Parties cannot confer jurisdiction on a court which has none, but can prefer one court to the other when both have jurisdiction. Contractual terms, including jurisdiction clauses, are binding on the parties.

The court below by the order impugned in this revision petition found that it had jurisdiction to try the suit. This finding on issue No.1 raised in the suit is challenged in this revision by the defendant in the suit. The defendant is a firm carrying on business of transport of goods. The plaintiff is a firm doing business at Cochin and in the course of such business the plaintiff delivered goods to the defendant to consign it to Calcutta. According to the plaintiff when the goods were delivered to the defendant firm, they received also the freight payable by the plaintiff, but nevertheless when the goods reached Calcutta the defendant firm insisted upon freight being paid as if freight had not been received earlier and the plaintiff had to pay freight over again. Collection of such freight by the defendant is said to be wrongful and therefore the plaintiff has sued for recovery of the freight paid. There was also a claim for damages for delay in delivery of goods. The defendant while answering the plaint claim on the merits also contended that the court has no jurisdiction as the jurisdiction was only in the court at Calcutta. This was on the basis of condition No. 18 in the consignment note issued by the defendant to the plaintiff. The issue as to jurisdiction was heard as a preliminary issue and it is on that the court found that it had jurisdiction to try the suit.

2. It is now well settled that when there are more than one court which has jurisdiction to entertain a suit it is open to the parties to contract that the suit, if any, will be tried in any one of the courts which has jurisdiction. In that event the suit could be entertained only in such court. But it is not open to the parties to agree to have the suit entertained in a court which has no jurisdiction. Parties cannot by agreement confer jurisdiction on a court which has none, but parties can prefer one court to the other when both have jurisdiction. Therefore if the Calcutta court has jurisdiction, then, notwithstanding the fact that the suit can be filed at Cochin also, the defendant could insist that the suit should be filed in the Calcutta Court provided this is a term in the contract between the parties. Therefore the first question that we will have to consider is whether the Court in Calcutta has jurisdiction to entertain the suit and secondly, was it a term of the contract between the parties that the Calcutta Court should alone entertain the suit.

3. We have already referred to the allegations in the plaint. If it is the unlawful insistence on payment of freight over again that is the cause of action, then payment was made at Calcutta and cause of action did arise at Calcutta If the breach of the terms of the contract be the came of action, part of the cause of action under the contract arose in Cochin and part in Calcutta. Even the court below finds in its order that a part of the cause of action has arisen at Cochin and part in Calcutta, and the courts at Cochin and Calcutta have concurrent jurisdiction to entertain the suit.

4. The consignment note marked as Ext. B1 is seen issued in favour of the plaintiff by the defendant on 27-10-1970. It is noted on the said note that "the goods are subject to the terms and conditions printed overleaf" and in the back of the note terms and conditions are printed. The last of the conditions, namely condition No. 18 is:

"18. The court in Calcutta City alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport."

5. In the case of a contract signed by the parties the terms therein are necessarily binding on them and there is no question of notice to parties in such a case. But in a case where the terms on the basis of which an offer is accepted are embodied in a document issued by the acceptor to the offerer the question would necessarily be whether the terms have been incorporated in the note of acceptance in such a manner as to en