HASSANI STORES Vs. LARSEN AND TOUBRO LTD

JUDGEMENT

(1.) The appellant is the plaintiff in O.S. 27 of 1959 on the file of the Subordinate Judge, Ernakulam.

(2.) The plaintiff is a partnership firm carrying on business in Ernakulam and the defendant is Larsen & Toubro Ltd., having its Head Office at Bombay and one of its branch offices at Cochin The plaintiff placed an order with the defendant company for the supply of Dry Cleaning Machine. Contract Form No. 5612/dated 2/6-12-1957 evidences the terms of the contract between the parties. There was some delay in the supply of the machine and the defendant was able to despatch the machine by steamer only on 6-10-1958. The package was cleared by the plaintiff on 5-11-1958. The plaintiff alleges that on unpacking, it was found that the plant supplied was not a new one as contracted for, but a second-hand one. The suit is brought for the damages alleged to have been incurred by the plaintiff on account of the expenses incurred by the plaintiff in the purchase of anew dry-cleaning plant at an enormous increase in price and several other allied heads. According to the plaintiff the cause of action has arisen at Cochin where the defendant through their Cochin Branch is carrying on business and where the cause of action arose.

(3.) The defendant in his written statement raised a preliminary objection that the suit was not maintainable in the Ernakulam Court for want of jurisdiction in view of the express provision in the contract note No. 5612 whereby the plaintiff was bound to institute the suit in a court of competent jurisdiction situated in Bombay and nowhere else. By way of reply the plaintiff stated that the contract dated 2/6 -12 -1957 was only a provisional one subject to the plaintiff getting the import licence and that the contract had fallen through because the plaintiff informed the defendant that it was not possible for the plaintiff to get the import licence-The plaintiff would contend that the supply of the second-hand plant was in pursuance of a fresh offer made by the defendant on the 28th of April 1958 and accepted by the plaintiff by their letter dated 7th May 1958. Hence the provision contained in the contract note regarding the institution of suits did not apply to the subsequent contract in pursuance of which the plant was supplied & did not act as a prohibition to the institution of the suit in a court of competent jurisdiction where the cause of action arose. The plaintiff had also an alternative contention that even if it is found that the plant was supplied to him in pursuance of contract note No. 5612 the provision regarding suits is void and unenforceable as it offends S.28 of the Contract Act.