are to pay the plaintiff a sum of Rs. 25,000 They agreed to pay the sum with interest at 88 paise per, month and further agreed to pay 1% commission and executed a pronote in the plaintiff s account book, The first defendant signed the account book on behalf of the firm as partner. Subsequent to the settlement the defendants made several payments and after giving credit to these payments a sum of Rs 14,911. 25 is due towards principal, together with interest at 88 paise per month and commission at 1% the total amonnt payable to the plaintiff is Rs 21, 651. 17. It is sufficient to refer to the contentions of defendants 2, 3 and 4 who alone are the appellants here. They contended inter alia that they ceased to be partners with effect from 4th September, 1968 and hence they are not liable to pay any amount under a settlement arrived at after their retirement. It was further contended that the plaintiff was not entitled to any commission. Lastly it was contended that the Court at Vijayawada has no jurisdiction to try the suit. It is unnecessary to set out the other contentions as these three contentions alone are pressed before me. The gourt below held that it had jurisdiction to by the suit. It found on the evidence that defendants 2 to 4 bad not satisfactorily established that they retired from the partnership business prior to the settlement and that the settlement was not binding upon them. It was also found that under the settlement the defendants had agreed to pay commission also in addition to interest. It however found that the amount claimed included commission as well as interest on commission and a sum of Rs. 1,000 which had been paid on 4th September, 1968 was not deducted from the suit claim. The Court below disallowed a sum of Rs. 4,157-90 for these items and held that the plaintiff was entitled to recover Rs. 17,493-27.
( 2 ) IN this appeal Sri Rajeswara Rao, the Counsel for the appellants has raised the following contentions. (1) The gub-Court, Vijayawada has no jurisdiction to try the suit. (2) Defendants 2 to 4 ceased to be partners on 4th September, 1968 and are not liable to pay any amount. (3) In any event the lower Court ought to have held that the plaintiff was not entitled to commission. Btfore dealing with these contentions seriatim a few facts relating to the course of business as disclosed in the evidence may be set out. The defendants who are carrying on business as a firm at Vijayawada had dealings with the plaintiff s firm which was carrying on business at Bombay. The defendants indicate to the plaintiff the goods which they are interested buying from them. Accordingly the plaintiff purchased the goods locality and sold them in turn to the defendants. The plaintiff does not act as a broker but there is a direct sale by the plaintiff in favour of the defendants.
( 3 ) IN the bills prepared by the plaintiff it is stated that interest is chargeable at 9% on the amount payable by the defendant for the value of the goods. Further it is the case of the plaintiff that the mil
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