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1925 Indlaw MAD 293 Case Analysis Bench Where Reported Case Digest Cases Referred To Cases Citing this Case Legislation Cited
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Achratlal Kesavlal Mehta and Company v Vijayam and Company

Madras High Court 27 January 1925

Civil Revn. Petn. No. 674 of 1924 The Order of the Court was as follows : This revision petition arises out of a suit instituted in the Madras Small Causes Court, and the only question raised is whether the suit can be entertained by the Madras Court. The plaintiffs are a firm of merchants at Madras and the defendants are residents of Ahmedabad. The defendants' firm was engaged by the plaintiffs as their adat agents for the purpose of purchasing 80 bales of Ahmedabad dhoties from manufacturers at Ahmedabad and sending them to Madras. Exhibit I is the deed of agreement which regulated their relationships inter se. The suit is for the recovery of the amount alleged to be due to the plaintiffs in respect of the several dealings between the parties The defendants, besides denying the plaintiff's allegations on the merits, also set up the plea that the suit should not be entertained by the Small Causes Court at Madras and that it should be instituted at Ahmedabad. They relied for this purpose on Cl. 8 of Exhibit I, deed of agreement mentioned above, which runs as follows "In all legal disputes arising out of this contract Ahmedabad will be understood as the place where the cause of action arose.' The learned trial Judge interpreted the above clause to mean that the parties thereby stipulated that all suits in respect of the contract should be instituted at Ahmedabad. He held that this agreement did not offend against the provision in S.28 of the Indian Contract Act, 1872 , because no party thereto is restricted absolutely from enforcing his rights under or in respect of the contract by the usual legal proceedings in the ordinary tribunals inasmuch as the restriction is only partial. He accordingly decided that the

agreement was valid and must be given effect to and that the suit should, therefore, be brought in the Ahmedabad Court and in that view dismissed the suit. On application by the plaintiffs, the Full Bench of the Small Cause Court consisting of all the three Judges considered the question again; they agreed with the trial Judge in his interpretation of the above clause, but the majority of the Judges held that the agreement is void because it ousts the jurisdiction of the Madras Court. They, therefore, remanded the suit to the trial Judge for enquiry as to whether the cause of action arose either in whole or in part within the local limits of the jurisdiction of the Madras Court and directed him to proceed with the suit if he finds that it did so arise, or to return the plaint [under S. 19 (a) of the Presidency Small Cause Courts Act ] for presentation to the proper Court if he holds that it did not. The defendants have filed this revision petition against the decision of the Full Bench. In the first place I do not think it is right to construe Cl. 8 of Exhibit I so as to mean that no suit in respect of the contract shall be brought in the Madras Court at all under any circumstances. Supposing, for instance, the defendants at the time of the institution of the suit, happened to reside or carry on business at Madras, that clause-which deals only with the question as to where the cause of action shall be deemed to have arisen-even if given full effect to, could not obviously stand in the way of the suit being instituted at Madras. It is, therefore, not strictly correct to say that the agreement by itself has the effect of ousting the jurisdiction of the Madras Court But, even assuming that it has that effect that is to say, that the agreement means that all suits in respect of the contracts should be brought at Ahmedabad only and not at Madras, I do not think that it is void, because the Ahmedabad Court is also a Court which would normally have jurisdiction to entertain those suits. I am, of course, assuming for the purpose that part of the cause of action in this case has arisen at Madras as well, so that the Madras Court would, but for such agreement, have jurisdiction to entertain the suit. Where there are two Courts both of which would normally have jurisdiction to try the suit, I do not see why the parties should not be allowed to agree among themselves that a suit should be brought in one of those Courts and not in the other. Such an agreement does not, in my opinion, contravene the provision in S. 28 of theIndian Contract Act , because the plaintiff is not thereby restricted absolutely from enforcing his rights under or in respect of the contract by the usual legal proceedings in the ordinary tribunals as the restriction is only partial. The case Crawley y. Luchmee Ram (1) Agra 129 relied on by the Full Bench is clearly distinguishable. In that case it was held that a clause in a bill-of-lading whereby it was agreed that the questions arising on the bill should be heard by the High Court of Calcutta instead of the Court at Mirzapur which was the proper tribunal to try the question was void and could not be pleaded in bar of a suit brought in the Mirzapur Court. There, the Calcutta High Court had no jurisdiction to try the suit, the only Court having jurisdiction being the Mirzapur Court. The case was decided before the Indian Contract Act came into force; but I think the decision would be the same even under S. 28 of the Act; for as no amount of consent by the parties would confer jurisdiction on the Calcutta High Co art and as the Mirzapur Court was the only Court having jurisdiction, the agreement had the effect of absolutely restricting the parties thereto from enforcing their rights under the contract contained in the bill-of-lading by the usual legal proceedings in the ordinary tribunals. In the present case, as stated above, the agreement has not this effect. I would, therefore, hold that the agreement between the parties embodied in Cl. 8 of Exhibit 1 is valid and must be given effect to. It is not therefore open to the Madras Court of Small Causes to entertain the present suit. The plaint should be return for presentation to the proper Court and I direct accordingly. The defendants will get their costs up to date. Thomson Reuters homepage Customer support 1800 266 0288
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Home > Cases > High Court Judgments > Madras High Court > Full Text Judgments > By Year: 1944 > M > Document

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1944 Indlaw MAD 190 Case Analysis Bench Where Reported Case Digest Cases Referred To
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M. Sheik Dawood Rowther v South Indian Railway Company Limited

Madras High Court 7 March 1944 Civil Revn. Petn. No. 135 of 1943, to Revise Decree of Sub-Judge, Trichinopoly, In S. C. S. No. 64 of 1942 The Judgment was delivered by : HON'BLE JUSTICE LEACH (CJ) For some time before 1st July 1941, the exact period has not been disclosed to the Court the South Indian Railway Company, Ltd, , booked consignments of rice from stations on the company's line to Galle in Ceylon at a rate less than it had previously charged. The new rate was known as the concession rate and was the only rate ruling in the month of June 1941. On the 15th of that month, the company cancelled the concession rate and reverted to the old rate as from 1st July 1941. The change, was notified in the Local Rate Advice No. 6 of 1941, which was circulated to all stations on the company's system. In July 1941 the petitioner wished to consign two waggons of rice from. Tanjore to Galle and five waggons of this commodity from Adhirampatnam to the same destination. Rice so consigned is carried over the South Indian Railway system to Dhanushkodi where it is shipped to Thalamannar and then placed on the Ceylon Government Railway. The booking clerks at Tanjore and at Adhirampatnam accepted these consignments. Both of them forgot that the conesssion rate had been cancelled and consequently the consignments were accepted at the concession rate. The evidence of the station master at Adhirampatnam is to the effect that a statement of the new rates was hung up in the station premises for the information of the public. The petitioner's consignment from, that station was accepted on 11th July 1941. The consignment from Tanjore was accepted on, 1st July 1941, When the goods arrived at Galle the mistake had been discovered and the Ceylon Government Railway refused to deliver the goods to the consignee unless the difference between the concession rate and the ordinary rate was paid. The petitioner was compelled to comply with this demand, which meant the

disbursement of an additional sum of Rs. 766-10-9. As he considered that the further demand was unlawful, he filed a suit in the Court of the Subordinate Judge of Trichinopoly to recover the amount. The suit was numbered S. C. S. No. 64 of 1942. The Subordinate Judge held that by reason of cl. 5 of the conditions set out on the face of the forwarding note the petitioner was not entitled to recover and accordingly dismissed his suit. The petitioner has applied under S. 25, Provincial Small Cause Courts Act, 1887 , for revision of the decree passed by the Subordinate Judge. The South Indian Railway Company Ltd., and the Ceylon Government Railway were both made defendants in the suit and they are the respondents in this petition. They contend that the decision of the Subordinate Judge is right, but they say that in any event the petitioner was precluded from suing by reason of Condition No, 8 printed on the back of the forwarding note. Condition No, 5 on the face of the document reads as follows : "I agree that the railway company have the right of re-measurement, re-weighment, reclassification and re-calculation of rates, terminals and other charges at the place of destination, and of collecting before the goods are delivered any amount that may have been omitted or under-charged." Obviously the demand for the additional amount was not based on re-measurement or re-weighment, The respondents claim that it is based on a re-classification and recalculation of rates. numerous cases have been referred to in the course of the arguments on this question but we do not consider it necessary to discuss them. In our opinion, this is clearly not a case of reclassification or of re-calculation of rates. There was only one class of rice and the arithmetic was correct. The mistake was in charging a rate which had been cancelled instead of charging the rate which had been prescribed, and the only rate which could be lawfully charged. Therefore, if the case fell to be decided on Condition No. 5 of the conditions on the face of the forwarding note, the consignor's case would be well-founded; but we consider that the railways are entitled to judgment by reason of Condition No. 8 of the conditions printed on the reverse of the document. There is a prescribed form of forwarding note. It is addressed to the South Indian Railway Company Ltd., and commences with these words : "Please receive the undermentioned goods, and forward by goods train to . . . on . . . . Railway as consigned below, and subject to the following conditions, which are accepted by me, namely, . . , " Then are set out six conditions. Below the conditions are columns for the insertion by the consignor of the particulars required by the Railway, Having inserted the particulars the consignor is required to sign this statement : "I do hereby certify that I have satisfied myself that the description, marks, value and weight or quantity of goods consigned by me have been correctly entered in this Forwarding Note, and I agree to be bound by the conditions printed above and at the back of this Forwarding Note; and on the railway receipt granted for these goods." The petitioner filled in the required particulars and appended his signature as required. On the back of the forwarding note there are 11 conditions No. 8 of which reads as follows : "Goods booked to stations on the South Indian Railway or Railways worked by the South Indian Railway are carried subject to the rules and conditions printed from time to time in the railway company's Goods tariff, and goods booked to or over a foreign railway are subject to the rules and regulations and to wharfage and other charges in force on such railway." Sub-s. (1) of S. 55, Railways Act, 1890 , states that if a person fails to pay on demand made by or on behalf of a railway administration a rate, terminal or other charge due from him in respect of animals or goods, it may detain them. Sub-s. (5) says that, notwithstanding anything in the previous sub-sections, the railway administration may recover by suit a rate, terminal or other charge or balance thereof. Rule 15 of the rules published in the Goods Tariff of the South Indian Railway states that the weight, description and classification of goods, and quotation of rates as given in the railway receipt and forwarding note are merely inserted for the purpose of estimating the railway charges and the railway reserves the right of re-measurement, re-weighment,

re-classification and recalculation of rates, terminals and other charges and correction of "any other" errors at the place of destination and of collecting any amount that may have been omitted or undercharged. No admission is conveyed by a railway receipt that the weight as shown therein has been received or that the description of goods as furnished by the consignor is correct. The rules of the Ceylon Government Railway contain similar provisions. Under the contract entered into between the petitioner and the South Indian Railway Company Ltd., the petitioner agreed to pay the rate according to the company's goods tariff. By mistake the concession rate which had been cancelled was charged, but the contract provided for the rectification of the mistake. The petitioner must be deemed to have had notice of the cancellation of the concession rate and the re-imposition of the ordinary rate. The alteration in the rate had been notified in the ordinary way and a copy of the order revising the rate had been posted at the Adhirampatnam station. Inasmuch as the petitioner accepted the rate set forth in the Tariff (which means the amended tariff) and agreed to the rectification of any mistake he cannot object to the additional charge. Failure to read the conditions on the back of the forwarding note would not help him. The principle in (1877) 2 C, P. D. 416 would apply here. It has also to be remembered that the authority of a booking clerk to enter into such contracts is restricted. He cannot lawfully accept a consignment at a rate outside the tariff. Further the officials of the Ceylon Government Railway also had the right of refusing to deliver the goods to the consignee until the additional payment had been made. In these circumstances we hold that the petitioner's suit does not lie. We may add that supportfor this opinion is to be found in the decisions of the Allahabad High Court in 1940 ILR(All) 2123 and the judgment of Somayya J. in 1942-2 M. L. J. 348. The petition will be dismissed with costs. Thomson Reuters homepage Customer support 1800 266 0288
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