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TMI Blog2018 (12) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... received at those places. * The supplies were made by the plaintiff in Andhra Pradesh, Assam, Chhattisgarh, Karnataka and other states outside West Bengal. * The invoices were issued by the plaintiff from its offices located at Nagpur and Raipur. A substantial number of the invoices required payments to be made in the aforesaid places. * The registered office of the defendant is located in Mumbai. Master data maintained with the Ministry of Corporate Affairs, Government of India shows that the registered office of the plaintiff is located outside the jurisdiction of this Court. 3. The most important fact according to the defendant is that the invoices on the basis of which the plaintiff has filed the suit contains a forum selection clause by which disputes pertaining to the agreement are required to be referred to either Raipur or Nagpur, to the exclusion of all other jurisdictions. The Clause mentioned in the invoices which the defendant relies on contains the specific words: "Subject to RAIPUR Jurisdiction Only". The invoices further mention the address of the plaintiff as being Agrasan Chowk, Raipur and also mention that "payment shall be made by RTGS/Cheque or Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to between the parties at its registered office within jurisdiction and payments having been made - and accepted- at the plaintiff's bank within the jurisdiction of this court. He fairly concedes that paragraph 3 of the plaint with regard to the location of the plaintiff's office is a misstatement of the correct factual position. He urges that the invoices cannot be the basis of a binding contract between the parties, unless mutually agreed upon, and neither can the exclusive jurisdiction clause therein determine the fate of the suit on the instant demurrer application. He suggests that the forum selected in the invoices was a new term incorporated but not agreed upon by the defendant and relies upon sections 2 and 7 of The Indian Contract Act, 1872 on the touchstone of proposal and acceptance ultimately cementing a binding contract between parties. He buttresses his argument by urging that unlike the invoices, the Purchase Orders do not mention any forum. I have considered the submissions of counsel appearing for the parties. 6. The decisions cited by Mr. Singh can be broadly divided into two categories; first, where from the materials on record, the court concluded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affirmation or statement made by one of the parties, as long as it is not shown that the statement has been accepted by the other party as a term or condition of the agreement, it cannot be held that there is an agreement to confer exclusive jurisdiction on any Court. Particular caution is necessary in regard to such a clause contained in a printed form, as in this case. Where the printed form is signed by both the parties or where a form printed by one party is signed by the other party and forwarded by the latter to the former and the printed form contains clear words conferring exclusive jurisdiction on a Court at any particular place or ousting jurisdiction of the Court at any other place, it may not be difficult to hold that the parties have agreed on such a term. Even in such cases, Courts must remember that people often sign order forms containing a good deal of printed matter, without caring to read what is printed. It cannot always be said that everything which is printed may be deemed to form part of the contract. Where a form printed by one party is signed only by that party and delivered to the other party, without anything more it will be difficult for the Court to hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit in the Calcutta High Court. 8. The principle can be simplified thus; parties can be bound to an agreement containing a clause conferring exclusive jurisdiction on certain courts, if by their conduct subsequent to such selection, it can be shown that the parties intended to give effect to the contract. The exception being where despite such a clause and a consensus to act by it, the cause of action arose wholly and overwhelming-ly in another jurisdiction and second, it would be oppressive to drag the parties to their chosen forum having regard to other factors. 9. Two of the decisions cited by Mr. Banerji for the defendant, hinge on the forum selection clause being circumvented by reason of extreme inconvenience caused to the parties (Isha Distribution House v. Aditya Birla AIR 2017 Cal 75) or the facts warranting filing a suit elsewhere on the ground of balance of convenience particularly where the entire evidence was found to be available at Madras and the expenses of calling the witnesses to Kolkata was held to amount to injustice on the said witnesses; The dictum followed by this Court in Karam Chand Thapar v. Inder Mohan Kapoor AIR 1972 Cal 82 was whether in acquiring jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racticality and common sense; where the evidence forming the basis of the dispute and the witnesses who would bring that evidence to light are located in a jurisdiction other than that agreed upon by the parties. A fourth exception would be where parties have concurred to confer jurisdiction of a Court which is otherwise not competent to try the proceedings. The second and the third exceptions are of course connected in that both would involve expenses of travel and avoidable hardship to either of the parties. But what really emerges as the fundamental basis in the gamut of decisions cited, is that, a forum selection clause is almost always challenged by the party who has filed a suit in derogation thereof. Hence, in such cases it is the defendant (or opponent) who invokes the forum selection clause to denude the Court of its jurisdiction to try the suit. The decisions cited by Counsel will therefore, have to be seen in the light of who is asserting the clause to confer exclusive jurisdiction on the court concerned. 12. From the facts and documents on record, there is no doubt that the agreement between the plaintiff and the defendant for sale and purchase of goods was entirely c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for payment having been received in the bank account of the plaintiff maintained at IDBI Bank, Park Street Branch within the jurisdiction of this Court. What needs to be seen therefore, is whether the oral agreement and payments being credited to the plaintiff within the jurisdiction of this Court outweighs the forum selection clause inserted by the plaintiff which determined the cause of action between the parties thereafter. The unambiguous words signifying the intention of the parties to confer exclusive jurisdiction on Raipur and Nagpur (to the exclusion of all other jurisdiction), would be a clear indicator of what the parties intended to be bound by. 13. Counsel for the plaintiff has urged there was no meeting of mind between the parties and hence the particular clause cannot be given any weightage. If this is taken to be true, one may ask what further evidence can be called for to show that the parties were in perfect sync to be bound by the agreement including a choice of forum to seek redress in case disputes arose under the agreement? No case has also been made out by the plaintiff to show that approaching the Courts in Raipur or Nagpur would be oppressive or that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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