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Madras High Court
RAMAPRASADA RAO,NATARAJAN
Nanak Chand Shadurain - Appellant
Versus
Tinnelvely-Tuticorin Electric Supply Co.Ltd., Calcutta - Respondent
Decided On : 01/18/1974
JURISDICTION - CONTRACT - OUSTER OF JURISDICTION - VALIDITY - INTERPRETATION - SECTION 21, CIVIL PROCEDURE CODE - WAIVER OF OBJECTION - CONSEQUENT FAILURE OF JUSTICE.
Fact of the Case:
The appellant, the defendant in a suit for refund of excess price paid for goods supplied, challenged the jurisdiction of the trial court, arguing that the contract between the parties contained a clause ousting the jurisdiction of all courts except those in Madras. The plaintiff, the respondent, contended that the clause was vague and ambiguous and that the appellant had waived the objection by participating fully in the trial without raising the issue of jurisdiction in a timely manner.
Finding of the Court:
The court held that the clause in the contract, which stated "All dealings are subject to Madras jurisdiction," was vague and ambiguous and did not clearly oust the jurisdiction of all courts except those in Madras. The court also found that the appellant had waived the objection by participating fully in the trial without raising the issue of jurisdiction in a timely manner. The court relied on Section 21 of the Civil Procedure Code, which provides that an objection as to the place of suing shall not be allowed by an appellate or revisional court unless it was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice.
Issues: 1. Whether the clause in the contract ousting the jurisdiction of all courts except those in Madras was valid and enforceable. 2. Whether the appellant had waived the objection to jurisdiction by participating fully in the trial without raising the issue in a timely manner. 3. Whether there was a consequent failure of justice as a result of the trial court's exercise of jurisdiction.
Ratio Decidendi: 1. A clause in a contract ousting the jurisdiction of all courts except those in a particular place is valid and enforceable if it is clear, unambiguous, and not vague. 2. An objection to jurisdiction based on such a clause may be waived by the party seeking to enforce it if that party participates fully in the trial without raising the issue in a timely manner. 3. In order to establish a consequent failure of justice, the party seeking to set aside the judgment of the trial court must show that it was prejudiced by the court's exercise of jurisdiction.
Final Decision: The court dismissed the appeal, holding that the appellant had not been prejudiced by the trial court's exercise of jurisdiction and that there was no consequent failure of justice.
RAMAPRASADA RAO, J. :- The defendant in O. S. No. 26 of 1966 on the file of the Court of the Subordinate Judge, Tuticorin, is the appellant. The plaintiff-respondent filed the suit alleging that it paid in excess to the defendant in the course of certain supplies of R. S. Joists for which orders were placed by the plaintiff with the defendant. It also included in the claim a sum of Rs. 210-70 towards demurrage charges which the plaintiff is said to have incurred due to the default on the part of the defendant, as also a sum of Rs. 410-41 towards bank charges which expense was also attributable to certain laches on the part of the defendant. It is common ground that under Ex. A-29 dated 17-6-1963 the defendant supplied towards order No. 1716/GL/2 dated 14-12-1961 placed by the plaintiff 265 pieces of R. S. Joists untested of a particular specification as detailed in the invoice and charged a sum of Rs. 31,861-17 as their price which included transporting and delivery charges.
Again, under Ex. A-30 dated 29-6-1963, 188 of such pieces were supplied by the defendant pursuant to the same order as above. In the invoices as above the defendant claimed that the foists were of a measurement of 5 inches X 3 inches whilst the plaintiff's case is that the Joists were of a dimension of 125 X 75 m. m. Under Exs. A-5 and A-7 the plaintiff made it clear that it has paid as claimed by the defendant in their invoices Exhibits A-29 and A-30 but that on later verification it were found that the R. S. Joists supplied by the defendant were of the dimension 125 m. m. X 75 m. m. and not 5 inches X 3 inches as billed by the defendant. As the price of the materials supplied has to be worked out on the weight and as a result of the misdescription as to the dimension of the joists, the weight mechanically was put up higher resulting in excess charging of the price for the materials supplied. The plaintiff made this position clear by comparing the weight of the materials supplied with the railway weight as per the railway receipt and claimed under those exhibits a refund of the excess sums so paid.
Incidentally it may be stated that there was another consignment which also suffered the same mistake and discrepancy and when a claim was made for refund of the excess price paid by mistake, the defendant, without any demur, refunded the same. As regards the two consignments which were the subject-matter of invoices Exs. A-29 and A-30 towards which refunds of the excess price paid were claimed by the plaintiff under Exhibits A-5 and A-7 defendant in response to an express demand made for such a refund under Ex. A-11, wrote to the plaintiff under Ex. A-13 inter alia stating "We have given instructions to our Accounts Department to refund the amount". In spite of the circumstances as above, the defendant would not refund the excess price paid. This resulted in the plaintiff issuing the suit notice Ex. A-23 dated 4-9-1964. It was confronted with a reply Ex. A-24 dated 3-10-1964 whereunder the defendant repudiated their liability to refund the amount claimed. The plaintiff has therefore come to Court claiming a sum of Rs. 6,556-78 being the excess price paid towards the supplies covered by invoice Ex. A-29 and sum of Rupees 4,912-18 towards such excess price covered by the invoice Ex. A-30. The plaintiff also included in the plaint two other claims, one for Rs. 210-70 representing the demurrage charges incurred by it on account of the negligence of the defendant, and the other for Rs. 410-41 towards bank charges.
In the written statement the defendant raised contention that under the express terms of the contract the dispute m respect of the said contract shall be adjudicated by the Courts at Madras alone and that therefore, the Subordinate Judge, Tuticorin, before whom the suit was instituted, had no jurisdiction to try and adjudicate upon it. But without prejudice to the above contention as to jurisdiction, the defendant, on merits denied their liability
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