R. B. Misra, J. - (1.) (for self and for J. M. L. Sinha, J.) :-The present appeal is directed against the order of the Additional District Judge, Gyanpur, district Varanasi, dated 10th April, 1978, disposing of the preliminary issue that the court at Gyanpur had no territorial jurisdiction to try the suit.
(2.) THE facts leading to this appeal are as follows : Plaintiff-appellant nos. 1 and 2 carried on business in partnership in the name known as "Rekha Warenhandels G.m. b. H & Co., K.G. 2, Hamburg, West Germany". Defendant respondent no. 1 carried on business of manufacturing Indian handknitted woollen carpets and rugs in the name and style of M/s. Satya Narain Lal & Sons, Bhadohi, district Varanasi. THE plaintiffs entered into a contract through one Sri M. P. Ramchandran on 9th of January, 1973 with the defendants for the purchase of Indian handknitted woollen carpets and rugs. THE details and particulars of the contract are given in paragraph 3 of the plaint. THE terms of the contract were incorporated in a letter-pad at the foot of which was noted : "All offers are without engagement unless otherwise stated. Subject to Hamburg Jurisdiction". THE terms of the contract were all incorporated in the earlier part of the letter-pad which was signed by the representatives of both the parties. Under the terms of the contract, the defendants were to supply certain quantities of carpets and rugs of certain size as contemplated in the contract. THE defendants failed to comply with the terms of the contract and eventually refused to send the goods. Under the terms of the contract the goods were to be delivered at Hamburg and the payment was to be made through some bank at Hamburg. In these circumstances the plaintiffs were obliged to file a suit against the defendants. The claim was resisted by the defendants. We are not concerned for the present with the other pleas taken by the defendants. We are only concerned with the plea of the defendants that the Court in India had no jurisdiction to try the suit. The learned Addl. Distt. Judge tried this preliminary issue and came to the conclusion that only the court at Humburg in Germany had jurisdiction to try the suit and the court in India had no jurisdiction to try the same. On this view he directed the return of the plaint for presentation to the proper court. The plaintiffs, being aggrieved by the order of the learned Additional District Judge, have filed the present appeal. The only point for consideration in this appeal is whether the court in India has jurisdiction to try the suit. The jurisdiction of the court is dealt with by Sec. 20 of the Civil Procedure Code. Section 20, in so far as material for the purposes of this case, reads : "Subject to the limitations aforesaid, 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 the 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."
(3.) OBVIOUSLY, in view of clauses (a) and (b) of Sec. 20, the defendants actually and voluntarily resided at the time of the suit or carried on business at Gyanpur. Therefore, the suit could be filed in the Court at Gyanpur. But, in view of clause (c) of Sec. 20, a part of cause of action may be said to have arisen at Hamburg inasmuch as the contract was for the supply of the goods at Hamburg and payment was also to be made through some bank at Hamburg. If the cause of action is one which had partly arisen in one court and partly in another, both the courts could have jurisdiction to try the suit. Therefore, in this view of the matter, even if it is accepted that the court at Hamburg could also try the suit, as it could be tried by the court of India, it shall be open to the parties to enter into such a contract whereby the Court at one place might be chosen as the forum (?) the suit. If the note at the foot-note of the letter pad is taken to be a part of the contract between the parties, the Court at Hamburg certainly had the jurisdiction and the suit could be filed there. Therefore, the real question for consideration is whether the endorsement made at the foot of the letter-pad was in the contemplation of the parties of the suit. Counsel for the appellants contends that it was never in contemplation of the parties that the Courts at Hamburg will have the jurisdiction, while Sri G. P. Bhargava, appearing for the respondents, contends that that was in contemplation of the parties and the agreement entered into between the parties was subject to the general condition that only the Courts at Humburg will have jurisdiction to try the suit. Both the parties have cited cases in support of their contentions.;