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REPORTABLE

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.  5086      OF 2013

(Arising out of SLP(C) No. 5595 of 2012)

M/s. Swastik Gases P. Ltd.                … Appellant

   Vs.

Indian Oil Corp. Ltd.       … Respondent

JUDGMENT

R.M. LODHA, J.  

Leave granted.

2. The short  question that  arises for  consideration in this  appeal  by  

special  leave  is,  whether,  in  view  of  clause  18  of  the  consignment  agency  

agreement (for short, ‘agreement’) dated 13.10.2002,  the  Calcutta High Court  

has exclusive jurisdiction in respect  of  the application  made by the appellant  

under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, '1996  

Act’).   

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3. The above question arises in this way. The IBP Company Limited,  

which  has  now  merged  with  the  respondent-Indian  Oil  Corporation  Limited,  

hereinafter referred to as ‘the company’, was engaged in the business of storage,  

distribution  of  petroleum products  and  also  manufacturing  and  marketing   of  

various types of lubricating oils, grease, fluid and coolants. The company was  

interested to promote and augment its sales of lubricants and other products and  

was  desirous  of  appointing  consignment  agents.  The  appellant,  M/s.  Swastik  

Gases Private Limited, mainly deals in storage, distribution of petroleum products  

including  lubricating  oils  in  Rajasthan  and  its  registered  office  is  situated  at  

Jaipur.  An agreement was entered into between the appellant and the company  

on 13.10.2002 whereby the appellant was appointed the company’s consignment  

agent for marketing lubricants at Jaipur (Rajasthan).   There is divergent stand of  

the parties in respect of the place of signing the agreement. The company’s case  

is that the agreement has been signed at Kolkata while the appellant’s  stand is  

that it was signed at Jaipur.

4. In or about November, 2003,  disputes arose between the parties as  

huge  quantity  of  stock  of  lubricants  could  not  be  sold  by  the  appellant.  The  

appellant requested the company to either liquidate the stock or take back the  

stock and make payment thereof to the appellant. The parties met several times  

but the disputes could not be resolved amicably.

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5. On 16.07.2007, the appellant sent a notice  to the company claiming  

a sum of Rs.18,72,332/- under diverse heads with a request to the company to  

make payment of the above amount failing which it was stated that the appellant  

would pursue appropriate legal action against the company.

6. Thereafter, on 25.08.2008 another notice was sent by the appellant  

to the company invoking arbitration clause wherein name of a retired Judge of  

the High Court was proposed as the appellant’s arbitrator.  The company was  

requested to name their arbitrator within thirty days failing which it was stated  

that the appellant would have no option but to proceed under Section 11  of the  

1996  Act.

7. The  company  did  not  nominate  its  arbitrator  within  thirty  days  of  

receipt  of  the notice dated  25.08.2008 which led to  the appellant  making an  

application under Section 11 of the 1996 Act in the Rajasthan High Court for the  

appointment  of  arbitrator  in  respect  of  the  disputes  arising  out  of  the  above  

agreement.

8. The company contested the application made by the appellant, inter  

alia,  by raising a plea of lack of territorial jurisdiction of the Rajasthan High Court  

in the matter. The plea of the company was that the agreement has been made  

subject  to jurisdiction of  the courts  at  Kolkata and,  therefore,  Rajasthan High  

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Court lacks the territorial jurisdiction in dealing with the application under Section  

11.

9. In the course of hearing before the designate Judge, two judgments  

of this Court, one  A.B.C. Laminart1  and the other  Rajasthan State Electricity   

Board2 were cited. The designated Judge applied A.B.C. Laminart1 and held that  

Rajasthan  High  Court  did  not  have any  territorial  jurisdiction  to  entertain  the  

application under Section 11 and dismissed the same while giving liberty to the  

appellant to file the arbitration application in the Calcutta High Court. It is from  

this order that the present appeal by special leave has arisen.

10. We have heard Mr. Uday Gupta, learned counsel for the appellant  

and Mr. Sidharth Luthra, learned Additional Solicitor General for the company.  

Learned Additional Solicitor General and learned counsel for the appellant have  

cited  many  decisions  of  this  Court  in  support  of  their  respective  arguments.  

Before we refer to these decisions, it is apposite that we refer to the two clauses  

of the agreement which deal with arbitration and jurisdiction.   Clause 17 of the  

agreement is an arbitration clause which reads as under:  

17.0.  Arbitration

If  any  dispute  or  difference(s)  of  any  kind  whatsoever  shall  arise  between  the  parties  hereto  in  connection  with  or  arising out of this Agreement, the parties hereto shall in good  

1 A.B.C. Laminart Pvt. Ltd. and Another v. A.P. Agencies, Salem; (1989) 2 SCC 163

2 Rajasthan State Electricity Board v. Universal Petrol Chemicals Limited; (2009) 3 SCC 107 Civil Appeal  No.______of  2013                                                                                                        Page 4 of 36 (Arising out of SLP(C) No.5595/2012)

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faith negotiate with a view to arriving at an amicable resolution  and settlement. In the event no settlement is reached within a  period  of  30  days  from  the  date  of  arising  of  the  dispute(s)/difference(s),  such  dispute(s)/difference(s)  shall  be  referred to 2 (two) Arbitrators, appointed one each by the parties  and the Arbitrators, so appointed shall be entitled to appoint a  third Arbitrator who shall act as a presiding Arbitrator and the  proceedings thereof shall be in accordance with the Arbitration  and Conciliation Act, 1996 or any statutory modification or re- enactment  thereof  in  force.  The  existence  of  any  dispute(s)/difference(s)  or  initiation/continuation  of  arbitration  proceedings shall not permit the parties to postpone or delay the  performance of or to abstain from performing their obligations  pursuant to this Agreement.

11. The jurisdiction clause 18 in the agreement is as follows:  

18.0.   Jurisdiction The  Agreement  shall  be  subject  to  jurisdiction  of  the  

courts at Kolkata.

12. The contention of the learned counsel for the appellant is that even  

though clause 18  confers  jurisdiction  to  entertain  disputes  inter  se parties  at  

Kolkata, it does not specifically bar jurisdiction of courts at Jaipur where also part  

of the  cause of action has arisen.  It is the submission of the learned counsel  

that except execution of the agreement, which was done at Kolkata, though it  

was signed at Jaipur, all other necessary bundle of facts forming ‘cause of action’  

have arisen at Jaipur. This is for the reason that: (i) The regional office of the  

respondent  –  company  is  situate  at  Jaipur;  (ii)  the agreement  was signed at  

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Jaipur;  (iii)  the  consignment  agency  functioned  from  Jaipur;  (iv)  all  stock  of  

lubricants was delivered by the company to the appellant at Jaipur; (v) all sales  

transactions took place at Jaipur; (vi) the godown, showroom and office of the  

appellant were all situated in Jaipur; (vii) various meetings were held between the  

parties at Jaipur; (viii) the company agreed to lift the stock and make payment in  

lieu thereof at a meeting held at Jaipur and (ix) the disputes arose at Jaipur. The  

learned counsel for the appellant would submit that since part of the cause of  

action  has arisen  within the jurisdiction of the courts at Jaipur and  clause 18  

does not expressly oust the jurisdiction of other courts, Rajasthan High Court had  

territorial jurisdiction to try and entertain the petition under Section 11 of the 1996  

Act.   He  vehemently  contended  that  clause  18  of  the  agreement  cannot  be  

construed as an ouster clause because the words like, ‘alone’, ‘only’, ‘exclusive’  

and ‘exclusive jurisdiction’ have not been used in the clause.

13. On the other hand, the learned Additional Solicitor General for the  

company stoutly defended the view of the designate Judge that from clause 18 of  

the agreement, it was apparent that the parties intended to exclude jurisdiction of  

all courts other than the courts at Kolkata.

14. Hakam Singh3 is one of the earlier cases of this Court wherein this  

Court  highlighted  that  where  two Courts  have  territorial  jurisdiction  to  try  the  

dispute between the parties and the parties have agreed that dispute should be  

3  Hakam Singh v. M/s. Gammon (India) Ltd;  (1971) 1 SCC 286 Civil Appeal  No.______of  2013                                                                                                        Page 6 of 36 (Arising out of SLP(C) No.5595/2012)

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tried  by only  one of  them,  the  court  mentioned  in  the  agreement  shall  have  

jurisdiction.  This principle has been followed in many subsequent decisions.  

15. In Globe Transport4  while dealing with the jurisdiction clause which  

read “the Court in Jaipur City alone shall have jurisdiction in respect of all claims  

and matters arising (sic) under the consignment or of the goods entrusted for  

transportation”, this Court held that the jurisdiction clause in the agreement was  

valid  and effective  and the  courts  at  Jaipur  only  had jurisdiction  and not  the  

courts at Allahabad which had jurisdiction over Naini where goods were to be  

delivered and were in fact delivered. 16. In  A.B.C. Laminart1, this Court  

was concerned with clause 11 in  the agreement which read, “any dispute arising  

out of this sale shall be subject to Kaira jurisdiction”. The disputes having arisen  

out of the contract between the parties, the respondents therein filed a suit for  

recovery of amount against the appellants therein and also claimed damages in  

the court of subordinate judge at Salem. The appellants,  inter alia, raised  the  

preliminary objection that the subordinate judge at Salem had no jurisdiction to  

entertain the suit as parties by express contract had agreed to confer exclusive  

jurisdiction in regard to all disputes arising out of the contract on the civil court at  

Kaira. When the matter reached this Court, one of the questions for consideration  

was whether the court at Salem had jurisdiction to entertain or try the suit.  While  

dealing with this question,  it was stated by this Court that the jurisdiction of the  

4  Globe Transport Corporation v. Triveni Engineering Works and Another ; (1983) 4 SCC 707 Civil Appeal  No.______of  2013                                                                                                        Page 7 of 36 (Arising out of SLP(C) No.5595/2012)

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court in the matter of contract would depend on the situs of the contract and the  

cause  of  action  arising  through  connecting  factors.  The  Court  referred  to  

Sections 23 and 28 of the Indian Contract Act, 1872 (for short, ‘Contract Act’) and  

Section 20(c) of the Civil Procedure Code (for short ‘Code’) and also referred to  

Hakam Singh3 and in paragraph 21 (pgs. 175-176) of the Report held as under:

“……When the clause is clear, unambiguous and specific  accepted notions of contract would bind the parties and unless  the absence of ad idem can be shown, the other courts should  avoid  exercising  jurisdiction.  As  regards  construction  of  the  ouster clause when words like ‘alone’, ‘only’, ‘exclusive’ and the  like have been used there may be no difficulty.  Even without  such words in appropriate cases the maxim ‘expressio unius est   exclusio  alterius’ — expression  of  one  is  the  exclusion  of  another — may be applied. What is an appropriate case shall  depend on the facts of the case. In such a case mention of one  thing may imply exclusion of another. When certain jurisdiction  is specified in a contract an intention to exclude all others from  its operation may in such cases be inferred. It has therefore to  be properly construed.”

Then, in paragraph 22(pg. 176) of the Report, this Court held as under:

“…..We have already seen that making of the contract was a  part of the cause of action and a suit on a contract therefore  could be filed at the place where it was made. Thus Kaira Court  would  even  otherwise  have  had  jurisdiction.  The  bobbins  of  metallic yarn were delivered at the address of the respondent at  Salem which, therefore, would provide the connecting factor for  court at Salem to have jurisdiction. If out of the two jurisdictions  one was excluded by clause 11 it would not absolutely oust the  jurisdiction of the court and, therefore, would not be void against  public policy and would not violate Sections 23 and 28 of the  Contract Act. The question then is whether it can be construed  

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to have excluded the jurisdiction of the court at Salem. In the  clause ‘any dispute arising out of this sale shall be subject to  Kaira jurisdiction’ ex facie we do not find exclusionary words like  ‘exclusive’, ‘alone’, ‘only’ and the like. Can the maxim ‘expressio  unius  est  exclusio  alterius’   be  applied  under  the  facts  and  circumstances of the case? The order of confirmation is of no  assistance. The other general terms and conditions are also not  indicative of exclusion of other jurisdictions. Under the facts and  circumstances of the case we hold that while connecting factor  with  Kaira  jurisdiction  was  ensured  by  fixing  the  situs  of  the  contract  within  Kaira,  other  jurisdictions  having  connecting  factors were not clearly, unambiguously and explicitly excluded.  That being the position it could not be said that the jurisdiction of  the court at Salem which court otherwise had jurisdiction under  law through connecting factor of delivery of goods thereat was  expressly excluded……”

17. In  R.S.D.V. Finance5  the question that fell for consideration in the  

appeal was, in light of the endorsement on the deposit receipt  “subject to Anand  

jurisdiction”, whether the Bombay High Court had jurisdiction to entertain the suit  

filed by the appellant therein. Following A.B.C. Laminart1, this Court in paragraph  

9 (pgs. 136-137) of the Report held as under :

“We  may  also  consider  the  effect  of  the  endorsement  ‘Subject  to  Anand  jurisdiction’  made  on  the  deposit  receipt  issued by the defendant. In the facts and circumstances of this  case it cannot be disputed that the cause of action had arisen at  Bombay as the amount of Rs 10,00,000 itself was paid through  a cheque of the bank at Bombay and the same was deposited in  the bank account  of  the defendant  in the Bank of Baroda at  Nariman Point, Bombay. The five post-dated cheques were also  issued  by  the  defendant  being  payable  to  the  plaintiff  at  Bombay. The endorsement ‘Subject to Anand jurisdiction’ has  

5  R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. ;(1993) 2 SCC 130 Civil Appeal  No.______of  2013                                                                                                        Page 9 of 36 (Arising out of SLP(C) No.5595/2012)

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been  made  unilaterally  by  the  defendant  while  issuing  the  deposit receipt. The endorsement ‘Subject to Anand jurisdiction’  does not contain the ouster clause using the words like ‘alone’,  ‘only’, ‘exclusive’ and the like. Thus the maxim ‘expressio unius  est  exclusio  alterius’  cannot  be  applied  under  the  facts  and  circumstances of  the case and it  cannot  be held that  merely  because the deposit receipt contained the endorsement ‘Subject  to  Anand  jurisdiction’  it  excluded  the  jurisdiction  of  all  other  courts who were otherwise competent to entertain the suit. The  view taken by us finds support from a decision of this Court in  A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem.”

18. The question under consideration in Angile Insulations6 was whether  

the court of subordinate judge, Dhanbad possessed the jurisdiction to entertain  

and hear the suit filed by the appellant for recovery of certain amounts due from  

the first respondent. Clause 21 of the agreement therein read, “This work order is  

issued subject to the jurisdiction of the High Court situated in Banglaore in the  

State of Karnataka…..”.  This Court relied upon  A.B.C. Laminart1  and held that  

having regard to clause 21 of  the work order  which was legal  and valid,  the  

parties had agreed to vest the jurisdiction of the court situated within the territorial  

limit of High Court of Karnataka and, therefore,  the court of subordinate judge,  

Dhanbad  in  Bihar  did  not  have  jurisdiction  to  entertain  the  suit  filed  by  the  

appellant therein.

19. Likewise, in Shriram City7, the  legal position stated in Hakam Singh3  

was reiterated.  In that case, clause 34 of the lease agreement read “subject to  

6  Angile Insulations v. Davy Ashmore India Ltd. and Another; (1995) 4 SCC 153

7  Shriram City Union Finance Corporation Limited v. Rama Mishra; (2002) 9 SCC 613 Civil Appeal  No.______of  2013                                                                                                        Page 10 of 36 (Arising out of SLP(C) No.5595/2012)

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the provisions of clause 32 above it  is expressly  agreed by and between the  

parties hereinabove that any suit, application and/or any other legal proceedings  

with regard to any matter, claims, differences and for disputes arising out of this  

agreement shall be filed and referred to the courts in Calcutta for the purpose of  

jurisdiction”. This Court held that clause 34 left no room for doubt that the parties  

had expressly agreed between themselves that any suit, application or any other  

legal  proceedings  with  regard  to  any  matter,  claim,  differences  and  disputes  

arising out of this claim shall only be filed in the courts in Calcutta. Whilst drawing  

difference between inherent lack of jurisdiction of a court on account of some  

statute and the other where parties through agreement bind themselves to have  

their dispute decided by any one of the courts having jurisdiction, the Court said :

“9.……….It  is open for a party for his convenience to fix the  jurisdiction  of  any  competent  court  to  have  their  dispute  adjudicated by that court alone. In other words, if one or more  courts  have the jurisdiction to  try  any suit,  it  is  open for  the  parties to choose any one of the two competent courts to decide  their  disputes.  In  case  parties  under  their  own  agreement  expressly agree that their dispute shall be tried by only one of  them then the parties can only file the suit in that court alone to  which they have so agreed. In the present case, as we have  said,  through  clause  34  of  the  agreement,  the  parties  have  bound  themselves  that  in  any  matter  arising  between  them  under the said contract, it is the courts in Calcutta alone which  will have jurisdiction. Once parties bound themselves as such it  is not open for them to choose a different jurisdiction as in the  present  case by filing the suit  at  Bhubaneshwar. Such a suit  would be in violation of the said agreement.”  

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20. In Hanil Era Textiles8, this Court was concerned with the question of  

jurisdiction of court of District Judge, Delhi. Condition 17 in the purchase order in  

respect of jurisdiction read, “….. legal proceeding arising out of the order shall be  

subject to the jurisdiction of the courts in Mumbai.”  Following  Hakam Singh3  ,  

A.B.C. Laminart1  and  Angile Insulations6 , it was held in paragraph 9 (pg. 676) of  

the Report as under:

“Clause 17 says — any legal  proceedings arising  out  of  the  order shall be subject to the jurisdiction of the courts in Mumbai.  This clause is no doubt not qualified by the words like “alone”,  “only” or “exclusively”. Therefore, what is to be seen is whether  in the facts and circumstances of the present case, it  can be  inferred that the jurisdiction of all other courts except courts in  Mumbai is excluded. Having regard to the fact that the order  was placed by the defendant at  Bombay, the said order was  accepted by the branch office of  the plaintiff  at  Bombay,  the  advance payment was made by the defendant at Bombay, and  as per the plaintiff's case the final payment was to be made at  Bombay, there was a clear intention to confine the jurisdiction of  the courts in Bombay to the exclusion of all other courts. The  Court  of  Additional  District  Judge,  Delhi  had,  therefore,  no  territorial jurisdiction to try the suit.”

21. In  New  Moga  Transport9,  the  question  that  fell  for  consideration  

before this Court  was whether the High Court’s conclusion that the civil court at  

Barnala had jurisdiction to try the suit  was correct  or not? The clause in the  

consignment note read, “the court at head office city shall only be the jurisdiction  

8  Hanil Era Textiles Ltd.  v. Puromatic Filters (P) Ltd ; (2004) 4 SCC 671

9  New Moga Transport Co., through its Proprietor Krishanlal Jhanwar v. United India Insurance Co. Ltd. and  others; (2004) 4 SCC 677 Civil Appeal  No.______of  2013                                                                                                        Page 12 of 36 (Arising out of SLP(C) No.5595/2012)

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in respect of all claims and matters arising under the consignment at the goods  

entrusted  for  transport.”  Additionally,  at  the  top of  the consignment  note,  the  

jurisdiction has been specified to be with Udaipur court. This Court considered  

Section  20 of  the  Code  and following  Hakam Singh3  and Shriram City7,   in  

paragraph 19 (pg. 683) of the Report held as under :  

“19. The intention of the parties can be culled out from use of  the  expressions  “only”,  “alone”,  “exclusive”  and  the  like  with  reference to a particular court.  But the intention to exclude a  court's  jurisdiction should be reflected in  clear,  unambiguous,  explicit  and  specific  terms.  In  such  case  only  the  accepted  notions of contract would bind the parties.  The first  appellate  court was justified in holding that it is only the court at Udaipur  which had jurisdiction to try  the suit.  The High Court  did  not  keep the relevant aspects in view while reversing the judgment  of the trial court. Accordingly, we set aside the judgment of the  High Court and restore that of the first appellate court. The court  at Barnala shall return the plaint to Plaintiff  1 (Respondent 1)  with appropriate endorsement under its seal which shall present  it  within  a  period  of  four  weeks  from  the  date  of  such  endorsement of return before the proper court at Udaipur…..”

22. The question for consideration in  Shree Subhlaxmi Fabrics10,  was  

whether  city  civil  court  at  Calcutta  had  territorial  jurisdiction  to  deal  with  the  

dispute though condition 6 of the contract provided that the dispute under the  

contract  would be decided by the court  of  Bombay and no other courts.  This  

Court  referred to  Hakam Singh3,  A.B.C. Laminart1  and  Angile Insulations6  and  

then in paragraph 18 (pg. 713) and paragraph 20 (pg. 714) of the Report held as  

under : 10 Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia and Others; (2005) 10 SCC 704 Civil Appeal  No.______of  2013                                                                                                        Page 13 of 36 (Arising out of SLP(C) No.5595/2012)

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“18. In the case on hand the clause in the indent is very clear  viz.  “court  of  Bombay and no other court”.  The trial  court  on  consideration  of  material  on  record  held  that  the  court  at  Calcutta had no jurisdiction to try the suit.” xxx       xxx       xxx

“20.  In  our  opinion  the  approach  of  the  High  Court  is  not  correct. The plea of the jurisdiction goes to the very root of the  matter.  The  trial  court  having  held  that  it  had  no  territorial  jurisdiction  to  try  the  suit,  the  High  Court  should  have  gone  deeper into the matter and until  a clear finding was recorded  that  the  court  had  territorial  jurisdiction  to  try  the  suit,  no  injunction could have been granted in favour of the plaintiff by  making rather a general remark that the plaintiff has an arguable  case that he did not consciously agree to the exclusion of the  jurisdiction of the court.”

23. In  Harshad  Chiman  Lal  Modi11, the  clause  of  the  plot  buyer  

agreement read, “Delhi High Court or courts subordinate to it, alone shall have  

jurisdiction  in  all  matters  arising  out  of,  touching  and/or  concerning  this  

transaction.” This Court held that the suit related to specific performance of the  

contract and possession of immovable property and the only competent court to  

try such suit was the court where the property was situate and no other court.  

Since the property was not situated in Delhi, the Delhi Court had no jurisdiction  

though the agreement provided for jurisdiction of the court at Delhi. This Court  

found that the agreement conferring jurisdiction on a court not having jurisdiction  

was not legal, valid and enforceable.  

11 Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another;  (2005) 7 SCC 791 Civil Appeal  No.______of  2013                                                                                                        Page 14 of 36 (Arising out of SLP(C) No.5595/2012)

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24. In  Rajasthan  State  Electricity  Board2,  two  clauses  under  

consideration were clause 30 of the general conditions of the contract and clause  

7 of the bank guarantee.  Clause 30 of the general conditions of the contract  

stipulated, “the contract shall for all purposes be construed according to the laws  

of India and subject to jurisdiction only at Jaipur in Rajasthan courts only……”  

and clause 7 of the bank guarantee read, “all disputes arising in the said bank  

guarantee between the Bank and the Board or between the supplier or the Board  

pertaining  to  this  guarantee  shall  be  subject  to  the  courts  only  at  Jaipur  in  

Rajasthan”.   In  light  of  the  above  clauses,  the  question  under  consideration  

before this Court was whether Calcutta High Court where an application under  

Section 20 of the Arbitration Act, 1940 was  made had  territorial jurisdiction to  

entertain the petition or not. Following Hakam Singh3, A.B.C. Laminart1 and Hanil   

Era Textiles8 , this Court  in paragraphs 27 and 28 (pgs. 114-115) of the Report  

held as under:

“27.  The  aforesaid  legal  proposition  settled  by  this  Court  in  respect of territorial jurisdiction and applicability of Section 20 of  the  Code  to  the  Arbitration  Act  is  clear,  unambiguous  and  explicit.  The said position is  binding on both the parties who  were contesting the present proceeding. Both the parties with  their open eyes entered into the aforesaid purchase order and  agreements thereon which categorically provide that all disputes  arising  between  the  parties  out  of  the  agreements  would  be  adjudicated upon and decided through the process of arbitration  and  that  no  court  other  than  the  court  at  Jaipur  shall  have  jurisdiction to entertain or try the same. In both the agreements  in Clause 30 of the general  conditions of the contract  it  was  specifically mentioned that the contract shall for all purposes be  

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construed  according  to  the  laws  of  India  and  subject  to  jurisdiction  only  at  Jaipur  in  Rajasthan  courts  only  and  in  addition in one of the purchase order the expression used was  that the court at Jaipur only would have jurisdiction to entertain  or try the same.  28. In the light of the aforesaid facts of the present case, the  ratio  of  all  the  aforesaid  decisions  which  are  referred  to  hereinbefore would squarely govern and apply to the present  case  also.  There  is  indeed  an  ouster  clause  used  in  the  aforesaid  stipulations  stating  that  the  courts  at  Jaipur  alone  would have jurisdiction to try and decide the said proceedings  which  could  be  initiated  for  adjudication  and  deciding  the  disputes arising between the parties with or in relation to the  aforesaid  agreements  through  the  process  of  arbitration.  In  other words, even though otherwise the courts at Calcutta would  have territorial jurisdiction to try and decide such disputes, but in  view of the ouster clause it is only the courts at Jaipur which  would have jurisdiction to entertain such proceeding.”

Then, in paragraph 35 (pg. 116) of the Report, the Court held as under:

“35. The parties have clearly stipulated and agreed that no other  court, but only the court at Jaipur will have jurisdiction to try and  decide the proceedings arising out of the said agreements, and  therefore, it is the civil court at Jaipur which would alone have  jurisdiction to try and decide such issue and that is the court  which  is  competent  to  entertain  such  proceedings.  The  said  court being competent to entertain such proceedings, the said  court at Jaipur alone would have jurisdiction over the arbitration  proceedings and all subsequent applications arising out of the  reference.  The  arbitration  proceedings  have  to  be  made  at  Jaipur Court and in no other court.”

25. In  Balaji  Coke12 the  question  was,  notwithstanding  the  mutual  

agreement to make the high-seas sale agreement subject to Kolkata jurisdiction,  12  Balaji Coke Industry Private Limited v. Maa Bhagwati Coke Gujarat Private Limited ; (2009) 9 SCC 403 Civil Appeal  No.______of  2013                                                                                                        Page 16 of 36 (Arising out of SLP(C) No.5595/2012)

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whether it would be open to the respondent-company to contend that since a part  

of cause of action purportedly arose within the jurisdiction of Bhavnagar (Gujarat)  

Court, the application filed under Section 9 of the 1996 Act before the Principal  

Civil  Judge (Senior  Division),  Bhavnagar  (Gujarat)  could still  be maintainable.  

This question  arose in light of clause 11 of the agreement which contained an  

arbitration clause and read as under :

“In case of any dispute or difference arising between the parties  hereto or any claim or thing herein contained or the construction  thereof or as to any matter in any way connected with or arising  out  of  these  presents  or  the  operation  thereof  or  the  rights,  duties or liabilities of either party thereof, then and in every such  case the matter, differences or disputes shall be referred to an  arbitrator in Kolkata, West Bengal, India in accordance with and  subject to the provisions of the Arbitration and Conciliation Act,  1996, or any other enactment or statutory modifications thereof  for  the  time being in  force.  The place of  arbitration  shall  be   Kolkata.”

26. This Court held in para 30 (pg. 409) of the Report, that the parties  

had knowingly and voluntarily agreed that the contract arising out of the high-

seas sale agreement  would be subject  to Kolkata jurisdiction and even if  the  

courts in Gujarat also had the jurisdiction to entertain  any action arising out of  

the agreement, it has to be held that the agreement to have the disputes decided  

in  Kolkata by  an arbitrator  in  Kolkata was valid and respondent  had wrongly  

chosen  to  file  its  application  under  Section  9  of  the  1996  Act  before  the  

Bhavnagar court (Gujarat).

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27. The  question  in  Interglobe  Aviation13,  inter  alia,  was  whether  the  

Permanent Lok Adalat at Hyderabad had territorial jurisdiction to deal with the  

matter.  The standard terms which governed the contract  between the parties  

provided, “all disputes shall be subject to the jurisdiction of the courts of Delhi  

only”. The contention on behalf of the appellant before this Court was that the  

ticket related to travel from Delhi to Hyderabad. The complaint was in regard to  

delay at  Delhi  and,  therefore,  the cause of  action arose at  Delhi  and that  as  

contract  provided  that  the  courts  at  Delhi  only  will  have  jurisdiction,  the  

jurisdiction of other courts was ousted. This Court in paragraph 22 (pgs. 476-477)  

of the Report held as under :

“22. As per the principle laid down in A.B.C. Laminart [(1989) 2  SCC 163], any clause which ousts the jurisdiction of all courts  having  jurisdiction  and  conferring  jurisdiction  on  a  court  not  otherwise  having  jurisdiction  would  be  invalid.  It  is  now  well  settled that the parties cannot by agreement confer jurisdiction  on a court which does not have jurisdiction; and that only where  two  or  more  courts  have  the  jurisdiction  to  try  a  suit  or  proceeding, an agreement that the disputes shall be tried in one  of  such courts  is  not  contrary to  public  policy.  The ouster  of  jurisdiction of some courts is permissible so long as the court on  which exclusive jurisdiction is conferred, had jurisdiction. If the  clause had been made to apply only where a part of cause of  action accrued in Delhi,  it  would have been valid. But as the  clause provides that irrespective of the place of cause of action,  only courts at Delhi would have jurisdiction, the said clause is  invalid in law, having regard to the principle laid down in A.B.C.  Laminart  [(1989)  2 SCC 163].  The fact  that  in this case,  the  place of embarkation happened to be Delhi, would not validate a  clause, which is invalid.”

13  Interglobe Aviation Limited v. N. Satchidanand;  (2011) 7 SCC 463 Civil Appeal  No.______of  2013                                                                                                        Page 18 of 36 (Arising out of SLP(C) No.5595/2012)

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28. In a comparatively recent decision in A.V.M. Sales14, the terms of the  

agreement contained the clause, “any dispute arising out of this agreement will  

be subject to Calcutta jurisdiction only”.  The respondent before this Court had  

filed  a  suit  at  Vijayawada  for  recovery  of  dues  from the  petitioner  while  the  

petitioner had filed a suit for recovery of its alleged dues from the respondent in  

Calcutta High Court. One of the questions under consideration before this Court  

was whether the court at Vijayawada had no jurisdiction to entertain the suit on  

account  of  exclusion  clause  in  the  agreement.  Having  regard  to  the  facts  

obtaining  in  the  case,   this  Court  first  held  that  both  the  courts  within  the  

jurisdiction of Calcutta and Vijayawada had jurisdiction to try the suit. Then it was  

held that in view of the exclusion clause in the agreement,  the jurisdiction of  

courts at Vijayawada would stand ousted.  

29. Section 11(12)(b) of the 1996 Act provides that where the matters  

referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an arbitration  

other  than  the  international  commercial  arbitration,  the  reference  to  ‘Chief  

Justice’  in  those sub-sections shall  be construed as a reference to the Chief  

Justice  of  the  High  Court  within  whose  local  limits  the  Principal  Civil  Court  

referred to in Section 2(1)(e) is situate, and where the High Court itself is the  

court referred to in clause (e) of sub-section (1) of Section 2, to the Chief Justice  

of  that  High Court.  Clause (e)  of  sub-section (1)  of  Section 2 defines ‘Court’  14  A.V.M. Sales Corporation v. Anuradha Chemicals Private Limited ; (2012) 2 SCC 315 Civil Appeal  No.______of  2013                                                                                                        Page 19 of 36 (Arising out of SLP(C) No.5595/2012)

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which means  the  principal  Civil  Court  of  original  jurisdiction  in  a  district,  and  

includes  the  High  Court  in  exercise  of  its  ordinary  civil  jurisdiction,  having  

jurisdiction to decide the questions forming the subject matter of the arbitration if  

the same had been the subject matter of a suit, but does not include any civil  

court  of  a  grade  inferior  to  such principal  Civil  Court,  or  any Court  of  Small  

Causes.

30. When it comes to the question of territorial  jurisdiction  relating to  

the  application  under  Section  11,  besides  the  above  legislative  provisions,  

Section 20  of  the  Code  is  relevant.  Section  20  of  the Code states that   

subject  to  the  limitations  provided  in  Sections  15  to  19,  every  suit  shall  be  

instituted in a Court within the local limits of whose jurisdiction (a) the defendant,  

or  each  of  the  defendants  where  there  are  more  than  one,  at  the  time  of  

commencement  of  the  suit,  actually  and  voluntarily  resides,  or  carries  on  

business, or personally works for gain; or (b) any of the defendants, where there  

are more than one, at the time of the commencement of the suit, actually and  

voluntarily resides, or carries on business, or personally works for gain, provided  

that in such case either the leave of the court is given, or the defendants who do  

not  reside,  or  carry  on  business,  or  personally  work  for  gain,  as  aforesaid,  

acquiesce in such institution; or (c) the cause of action, wholly or in part arises.  

The explanation  appended to  Section  20  clarifies  that  a  corporation  shall  be  

deemed to carry on business at its sole or principal office in India or, in respect of  

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any cause of action arising at any place where it has also a subordinate office, at  

such place.

31. In the instant case, the appellant does not dispute that part of cause  

of action has arisen in Kolkata. What appellant says is that part of cause of action  

has also arisen in Jaipur  and,  therefore,  Chief  Justice of  the Rajasthan High  

Court or the designate Judge has jurisdiction to consider the application made by  

the  appellant  for  the  appointment  of  an  arbitrator  under  Section  11.  Having  

regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section  

20(c) of the Code, there remains no doubt that  the Chief Justice or the designate  

Judge of the Rajasthan High Court has jurisdiction in the matter. The question is,  

whether  parties by virtue of clause 18 of the agreement have agreed to exclude  

the  jurisdiction  of  the courts  at  Jaipur  or,  in  other  words,  whether  in  view of  

clause 18 of the agreement,  the jurisdiction of Chief  Justice of the Rajasthan  

High Court has been excluded. For answer to the above question, we have to  

see the effect of the jurisdiction clause in the agreement which provides that the  

agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that  

whilst providing for jurisdiction clause in the agreement the words like ‘alone’,  

‘only’, ‘exclusive’ or ‘exclusive jurisdiction’ have not been used but this, in our  

view, is not decisive and does not make any material difference.  The intention of  

the parties - by having clause 18  in the agreement  – is clear and unambiguous  

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that the courts at Kolkata shall have jurisdiction  which means that the courts at  

Kolkata  alone  shall  have  jurisdiction.  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.

32. The above view finds support  from the decisions of  this  Court  in  

Hakam Singh3, A.B.C. Laminart1, R.S.D.V. Finance5, Angile Insulations6, Shriram  

City7, Hanil Era Textiles8 and Balaji Coke12.

33. In view of the above, we answer the question in the affirmative and  

hold that the impugned order does not suffer from any error of law.   

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34. Civil appeal is, accordingly, dismissed with no order as to costs. The  

appellant shall be at liberty to pursue its remedy under Section 11 of the 1996  

Act in the Calcutta High Court.

……………………….J. (R.M. Lodha)

……………………….J.

        (Kurian Joseph)

NEW DELHI  

JULY 03, 2013.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5086          OF 2013 (Arising out of SLP (CIVIL) NO. 5595 OF 2012)

M/s Swastik Gases P. Ltd.           ...  Appellant

Versus

Indian Oil Corporation Ltd.           ... Respondent

J U D G M E N T

Madan B. Lokur, J.

1.  Leave granted.

2. While I agree with the conclusion arrived at by my learned  

Brother Justice Lodha, this judgment has been penned down to  

raise  the  question  –  is  it  really  necessary  for  this  Court  to  

repeatedly affirm the legal position  ad nauseam?  I believe the  

law on the subject is well settled and it is to nobody’s advantage  

if the same law is affirmed many times over.  

3. The clause in the agreement that is sought to be interpreted  

reads as follows:

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- “The agreement shall be subject to jurisdiction of the Courts  at Kolkata.”

4. In  my  opinion,  the  very  existence  of  the  exclusion  of  

jurisdiction  clause  in  the  agreement  would  be  rendered  

meaningless were it not given its natural and plain meaning. The  

use of words like “only”, “exclusively”, “alone” and so on are not  

necessary to convey the intention of the parties in an exclusion of  

jurisdiction clause of an agreement.  Therefore, I agree with the  

conclusion  that  jurisdiction  in  the  subject  matter  of  the  

proceedings vested, by agreement, only in the Courts in Kolkata.

5. The  facts  of  the  case  have  been  detailed  by  my learned  

Brother and it is not necessary to repeat them.  

6. Reference has been made to several decisions rendered by  

this Court and I propose to briefly advert to them.  

One set of decisions:  7. There  is  really  no  difficulty  in  interpreting  the  exclusion  

clause in the first set of decisions. The clause in these decisions  

generally uses the word “alone” and, therefore, it is quite obvious  

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that the parties have, by agreement, excluded the jurisdiction of  

courts -

other than those mentioned in the agreement. These decisions,  

along with the relevant clause, are as follows:

1. Hakam Singh v.  Gammon (India)  Ltd.,  (1971)  1  SCC 286: “Notwithstanding the place where the work under this  contract  is  to  be executed,  it  is  mutually  understood  and agreed by and between the parties hereto that this  Contract shall be deemed to have been entered into by  the parties concerned in the city of Bombay and the  court  of  law in the city  of  Bombay  alone shall  have  jurisdiction to adjudicate thereon.” (emphasis given)

It was held that only the courts in Bombay and not Varanasi had  

jurisdiction over the subject matter of dispute.  

2. Globe Transport  Corpn. v.  Triveni Engg. Works,   (1983) 4 SCC 707: “The Court in Jaipur City alone shall have jurisdiction in  respect of all claims and matters arising (sic) under the  consignment  or  of  the  goods  entrusted  for  transportation.” (emphasis given)

It was held that only the courts in Jaipur and not Allahabad had  

jurisdiction over the subject matter of dispute.  

3. Angile  Insulations  v.  Davy  Ashmore  India  Ltd.,   (1995) 4 SCC 153: “This work order is issued subject to the jurisdiction of  the  High  Court  situated  in  Bangalore  in  the  State  of  Karnataka.  Any  legal  proceeding  will,  therefore,  fall  

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within  the  jurisdiction  of  the  above  court  only.”  (emphasis given)

-

It was held that only the courts in Karnataka and not Dhanbad  

had jurisdiction over the subject matter of dispute.  

4. New  Moga  Transport  Co.  v.  United  India  Insurance Co. Ltd., (2004) 4 SCC 677: “The court at head office city [Udaipur] shall  only be  the  jurisdiction  in  respect  of  all  claims  and  matters  arising under the consignment at the goods entrusted  for transport.” (emphasis given)

It was held that only the courts in Udaipur and not Barnala had  

jurisdiction over the subject matter of dispute.  

5. Shree Subhlaxmi  Fabrics  (P)  Ltd.  v.  Chand Mal   Baradia, (2005) 10 SCC 704: “Dispute under  this  contract  shall  be decided by the  court  of  Bombay  and  no  other  courts.”  (emphasis  given)

It was held that only the courts in Bombay and not Calcutta had  

jurisdiction over the subject matter of dispute.  

6. Rajasthan  State  Electricity  Board  v.  Universal   Petrol Chemicals Limited, (2009) 3 SCC 107: “The  contract  shall  for  all  purposes  be  construed  according to the laws of India and subject to jurisdiction  only  at  Jaipur  in  Rajasthan  courts  only.”  (emphasis  given)

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It  was held that only the courts in Jaipur and not Calcutta had  

jurisdiction over the subject matter of dispute.  

7. A.V.M. Sales Corporation v. Anuradha Chemicals   Private Limited, (2012) 2 SCC 315:

- “Any  dispute  arising  out  of  this  agreement  will  be  subject to Calcutta jurisdiction only.” (emphasis given)

It  was  held  that  only  the  courts  in  Calcutta  and  not  

Vijaywada had jurisdiction over the subject matter of dispute.  

8. The  exclusion  clause  in  the  above  cases  is  explicit  and  

presents no difficulty in understanding or appreciation.

Another set of decisions: 9.  In  the second set  of  decisions,  the exclusion clause is  not  

specific  or  explicit  in as much as words like “only”,  “alone” or  

“exclusively” and so on have not been used. This has apparently  

presented some difficulty in appreciation.   

10. In A.B.C. Laminart v. A.P. Agencies, (1989) 2 SCC 163  the relevant clause read as follows:

“Any dispute arising out of this sale shall be subject to Kaira  jurisdiction.”

11. Despite the aforesaid clause, proceedings were initiated by  

the respondent in Salem (Tamil Nadu).  The appellant challenged  

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the jurisdiction of the Court at Salem to entertain the proceedings  

since the parties had agreed that all disputes shall be subject to  

the jurisdiction of the Courts in Kaira (Gujarat).  The Trial Court  

upheld  the  objection  but  that  was  set  aside  in  appeal  by  the  

Madras High -

Court which held that the Courts in Salem had the jurisdiction to  

entertain the proceedings.   

12. The  Civil  Appeal  filed  by  the  appellant  challenging  the  

decision of the Madras High Court was dismissed by this Court  

thereby  affirming  the  jurisdiction  of  the  Court  in  Salem  

notwithstanding the exclusion clause.   

13. While  doing  so,  this  Court  held  that  when  a  certain  

jurisdiction is specified in a contract, an intention to exclude all  

others from its operation may be inferred; the exclusion clause  

has to be properly construed and the maxim “expressio unius est  

exclusio alterius” (expression of one is the exclusion of another)  

may be applied.

14. Looking then to the facts and circumstances of the case, this  

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not clearly, unambiguously and explicitly excluded and therefore,  

the Court at Salem had jurisdiction to entertain the proceedings.

15. In R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass  

Works Ltd., (1993) 2 SCC 130,  the exclusion clause read as  

follows :  

-

“Subject to Anand jurisdiction.”

16. Proceedings were initiated by the appellant in the Ordinary  

Original  Civil  Jurisdiction  of  the  Bombay  High  Court.  The  

respondent questioned the jurisdiction of the Bombay High Court  

in view of the exclusion clause.  The learned Single Judge held  

that  the  Bombay  High  Court  had  jurisdiction  to  entertain  the  

proceedings.  However, the Division Bench of the High Court took  

the view that the Bombay High Court had no jurisdiction in the  

matter and accordingly dismissed the proceedings.

17. In appeal, this Court noted in paragraph 9 of the Report that  

the endorsement “Subject to Anand jurisdiction” had been made  

unilaterally  by  the  respondent.  Accordingly,  there  was  no  

agreement between the parties to exclude the jurisdiction of the  

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Bombay  High  Court.  Clearly,  this  decision  turned  on  its  own  

special facts.

18. In Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd.,   

(2004) 4 SCC 671 the exclusion clause read as follows:

“Any  legal  proceeding  arising  out  of  the  order  shall  be  subject to the jurisdiction of the courts in Mumbai.”

19. On a dispute having arisen, proceedings were instituted by  

the respondent in the Courts in Delhi.  This was objected to by the  

-

appellant but neither the Additional District Judge, Delhi nor the  

Delhi High Court accepted the contention of the appellant that the  

Courts in Delhi had no territorial jurisdiction in the matter.

20. In appeal, this Court referred to A.B.C. Laminart and after  

considering the facts and circumstances of the case inferred that  

the jurisdiction of all other Courts except the Courts in Mumbai  

was excluded. This inference was drawn from the fact that the  

purchase order was placed by the appellant at Mumbai and was  

accepted by the respondent at Mumbai.  The advance payment  

was made by the respondent at Mumbai and as per the case of  

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the  respondent  itself  the  final  payment  was  to  be  made  at  

Mumbai.

21. In  Balaji  Coke  Industry  Private  Limited  v.  Maa  

Bhagwati Coke Gujarat Private Limited, (2009) 9 SCC 403,  

the exclusion clause read as follows:

“In  case of  any dispute or  difference arising between the  parties hereto or any claim or thing herein contained or the  construction  thereof  or  as  to  any  matter  in  any  way  connected  with  or  arising  out  of  these  presents  or  the  operation thereof or the rights, duties or liabilities of either  party  thereof,  then  and  in  every  such  case  the  matter,  differences or disputes shall be referred to an arbitrator in  Kolkata, West Bengal, India in accordance with and subject  to  the  provisions  of  the  Arbitration  and  Conciliation  Act,  1996,  or  any  other  enactment  or  statutory  modifications  thereof for the time being in force.  The place of arbitration  shall be Kolkata.”

22. Notwithstanding  the  aforesaid  clause,  proceedings  were  

instituted by the respondent against the appellant in  Bhavnagar  

(Gujarat).  The  petitioner  in  this  Court  then  moved  a  Transfer  

Petition  under  Article  139-A(2)  of  the  Constitution  of  India  for  

transfer  of  the  proceedings  to  Kolkata.   While  allowing  the  

Transfer Petition, this Court drew an inference, as postulated in  

A.B.C. Laminart that the intention of the parties was to exclude  

the jurisdiction of Courts other than those in Kolkata. Civil Appeal  No.______of  2013                                                                                                        Page 32 of 36 (Arising out of SLP(C) No.5595/2012)

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23. Finally, in Shriram City Union Finance Corporation Ltd.   

v. Rama Mishra, (2002) 9 SCC 613, the exclusion clause read  

as follows:

“Subject to the provisions of clause 32 above it is expressly  agreed by and between the  parties  hereinabove that  any  suit,  application  and/or  any  other  legal  proceedings  with  regard to any matter,  claims,  differences and for  disputes  arising out of this agreement shall be filed and referred to  the courts in Calcutta for the purpose of jurisdiction.”

24. Proceedings  were  initiated  by  the  respondent  in  

Bhubaneswar (Odisha).  An objection was taken by the appellant  

that the Court in Bhubaneswar had no jurisdiction to entertain the  

proceedings.   However,  the objection was not accepted by the  

Trial Judge, Bhubaneswar. In appeal, the District Judge accepted  

the contention -

of the appellant that only the Courts in Kolkata had jurisdiction in  

the matter.  In a Civil Revision Petition filed before the Orissa High  

Court by the respondent, the order passed by the Trial Court was  

affirmed with the result that it was held that notwithstanding the  

exclusion  clause,  the  Civil  Judge,  Bhubaneswar  (Odisha)  had  

jurisdiction to entertain the proceedings.   

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25. In the Civil Appeal filed by the appellant in this Court, it was  

held  that  the exclusion clause left  no room for  doubt that  the  

parties expressly agreed that legal proceedings shall be instituted  

only in the Courts in Kolkata. It was also held that the parties had  

agreed that the Courts in Kolkata “alone” would have jurisdiction  

in the matter and therefore, the Civil Court, Bhubaneswar ought  

not  to  have  entertained  the  proceedings.  A  reading  of  the  

exclusion clause shows that it does not use the word “alone” but  

it was read into the clause by this Court as an inference drawn on  

the facts of the case, in line with the decision rendered in A.B.C.  

Laminart and  the  relief  declined  in A.B.C.  Laminart  was  

granted in this case.  

26. It  will  be  seen  from  the  above  decisions  that  except  in  

A.B.C.  Laminart  where  this  Court  declined  to  exclude  the  

jurisdiction of the Courts in Salem, in all other similar cases an  

inference was -

drawn  (explicitly  or  implicitly)  that  the  parties  intended  the  

implementation  of  the  exclusion  clause  as  it  reads  

notwithstanding  the  absence  of  the  words  “only”,  “alone”  or  

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“exclusively” and the like. The reason for this is quite obvious.  

The parties would not have included the ouster clause in their  

agreement were it not to carry any meaning at all.  The very fact  

that the ouster clause is included in the agreement between the  

parties conveys their clear intention to exclude the jurisdiction of  

Courts  other  than  those  mentioned  in  the  concerned  clause.  

Conversely, if the parties had intended that all Courts where the  

cause of action or a part thereof had arisen would continue to  

have jurisdiction over the dispute, the exclusion clause would not  

have found a place in the agreement between the parties.   

27. It is not necessary to refer to the decisions rendered by this  

Court in Harshad Chimanlal Modi v. DLF Universal Limited,   

(2005)  7  SCC 791  and InterGlobe Aviation Limited v.  N.  

Satchidanand, (2011) 7 SCC 463  since they deal with an issue  

that does not at all arise in this case. In this context it may only  

be  mentioned  that  the  appellant  in  the  present  case  did  not  

dispute -

that a part of the cause of action arose in Kolkata, as observed by  

my learned Brother Justice Lodha.

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Conclusion:

28. For the reasons mentioned above, I agree with my learned  

Brother  that  in  the  jurisdiction  clause  of  an  agreement,  the  

absence of words like “alone”, “only”, “exclusive” or “exclusive  

jurisdiction”  is  neither  decisive  nor  does  it  make  any  material  

difference  in  deciding  the  jurisdiction  of  a  court.  The  very  

existence  of  a  jurisdiction  clause  in  an  agreement  makes  the  

intention of the parties to an agreement quite clear and it is not  

advisable to read such a clause in the agreement like a statute. In  

the present case, only the Courts in Kolkata had jurisdiction to  

entertain the disputes between the parties.  

29. The  Civil  Appeal  is  dismissed,  as  proposed,  leaving  the  

appellant to pursue its remedy in Kolkata.   

.………………………J. New Delhi              (Madan B.  Lokur) July 3, 2013

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