A Court cannot rely on an alleged agreement to decide the question of jurisdiction when the legality of the agreement itself is challenged in the suit and written statement has not been filed.

( 1 ) THIS first miscellaneous appeal is at the instance of a plaintiff in a suit for declaration and injunction and is directed against Order No. 21 dated 5th April, 2003 passed by the learned Judge, 5th bench, City Civil Court at Calcutta in Title Suit No. 203 of 2002 thereby allowing an application under Order 7 Rule 10 read with section 151 of the Code of Civil procedure filed by the defendants and returning the plaint to the plaintiff for presentation to the Court having jurisdiction.

( 2 ) THE plaintiff field the aforesaid suit thereby praying for the following relief : " (a) For a declaration that the plaintiff is the absolute owner of the motor vehicle No. WB-03b-0750 and the plaintiff is entitled to the No objection Certificate and relevant Forms from the defendant No. 1 upon payment of the entire loan including interest of Rs. 4,87,751/-and the defendants have no right to seize the vehicle. (b) For a declaration that the blank and printed papers and documents bearing the left thumb impression of the plaintiff and lying in possession, control and custody of the defendants are of no use, non-existent, shams and colourable and not binding upon the plaintiff. (c) For delivery up and cancellation of all the papers and documents referred to in prayer (b) above. (d) For perpetual Injunction restraining the defendants, their men, agents and assigns from using in any way the papers and documents referred to in prayer (b) above. (e) For permanent injunction restraining the defendants, their men, agents and/or assigns from selling and/or disposing off the aforesaid motor vehicle prejudicial to the interest of the plaintiff. (f) Temporary injunction in terms of Prayer (e) above. (g) Mandatory injunction directing the defendants to release the motor vehicle No. WB-03b-0705 forthwith in favour of the plaintiff. (h) For other reliefs that the plaintiff may be found entitled to in law and in equity. "

( 3 ) AFTER entering appearance in the said suit, the defendants filed an application under Order 7 Rule 10 read with section 151 of the Code of Civil procedure thereby praying for an order for return of the plaint to the plaintiff for being presented to the proper Court at Mumbai where, according to the defendants, the suit ought to have been filed. In the said application, the defendant contended that Courts at Mumbai are the only competent Courts to entertain, try and determine the present suit and that the Courts at Calcutta do not have any jurisdiction to entertain the suit. In support of such contention, the defendant relied upon various clauses in the agreement alleged to have been entered into between the parties which indicated that the office of the defendant was in Mumbai, the payment of the price of the vehicles purchased by the defendant for giving the same on hire-purchase was made in Mumbai and the payment from the hirer by way of either the initial payment or the monthly payment was also received at Mumbai and accordingly, the parties elected to exclude all other Courts that those of Mumbai to try suits in respect of any claim or dispute arising out or under the said agreement.

( 4 ) BY relying upon the aforesaid clauses in the alleged agreement, the defendants prayed for return of the plaint.

( 5 ) THE aforesaid prayer was opposed by the plaintiff thereby contending that on the basis of the averments made in the plaint the suit was very much triable before the City Civil Court at Calcutta and further, the plaintiff having prayed for declaration that the alleged agreement was a sham transaction, the conditions mentioned in any of the clauses appearing in the said agreement cannot exclude the jurisdiction of the Court.

( 6 ) THE learned Trial Judge, as indicated above, by the order impugned, has held that in view of existence of specific clause in the agreement by which the parties decided to elect forum by selecting Courts at Mumbai in exclusion of others, the Court at Calcutta had no juris