UNITED CLEARING Vs. STAR CEMENT LTD.

JUDGEMENT

(1.) This section 11 application is opposed by the respondent on the ground that this court does not have territorial jurisdiction. Mr. Banerjee for the respondent relies on clause 20 of the agreement between the parties described as the jurisdiction clause. It says that the court at Guwahati shall only have the jurisdiction to entertain any case arising out of the two agreements both dated 11th March, 2014 between the parties.

(2.) To avail of the benefit of the forum selection clause, it is essential that the forum chosen must otherwise have jurisdiction to entertain, try and determine the case. If for example, a party to an agreement can file a suit in more than one court, by the forum selection clause the parties may be limited to chosen one of those courts and filing the case there. But that particular court cannot be one without jurisdiction and must have natural jurisdiction over the subject matter of the dispute.

(3.) Mr. Justice R. M. Lodha in Swastik Gases P. Ltd. v. Indian Oil Corporation Ltd.; reported in 2013 (9) SCC 32 after discussing all the decisions on the point remarked ; "It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend section 28 of the Contract Act in any manner."