PATEL BROS Vs. VADILAL KASHIDAS LTD

JUDGEMENT

(1.) THIS is a revision petition filed at the instance of the plaintiffs in S. C. S. No. 7610 of 1956, on the file of the Small Cause Court at Madras. The suit is for recovery of a sum of Rs. 281/4/0 as damages for breach of contract for nondelivery of goods contracted to he sold by the defendants. The plaintiff, a firm carrying on business at Madras entered into a contract for the purchase of one bale of cotton cloth with the defendants. The defendant is a limited liability company carrying on business at Bombay. According to the plaintiffs delivery was to be made at Madras. The defendants contested the claim and one of the objections was that the Madras court had no jurisdiction over the subject-matter of the suit Beyond filing the contract Ex. P. 1, ex. P. 2 being a translation of a portion of Ex. P. 1, which is in Hindi, no other evidence was let in, in the case. The learned Judge held that a part of the cause of action arose at Madras and that therefore the suit would be entertainable by the Madras Court. But referring to a statement at the top of Ex. P. 1 which contained the words, "subject to Bombay jurisdiction," he held that there was a contract excluding the jurisdiction of the madras Court and investing the same only upon the Bombay Courts. In that view he held that the suit was not maintainable at Madras and returned the plaint for presentation to the proper court. The plaintiffs have come forward with this civil revision petition against that order. Ex. P. 1 a bill issued by the defendant to the plaintiff is stated to evidence the contract. At the top of the bill words "subject to Bombay jurisdiction" are mentioned and underlined. Thereafter the name of the defendant firm, address etc. , are given and the document runs as follows : Purchaser : Patel Brothers. The undernoted goods -- Ready/forward am sold on the conditions mentioned overleaf : 7 Godown Street, Madras, one Bale at Rs. 0/15/6 per yard. Medium. To be despatched to Madras by goods train. Then (it is signed by some person on behalf of the defendant. It is admitted that the contract was entered into at Bombay and the defendants ate carrying on business at Bombay, There is however a controversy as to where the cause of action or a part of it arose. Having regard to the fact that the contract was made at Bombay, it cannot be held that the whole of the cause of action arose at any other place. The only question is whether a Part of the cause of action arose at Madras. Mr. Keshavlal Tarwady appearing for the defendant has contended before me that no part of the cause of action arose at Madras and that the finding of the lower Court in that regard is erroneous. I am unable to agree with this contention. There is nothing to indicate in the contract itself that the delivery was to he made at bombay. The document stated that the goods were to be dispatched to Madras and specific mention is also made to "no. 7, Godown Street, Madras. " presumably that was the place where the goods were to be consigned. There is no evidence as to how the price was to be realised by the plaintiffs. The usual procedure followed by the merchants is despatch the goods and then send a railway receipt to their own bankers who would collect the money against the delivery of the railway receipt. In such a case the property does not ordinarily pass to the purchaser before he paid the money. There is no evidence in the case as to the method adopted for tho payment of the price. Nor is there any evidence to show as to when the pro- perties in the goods were, intended to pass to the buyer. The averments in the plaint would seem to suggest that the delivery was intended to be at Madras. That is consistent with the terms of Ex. P. 1. Mr. Keshavlal Tarwady refers me to paragraph 3 of the plaint in this connection and says that it should be implied that delivery was intended to be at Bombay. There is no warrant either in the pleading plaint or in the evidence for such a suggestion. Paragraph 3 of the plaint does not either expressly or impliedly admit that delivery was intended to take place at Bombay. I am, therefore, of the opinion that the learned Small Cause Judge is right when he held that part of the cause of action arose at Madras. The question then is, whether under the agreement between the parties there is an exclusion of the jurisdiction of the madras Court. On behalf of the respondents reliance is placed upon the decision in hoosen Kasam Dada (India) Ltd. v. Motilal Padampat Sugar Mills Co. Ltd. , 1954-1 m. L. J. . 434. That was a case where the terms of the contract contained this clause

(2.) IN this view the order of the lower Court is not correct and is set aside. The suit will be entertained by the lower Court and disposed of according to law. There will be no orders as to costs,

(3.) ORDER set aside.