CHOUDHARY SIA SARAN SINGH, J.

1. The point involved in this civil revision, referred to a Division Bench by a learned single Judge of this Court, is a short and simple one.

2. The petitioner, a Cold Storage Company Private Ltd., existing in the district of Monghyr, entered into a contract of insurance with the National Insurance Co. Ltd., (Opposite Party No. 1), Opposite party No. 1 has its head office at Calcutta but it has different units, one of them being at Patna, opposite party No. 2, Undisputedly, they both undertake the business of insurance in India and are not foreign Insurance Company.

3. An insurance agreement was entered between the parties sometime in the year 1974. Undisputedly, both the Civil Courts at Calcutta as also at Patna were Courts of competent jurisdiction for the purpose of settlement of disputes arising out of the insurance contract. A dispute did arise between the parties and the petitioner filed an application in forma pauperis against the opposite party in the Court of the Subordinate Judge at Patna seeking a relief for Rs. 9 lacs against the opposite party. The opposite party challenged the Jurisdiction of the Subordinate Judge at Patna to entertain this application on the ground that as per agreement between the parties, as embodied in the insurance contract, forum had been restricted only to the Civil Court at Calcutta. This objection raised by the opposite party weighed with the Subordinate Judge, Patna, and he dismissed the petition filed by the petitioner returning the miscellaneous petition to it for presentation before a competent Court of jurisdiction. It is this order of the Subordinate Judge, which is under challenge before this Court in this civil revision.

4. It is undisputed that the Insurance Act, 1938 , (hereinafter referred to as the Act) will apply to the parties in the instant case. Sec. 46 of the Act in clear and unambiguous terms provides as follows :-

"The holder of a policy of Insurance issued by an insurer in respect of insurance business transacted in India after the commencement of this Act shall have the right, notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto, to receive payment in India of any sum secured thereby and to sue for any relief in respect of the policy in any Court of competent Jurisdiction in India and if the suit is brought in India any question of law arising in connection with any such policy shall be determined according to the law in force in India". In view of this statutory provision in Sec. 46 of the Act, any agreement between the parties restricting the forum only to the Calcutta Court cannot but be regarded as bad in law. Unfortunately, attention of the Court below does not appear to have been drawn to the provisions of Sec. 46 of the Act.

5 Mr. K.D. Chatterjee, learned counsel for the opposite party, however, contended that Sec. 46 was intended to apply only to a foreign Insurance Company and not to an Insurance Company having its origin and business in India. To support his contention Mr. Chatterjee laid emphasis on the terms "in India" occurring at more than one places in Sec. 46 of the Act. It is difficult to accept this contention of Mr. Chatterjee, Sec.2 (9) of the Act defines inusurer it consists of two parts : While one part includes an Insurance Company of Indian origin, the other part is wide enough to embrace even a foreign Insurance Company functioning in the manner laid down therein, Sec. 46 of the Act refers to the term insurer as defined in Sec.2 (9) of the Act and this being the position and the purpose for which Sec. 46 of the Act was enacted the parliament might have thought it necessary to emphasise the words "in India" in Sec. 46 in the manner it has been done.

6. Referring to certain paragraphs of Maxwell on the Interpretation of Statutes, Mr. K.D. Chatterjee contended that the words used in Sec. 46 of the Act have to be construed in the context of the Subject and the