Back
2019 Supreme(Tri) 20
IN THE HIGH COURT OF TRIPURA AT AGARTALA
Sanjay Karol, Arindam Lodh, JJ.
M/s Esquire Express & Courier Service and ors. – Petitioners
Versus
The Union of India, Represented by the General Manager, Northeast Frontier Railway and ors. – Respondents
W.P. (C) No.209 of 2018
Decided On : 12-09-2019
Important Points
Subject
Civil Law - Jurisdiction and Venue
Act Referred
CONTRACT ACT : S.28, S.23
Headnote
jurisdiction - ousting jurisdiction by agreement - Section 9, Section 20 of CPC - The court held that the parties can by an agreement confer jurisdiction upon a Court otherwise having jurisdiction, by ousting jurisdiction of other courts.
Fact of the Case:
The petitioners challenged a communication withholding their earnest money, claiming that the High Court of Guwahati did not have jurisdiction over the matter.
Finding of the Court:
The court found that the parties had agreed to confer jurisdiction upon the Court where the tender was to be opened and/or the agreement was to be signed, ousting the jurisdiction of other courts.
Issues: The main issue was whether parties by an agreement can oust jurisdiction of other Courts by conferring it to a particular place otherwise having jurisdiction.
Ratio Decidendi: The court applied Section 9 and Section 20 of CPC and various precedents to determine that parties can confer jurisdiction upon a Court otherwise having jurisdiction, by ousting jurisdiction of other courts.
Final Decision: The court dismissed the petition, holding that it did not have jurisdiction, but reserved liberty to the petitioners to file the same before the Court having appropriate jurisdiction. All issues on merit were left open.
Advocate Appeared:
For the Petitioner:Mr. S.M. Chakraborty, Sr. Advocate. Mr. Samar Das, Advocate.
For the Respondent:Mr. A. De, Advocate.
JUDGMENT :
Sanjay Karol, J.
The sole issue which arises for consideration in the present petition as to whether parties by an agreement can oust jurisdiction of other Courts by conferring it to a particular place otherwise having jurisdiction.
2. In the instant petition, petitioners lay challenge to Communication dated 02.01.2018, issued by the Senior Divisional Commercial Manager, Northeast Frontier Railway, Lumding Division, Lumding, a place falling within the territorial jurisdiction of the High Court of Guwahati, State of Assam.
3. The crux of the matter being that vide Notice Inviting Tender (in short, NIT) dated 24.07.2017, the Additional Divisional Railway Manager, Northeast Frontier Railway, Lumding Division invited proposals for running the Parcel Cargo Express Train (in short, PCET) in relation to which petitioners submitted their tender as also deposited earnest money amounting to Rs.50,00,000. The route on which the PCET was to run was from Agartala – (falling within the State of Tripura) Silchar – Chitpur (falling within the State of Assam) – Sakur Basti via Bareilly, Lucknow, Varanasi (falling within the State of Uttar Pradesh). The tender submitted by the petitioners was found not to be compliant and as such not considered favourably. However, the Railway authorities did not refund the amount of earnest money so deposited, for certain amounts were due from the petitioners as Demurrage Charges/Undercharges in relation to another PCET tender No.C/17 of 2012 dated 25.09.2012 of route Guwahati to Patel Nagar under execution by the petitioners. Since they failed to pay the same, the amount deposited as security deposit was withheld, which action was made known vide communication dated 02.01.2018 subsequent matter of challenge in the present petition.
4. It is a matter of record that in relation to earlier contract this Court does not have any jurisdiction, and that petitioners had themselves approached the High Court of Guwahati by way of W.P. (C) No.7726 of 2015, which stood disposed of with certain directions to the authorities for consideration of petitioners’ claims. Pursuant thereto, necessary consequential action was taken and as on the date of the filing of instant petition, the matter was pending consideration before different forums, other than the ones situated within the State of Tripura.
5. Insofar as the tender subject matter of the present petition is concerned (C/33 of 2017), parties agreed to and bind themselves, subjecting themselves to the jurisdiction of the place where the tender was to be opened and/or agreement was to be signed. The said Clause reads as under:
“22. The appropriate Court of the place, where the Tender will be opened and/or the lease Deed/Agreement in respect of the said tender will be signed by the both the parties, will alone have the jurisdiction to decide any dispute arising out of and in respect of the said Tender and/or lease Deed/Agreement as the case may be;
(emphasis supplied)
6. The instructions to the Tenderers also stipulated Clause 9, which reads as under:
“9. After finalization of tender, earnest money of all unsuccessful bidders would be refunded and in case of successful bidder, the EMD may be adjusted against the freight payable by the lease operator.”
7. In their response, the respondents have also highlighted the clause contained in tender notice No.C/01 of 2018 conferring jurisdiction exclusively on the High Court of Guwahati, Assam.
8. The act and conduct of the petitioners in understanding the terms of the tender document/NIT is evidently clear. It is a matter of record that the petitioners submitted their tender at Lumding (in the State of Assam) where also it was to be opened, under the jurisdiction of Courts situate in Assam. The earnest money was deposited and withheld, as a consequence of another contract, which was awarded and executed inter alia within the Court having jurisdiction of Courts in Assam. It had nothing to do with the State of Tripura. With the non-a
