A jurisdiction clause in a contract is not binding unless there is evidence of the parties' agreement to the term.

Judgement

JUDGMENT :- The plaintiff has preferred this appeal.

2. The plaintiff is a registered partnership firm carrying on business at Cuttack with its head office at Aligarh. Defendant No. 1 is a common carrier who carries on business of transporting goods on hire or on payment of freight. Defendant No. 2 is the Cuttack branch of defendant No. 1. One M/s. Jethmal Ramkumar of Ranchi despatched 14 cases of washing soap through the defendants under receipt No. 9967 dated 27-5-71 for delivery of the same to the plaintiff at Cuttack. The plaintiff paid Rs. 93.30, the freight for transporting the said washing soap, to defendant No. 2 under money receipt No. 44621 on 11-6-71. Soon thereafter the plaintiff s man went to the godown of defendant No. 2 to take delivery of the said consignment. The facts stated so far are not disputed.

3. The plaintiff s case in short is that in the defendant s godown the plaintiff s man found some of the packing cases in completely broken condition and a substantial portion of the contents therein had been pilfered or removed. So he insisted on the defendants employees for open delivery of the said goods and to grant a shortage certificate as per the actual delivery. But as the defendants men refused to grant any shortage certificate, the plaintiff s man had to come back without taking delivery of the said goods. Thereafter the plaintiff itself or its lawyer sent registered letters to the defendants firm at Cuttack asking the latter to give open delivery of the said goods and to pay damages for the actual shortage, but defendant No. 2 instead of giving open delivery of the articles to the plaintiff, gave evasive replies and directed the latter to take delivery of the goods as they were on payment of demurrage, wharfage and other charges and to contact the different offices of the defendants at different places. As the defendants did not deliver the goods to the plaintiff by taking evasive pleas, the plaintiff was obliged to file the present suit.

4. Defendant No. 1 did not contest the suit and was set ex parte.

Defendant No. 2 in its written statement refuted all the averments in the plaint. According to this defendant, the plaintiff s allegations are all baseless and false; the consignment in question was in perfect condition and there was absolutely no breakage of or shortage in the same. It is also stated in the written statement that as per the terms and conditions mentioned in the consignment note (Ext. E) of the Transport Corporation of India on which the goods were consigned only a Civil Court in the city of Calcutta has the jurisdiction to entertain any suit in respect of any claim arising under that receipt, and the Civil Court at Cuttack has no jurisdiction to entertain any suit in this connection.

5. The trial court found that a consignment worth Rs. 700/- had been despatched by M/s. Jethmal Ramkumar of Ranchi to the plaintiff. A shortage of 68 pieces of washing soap was detected in the said consignment when it was in the defendant s godown at Cuttack. But defendant No. 2 did not grant any shortage certificate to that effect to the plaintiff though the plaintiff was entitled to the same. It found that the plaintiff was to get damages from the defendants only in respect of the said 68 pieces of washing soap, and its claim of Rs. 1400/- was not justified. After arriving at the said findings it at last held that in view of the terms of the contract between the parties in this respect, as seen from the consignment note Ext. E, the plaintiff s suit in respect of this matter was cognizable only in a civil court in Calcutta and not in any court at Cuttack. On the above ground of lack of jurisdiction of the court the suit was dismissed.

6. The appellate court has found that the Civil Court at Cuttack, within whose jurisdiction the cause of action arose in its entirety and where the contesting defendant resided and carried on business, has jurisdiction to try this suit and the plaintiff is not bound by con