Valmiki J. Mehta, J.

1. The challenge by means of this Regular First Appeal under Section 96 of Code of Civil Procedure, 1908, is to the impugned judgment and decree dated 3.7.2001 which has decreed the suit of the respondent/plaintiff for a sum of Rs. 1,00458.75 alongwith interest @ 18% per annum. One of the issues which was framed in the suit being issue No. 1 pertained to the territorial jurisdiction of the Courts at Delhi. This issue has been dealt with by the trial Court in the following manner:

"Issue No. 1

7. Defendants have disputed the territorial jurisdiction of this Court to entertain the present suit in view of clause 25 of the tender notice Ex.DW1/1 dated 24.4.93. Clause 25 of this tender notice reads as follows:

"25. All legal proceedings, if necessity arises to institute may by any of the parties (Government or contractor) shall have to be lodged in courts situated in Rajasthan and not elsewhere."

However, this clause cannot be invoked to outst the territorial jurisdiction of this court. Parties can enter into an agreement to confer jurisdiction in one of the court, if more than one court has the territorial jurisdiction to entertain the suit. In this case, the clause speaks of Rajasthan courts only. Therefore it is a vague clause. In the present case, part of cause of action did arise in Delhi. It is admitted by DW1 Shri Subhash Chander Saxena that agreement Ex.PW1/D1 was witnessed at Delhi by both the witnesses. He also admitted that this agreement Ex.PW1/D1 was forwarded by the plaintiff after execution at Delhi to the defendants under their letter dated 7.10.1993 which was received by the defendants at Jodhpur on 30.10.1994.

8. DW2 Shri Govind Ram Chaudhary in his statement on oath has deposed that stamp paper of agreement Ex.PW1/D1 was purchased at Delhi. He signed it as witness No. 1. Thus, it is clear that a part of cause of action arose in favour of the plaintiff and against the defendant at Delhi where the agreement Ex.PW1/D1 was executed and signed by the witnesses to the document of both the parties. Ld. counsel for the defendant during the course of arguments conceded that this court has the territorial jurisdiction to entertain the present suit.

9. Hence, I conclude that this court has the territorial jurisdiction to entertain the present suit. The issue is decided accordingly."

2. Learned counsel for the appellants argued that the trial Court has clearly erred in deciding this issue by holding that the Courts at Delhi had territorial jurisdiction inasmuch as the clause clearly provides for jurisdiction of the Courts in Rajasthan "and not elsewhere". Reliance is placed upon the decisions of the Supreme Court in the cases of A.B.C. Laminart Pvt. Ltd. and Anr. v. A. P. Agencies, Salem, AIR 1989 SC 1239 and R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., (1993) 2 SCC 130 to argue that once there is an expression of "and not elsewhere" the exclusive jurisdiction will vest with the Courts at Rajasthan and not at Delhi. It is argued that tender was sent to the plaintiff from Jodhpur and accordingly contract is concluded at Jodhpur in view of the decision of the Supreme Court in the case of Bhagwandas Goverdhandas Kedia v. M/s. Girdharilal Parshottamdas and Co., AIR 1966 SC 543.

3. I find that the argument as raised by the learned counsel for the appellants has force. In view of the agreed clause 25, the Courts at Delhi would have no territorial jurisdiction. The suit therefore could not have been instituted at Delhi and had to be filed in the competent Courts at Jodhpur where the contract was concluded, and in fact where it was also performed. I may note that supply in terms of the supply order was to be made at store yard of the appellants at Jodhpur as per clause 1 of the acceptance of tender.

4. The issue which then arises is what should be done in a case like the present where complete evidence has been recorded and the trial Court in fact came to a finding although wrongly that the Courts at