- (1.) Both these applications being GA No. 72 of 2006 and GA No. 67 of 2006 are taken up for hearing. The application being GA No. 72 of 2006 has been taken out by the defendant No. 1 for dismissal of the suit, alternatively the plaint in C. S. No. 293 of 2005 be taken off the file or in the alternative, the plaint in C. S. No. 293 of 2005 be forthwith returned for filing in the appropriate Court. Another application being GA No. 67 of 2006 has been taken out by the plaintiff for interlocutory reliefs, which are set out hereunder :- (a) The respondent be directed to nominate a surveyor mutually agreed by the plaintiff for the purpose of sampling and analysis of the cargo being the subject-matter of Purchase Order No. 990083, dated 26th July, 2005 presently lying at the factory premises of the respondent at Newsprint Nagar, Kottayam, Kerala. (b) If necessary, a fit and proper person and/or agency be appointed as surveyor by this Hon'ble Court for the purpose of carrying out sampling and analysis of the cargo being the subject-matter of Purchase Order No. 99083, dated 26th July, 2005 presently lying at Newsprint Nagar, Kottayam; (c) Injunction restraining the respondent, its servants and agents from utilising, removing, consuming and/or dealing with the entire balance quantity of goods being the subject-matter of Purchase Order No. 990083, dated 26th July, 2005 presently lying at the factory premises of respondent at Newsprint Nagar, Kottayam, Kerala until completion of sampling and analysis in terms of prayers above; (d) Ad-interim order in terms of prayers above; (e) Cost of and incidental, to this application be paid by the respondent; (f) Such further order or orders be made and/or direction or directions be given as to this Hon'ble Court may seem fit and proper.
(2.) At the present moment the plaintiff wants ad interim order in terms of prayer (c). Though the plaintiffs application has been taken out in earlier point of time but the subsequent application is important one, as the point of jurisdiction has been taken formally. It is settled position of the law that before the Court grants any order of injunction, the question of jurisdiction, if raised, has to be decided first. As such, I invited Mr.Chatterjee to advance argument on the question of jurisdiction first and then to oppose the interlocutory relief asked for by the plaintiff/petitioner.
(3.) The plea of jurisdiction as canvassed by Mr. Chatterjee is that in the agreement there has been a forum selection clause as the parties have agreed keeping their eyes open to accept competent Court at Kottayam/Ernakulam. Mr. Chatterjee submits that when there has been an agreement, the plaintiff must go to that chosen forum and not to come to this Court. He submits the two places were chosen knowing fully well that the disputes if arise in future, the cause of action in relation to such future action might arise either in Ernakulam or in Kottayam because the defendants' registered office is situated at Kottayam and the goods imported were unloaded at the port of Ernakulam. According to him, these two places are the natural forum, as such the agreement is not contrary to the provisions of Section 28 of the Contract Act.;