- 1 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 129 OF 2019 BETWEEN: ANDREW YULE & CO LTD., (A GOVERNMENT OF INDIA ENTERPRISES) HAVING ITS REGISTERED OFFICE AT YULE HOUSE, NO.8, DR. RAJENDRA PRASAD SARANI KOLKATTA - 70001 AND HEAD OFFICE AT YULE HOUSE, ELECTRICAL DIVISION, 2ND FLOOR, NO.8, DR. RAJENDRA PRASAD SARANI, KOLKATTA - 70001 REPRESENTED BY ITS MANAGER LEGAL MR. SUBHOMOY CHAKRABORTY S/O SRI. KALIDAS CHAKRABORTY AGED 41 YEARS. …PETITIONER (BY SRI. MANMOHAN P.N, ADVOCATE) AND: SMT. ASHA U SUVARNA W/O UDAYACHANDRA D. SUVARNA AGED ABOUT 58 YEARS, PROPRIETRIX, M/S TANVI CEMENT PRODUCTS, MANUFACTURERS OF PCC POLES AND SPUN PIPES, PB NO.300 JYOTHI BUILDING, MAIDAN ROAD, MANGALORE - 575 001. …RESPONDENT (BY SRI. DHEERAJ, ADVOCATE FOR SRI. SANATH KUMAR SHETTY K, ADVOCATE) Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 THIS CRP IS FILED UNDER SEC.115 OF THE CPC., AGAINST THE ORDER DATED 14.02.2019 PASSED ON ISSUE NO.4 IN OS NO.137/2004 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM., MANGALURU.,D.K., NEGATIVELY ANSWERING PRELIMINARY ISSUE NO.4. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri.P.N.Manmohan, learned counsel for the revision petitioner and Sri.Dheeraj, learned counsel appearing on behalf of Sri.Sanath Kumar Shetty K., learned counsel for the respondent. 2. Defendant in O.S.No.137/2004 is the revision petitioner challenging the order passed by the II Additional Senior Civil Judge and CJM, Mangaluru on I.A.No.4 dated 14.02.2019 whereby one of the defences taken by the defendant is that the Court has no jurisdiction, was tried as preliminary issue and held against the defendant. 3. Facts of the case which are utmost necessary for disposal of the revision petition are as under: - 3 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 3.1. A suit came to be filed by the plaintiff with the following prayer: “The plaintiff therefore prays for a judgment and decree granting the following reliefs: 1. Directing the defendant to pay a sum of Rs.25,22,811-00 as morefully set out in schedule ‘A’ herebelow together with future interest thereon at 18% per annum from this date till realization. 2. Grant costs of suit. 3. Grant such other and further reliefs. 3.2. In the plaint, it is contended that plaintiff is carrying on the business under the trade name M/s. Tanvi Cement Products in Mangaluru. Plaintiff is a manufacturer of PCC Poles and Spun Pipes. 3.3. Defendant company which is a Government of India Enterprise, had placed order for supply of pre- stressed concrete poles of specified specifications as per the following purchase orders: - 4 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 i. Bearing No.ESGTU/LP-2000/00113 dated 23.11.2000 ii. Bearing No.ESGTU/LP-2000/00200 dated 06.03.2001 3.4. As per the purchase order No.i, defendant had ordered for supply of 630 numbers of 9 meter long 300 kg working load pre-stressed concrete poles at the rate of Rs.1,550/- per pole besides Rs.450/- as transport and loading charges. 3.5. As per the purchase order No.ii, defendant has ordered 629 numbers of 9 meter long 300 kg working load pre-stressed concrete poles with Rs.1,550/- per pole besides Rs.450/- per pole towards the transportation and unloading charges. 3.6. Plaintiff submitted that as per the purchase orders, plaintiff at the first instance, supplied 600 numbers of pre-stressed concrete poles which had been duly taken delivery by the defendant after due inspection and tests. - 5 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 3.7. Plaintiff submitted bills of a aggregate value of Rs.12,00,000/- for the supply made between the period from 24.03.2001 to 29.05.2001. However, the payments were not made by the defendant promptly as per the accepted terms of the purchase orders. The defendant made payment of Rs.3,00,000/- as against sum of Rs.12,00,000/- that too after a long delay of 16 months which is in violation of the terms of the purchase order. Balance sum of Rs.9,00,000/- remained to be unpaid. 3.8. Plaintiff had also manufactured balance PSC poles and kept ready. Plaintiff was waiting for the defendant to take the delivery of the same, but defendant failed to take the delivery of the finished concrete poles of 30 numbers in respect of the purchase order No.1. 3.9. Plaintiff has been facing serious problems for keeping finished products inasmuch as the manufactured poles were occupying large space in the staking yard and plaintiff had also invested huge sum of money for manufacturing the concrete poles. - 6 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 3.10.Plaintiff further contended that there was a penalty clause of ½% for the delayed period subject to maximum of 5% per value of the undelivered portion. 3.11.It is also contended by the plaintiff that the purchase order stipulated payment of 100% payment within 30 days from the date of receipt of the manufactured poles by the defendant and plaintiff demanded the balance sum of Rs.9,00,000/- from the defendant. 3.12.Further, said sum remained unpaid for a period of more than two years and therefore, plaintiff demanded interest at the rate of 18% per annum for the delayed period. When there is no compliance, plaintiff repeated the demands and defendant made a part payment of Rs.1,00,000/- on 29.12.2001 and Rs.2,00,000/- on 14.08.2002. - 7 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 3.13.For the remaining amount, plaintiff filed the suit for recovery of sum of Rs.25,22,811/- as per the details furnished in the plaint. 4. Pursuant to the suit summons, defendant entered appearance and filed written statement denying the plaint allegations by contending that the suit is barred by limitation inasmuch as from the date of first purchase order, filing of the suit in the year 2004 is highly belated. Without prejudice to the said defence, defendant contended that the averments made in the plaint paragraphs are misleading and also denied that the supply of the material was not to the tune of Rs.12,00,000/- but it is to the tune of Rs.11,88,000/-. 5. He further contended that after payment of Rs.3,00,000/-, balance sum was only to the tune of Rs.8,80,000/- and in the meantime, defendant company became a sick company and was referred to Board for Industrial Finance and Reconstruction (BIFR for short). - 8 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 6. He denied the manufacturing of balance 30 poles as per the purchase order by the plaintiff. Defendant also took up specific contention that there is no cause of action to file the suit and Court at Mangaluru has no jurisdiction to entertain the suit in view of the specific clause in the purchase order and sought that the suit needs to be tried in Kolkata. 7. Based on the rival contentions of the parties, learned Trial Judge raised following issues: 1. Whether the plaintiff proves that the defendant had placed order for supply of working load prestressed concrete poles and is due for a sum of Rs.25,22,811/- at the rate of 18% p.a.? 2. Whether the suit is barred by limitation? 3. Whether the Court fees paid for the purpose of jurisdiction is proper? 4. Whether this Court has no jurisdiction to entertain the suit? 5. What order or decree? - 9 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 8. Among the issues, issue No.4 was sought to be tried as preliminary issue by filing preliminary issue No.4.. 9. Defendant predominantly relied on the contents of the purchase order pursuant to the application relief vide preliminary issue No.4. 10. Relevant portion of the purchase order reads as under: “PURCHASE ORDER TERMS AND CONDITIONS XXXXX And in the event of any dispute arises out of this agreement between the parties only the appropriate civil court in the city of Calcutta Shall have the exclusive jurisdiction to entertain, try and determine the said proceedings in exclusion of all other Courts.” 11. Learned Trial Judge by impugned order, dismissed the said application. 12. Being aggrieved by the same, defendant is before this Court, in this revision petition on following grounds: - 10 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 The trial court ought to have noticed that the purchase orders produced by the respondent along with the plaint clearly discloses that the dispute between the parties has to be resolved by the civil court in the city of Calcutta and that the said court shall have exclusive jurisdiction to the exclusion of all other courts. In light of the said clause contained in the purchase orders the court at Mangaluru does not have jurisdiction to entertain the suit. The said clause is binding on the parties and the trial court committed gross error in holding that it has jurisdiction to entertain the suit. The reasoning of the court below that the plaintiff is the resident of Mangalore and the defendant's branch office is situated within the jurisdiction of the Mangalore court and hence the court gets the jurisdiction to try the suit is unsustainable in law and on facts. The jurisdiction clause contained in the purchase orders cannot be over looked merely on the ground that the plaintiff is a resident of Mangalore or that the defendant has a branch office in Mangalore. The court below failed to notice that the Section 17 of the Indian Contact Act has no application on the case on hand. It is not the case of the - 11 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 plaintiff / Respondent that the defendant / petitioner has played fraud. The entire case of the petitioner regarding jurisdiction is based on the purchase order which is admitted by the respondent in her plaint. Hence question of fraud does not arise. It is also pertinent to note that the purchase order is an admitted document and it was acted upon by the parties. Hence the clause regarding jurisdiction of court in the said purchase order is binding on the plaintiff. The trial court has passed the order impugned without examining the materials on record in the right perceptive and committed gross error in passing the order impugned. The purchase order was placed by the petitioner and the respondent has accepted the purchase and it is the case of the respondent that the payments are not made to the respondent despite the respondent supplying the materials as per the purchase order. When such being the case section 16 to 20 of CPC have no application to the case on hand. This aspect of the matter has not been considered by the trial court. The trial court has failed to notice that the jurisdiction clause in an agreement makes the intention of the parties to the said agreement - 12 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 clear and in the case on hand the petitioner had placed purchase order and the parties have acted on it. The respondent cannot now contend otherwise. The reasoning of the court below that the plaintiff was not made known about the conditions and terms is unsustainable and is not even the case of the respondent. The respondent has produced the purchase orders along with the plaint and as such the trial court has made out a new case by holding that the respondent/plaintiff did not have the knowledge at the time of purchase order. The reasoning of the trial court is unsustainable in law and is liable to be set aside. The petitioner submits that the order impugned is contrary to the Judgment of the Hon'ble Apex Court in M/s. Swastik Gases Pvt. Ltd. reported in (2013)9 SCC 32. The trial court has failed to consider the aforesaid judgement and has mechanically rejected the contentions of the petitioner. Hence the order impugned is liable to be set-aside on the said ground alone. The trial court ought to have noticed that the purchase order was produced by the plaintiff and it is an admitted document. Hence it is clear that the plaintiff had knowledge of the terms and conditions in the said purchase order. The - 13 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 reasoning of the court below that the plaintiff had no knowledge of the terms and conditions in the said purchase order is factually incorrect. The reasoning of the court below is contrary to the pleadings of the parties and as such the order impugned is liable to be set-aside. The trial court ought to have noticed that mere fact that the plaintiff is resident of the Mangalore cannot be a basis to hold that the court at Mangalore has jurisdiction to try the suit. The defendant /petitioner has no branch office within the jurisdiction of the trial court. The petitioner is Government of India Enterprises and it has no branch office situated in Mangalore. Therefore the order impugned is highly arbitrary and illegal. The trial court has failed to notice that order impugned has far reaching consequences and will lead to multiplicity of proceedings. In view of the terms of the purchase order, the court below has no jurisdiction to try the suit and hence the court below ought to have answered the issue No.4 in affirmative. Non-application of mind by the trial court has lead to great loss and hardship to the petitioner. All these aspect of the matters have not been considered by the court below. Hence - 14 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 the order impugned is unsuitable in law and is liable to be set-aside. 13. Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that the goods are to be delivered at Kolkata and therefore, the contract got concluded at Kolkata as per the terms of the purchase order and therefore, parties on their volition conferred the jurisdiction on the Courts at Kolkata exclusively and as such, the suit filed in Court at Mangaluru had no territorial jurisdiction to entertain the suit. 14. Said aspect of the matter is not taken note of by the learned Trial Judge by passing the impugned order resulting in miscarriage of justice. 15. To buttress his arguments, learned counsel for the revision petitioner places reliance on the judgment of the Hon’ble Apex Court in the case of A.B.C. Laminart Pvt. Ltd. v. A.P.Agencies reported in (1989) 2 SCC - 15 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 163 and in the case of Swastik Gases Private Limited v. Indian Oil Corporation Limited reported (2013) 9 SCC 32. 16. Relevant portion of both the cases are culled out hereunder: i. In the case of A.B.C. Laminart Pvt. Ltd. v. A.P.Agencies, paragraph Nos.13, 14 and 15 are culled out hereunder: “13. Under Section 20(c) of the Code of Civil Procedure subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier Section 7 of Act 7 of 1888 added Explanation III as under: “Explanation III.—In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely: (1) the place where the contract was made; - 16 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 (2) the place where the contract was to be performed or performance thereof completed; (3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.” 14. The above Explanation III has now been omitted but nevertheless it may serve as a guide. There must be a connecting factor. 15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit - 17 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors.” ii. In the case of Swastik Gases Private Limited v. Indian Oil Corporation Limited, paragraph Nos.32, 55 and 57 are culled out hereunder: - 18 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 “32. 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 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 - 19 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 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. 55. It will be seen from the above decisions that except in A.B.C. Laminart [A.B.C. Laminart (P) Ltd. v. A.P. Agencies, (1989) 2 SCC 163] 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 “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 clause concerned. 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, - 20 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 the exclusion clause would not have found a place in the agreement between the parties. 57. 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.” 17. Per contra, learned counsel for the respondent supports the impugned order. 18. Having heard the arguments of the parties in detail, this Court perused the material on record meticulously. - 21 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 19. On such perusal of the material on record, it is crystal clear that the purchase order does not mention as to how the purchase order came to be placed with the plaintiff company at Mangaluru. 20. Whether it was sent by post or by email or any representative of the defendant company personally visited Mangaluru for placing the purchase order is not forthcoming from the averments made in the written statement. 21. The defence taken by the defendant in the written statement with regard to the jurisdiction reads as under: “It is submitted that there is no cause of action for filing of the present suit and that this Hon’ble Court does not have jurisdiction to entertain the suit. It is submitted that the subject purchase orders if this suit clearly provide that any disputes pertaining thereto would be resolved by the Courts at Kolkata.” - 22 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 22. In other words, no particulars are forthcoming as to why the Courts at Mangaluru is not having the jurisdiction. 23. In support of the same, learned counsel for the revision petitioner places reliance on the terms of the purchase order as referred to supra. 24. As could be seen from the terms of the purchase order, no part of cause of action has taken place at Kolkata inasmuch as what is the portion of the transaction that has taken place at Kolkata is not mentioned either in the purchase order or in the written statement. 25. Further, the purchase order is placed in Mangaluru, portion of the amount is received in Mangaluru, manufacturing of the pre-stressed concrete electric poles has taken place at Mangaluru, loaded at Mangaluru, to be delivered to different places as per the purchase order and as directed by the defendant. - 23 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 26. Delivery having taken place at the respective places, the purchase order emanating from Kolkata alone would not confer the jurisdiction on the Courts at Kolkata in the natural course as per Section 16 to 20 of the Code of Civil Procedure. 27. As could be seen from the principles of law enunciated by the Hon’ble Apex Court in the case of A.B.C. Laminart Pvt. Ltd. and in the case of Swastik Gases Private Limited as referred to supra, if no part of cause of action has taken place in a particular place only the ground that where the defendant resides, parties by their volition, cannot invest a jurisdiction in the Courts where the defendant resides, even by way of contract. 28. If in a transaction, if two courts have got jurisdiction to try the suit, parties by volition, may invest the jurisdiction in a particular Court whereby the jurisdiction of other Court automatically gets excluded. - 24 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 29. In the case on hand, since no part of cause of action has taken place at Kolkata and for want of necessary pleadings, dismissing the preliminary issue No.4 by the Trial Court is just and proper though not happily worded and proper reasons are assigned in the impugned order. 30. Accordingly, this Court is of the considered opinion that the impugned order needs no interference that too in the revisional jurisdiction. 31. Admittedly, the transaction is of the year 2000- 2001 and till today, the plaintiff is yet to receive the value for the goods that has been supplied that too for a Government of India undertaking company. 32. Therefore, this Court is of the considered opinion that while dismissing the revision petition, a direction is also necessary to expedite the suit. 33. Hence, following: - 25 - HC-KAR NC: 2025:KHC:44113 CRP No. 129 of 2019 ORDER i. Civil revision petition is dismissed. ii. All contentions are kept open to be urged by the defendant in the pending suit. iii. Taking note of the fact that suit is of the year 2004; suit shall be expedited and disposed of as early as possible. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 48