SHRIDHAR VYAPAAR PVT. LTD. Vs. GAMMON INDIA LTD

JUDGEMENT

(1.) The appeal arises out of an order rejecting a plaint - or, more appropriately, revoking the leave granted under Clause 12 of the Letters Patent - primarily, on the ground that the bills raised by the appellant-plaintiff on the defendant provide for a forum selection clause.

(2.) The principal contention of the appellant is that since there was no specific agreement between the parties regarding any choice of forum, the mere fact that the printed form of the plaintiff's bills indicated the Courts at a particular city to be the chosen forum, would not be binding on the defendant. At any rate, it is contended on behalf of the appellant that such purported forum selection clause was never agreed to or accepted by the defendant, whether expressly or otherwise.

(3.) The trial court proceeded primarily on the basis that since the defendant had made part payments, as claimed in the plaint, pursuant to the receipt of the bills raised by the plaintiff containing the forum selection clauses and the plaintiff accepted such part payments, the agreement between the parties as to the exclusive forum clause was crystalised. It is also observed in the judgment and order impugned dated August 9, 2018 that it may not lie in the mouth of the plaintiff to disown its own forum selection clause when the defendant appeared to have accepted the same by its conduct and it was the defendant who had come to enforce the same. The trial court reasoned that the plaintiff did not exclude the forum selection clause from its bills, nor did it otherwise indicate to the defendant that the forum selection clause contained in its bills would not apply.