A.V.M. SALES CORPORATIONversusM/S. ANURADHA CHEMICALS PVT. LTD.

                         [2012] 1 S.C.R. 318


A                  A.V.M. SALES CORPORATION
                                  v.
             MIS. ANURADHA CHEMICALS PVT. LTD.
           (Special Leave Petition (C) No.10184 of 2008)
                         JANUARY 17, 2012
B
         [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

        Contract Act, 1872:

c       ss. 23 and 28 - Two courts having jurisdiction to try a suit
  - Parties to an agreement mutually agreeing to exclude the
  jurisdiction of one court in preference to the other -
  Permissibility of, and if the same is violative of the provisions
  of ss. 23 and 28 - On facts, contract for supply of goods
0 between the parties and agreement to the effect that dispute
  between the parties would be subject to jurisdiction at place
   'C' - Suit for recovery filed by petitioner at place 'C' - On
  receiving summons, respondent filed a separate suit at place
   'V' - Recovery suit by respondent decreed and upheld by the
E High Court - On appeal, held: Though the courts at place 'V'
  along with the courts at place 'C' would have jurisdiction u/s.
  20 CPC to entertain and try a suit relating to and arising out
  of the agreement and the mutual understanding as part of the
  cause of action of the suit had arisen within the jurisdiction of
  both the said courts, such jurisdiction of the courts at place
F 'V' would stand ousted by virtue of the exclusion clause in the
  agreement - Decree passed by the civil judge at place 'V' and
  the judgment of the High Court set aside - Trial court at place
  'V' directed to return the plaint to the respondent to present
  the same before the appropriate court at place 'C'.
G
        ss. 23 and 28 - Contract in violation of ss. 23 and 28 -
    Permissibility of - Held: Parties to an agreement cannot
    contract against the statutory provisions.       ·

H                                318
    A.V.M. SALES CORPORATION v. ANURADHA                   319
              CHEMICALS PVT. LTD.
      Jurisdiction - Court having no territorial or pecuniary A
jurisdiction - If parties to an agreement, can confer jurisdiction
 on such court - Held: Parties cannot confer jurisdiction on a
 court which has no territorial or pecuniary jurisdiction to
 entertain a matter.
                                                                   B
      Cause of action - Meaning of - Held: Comprises a bundle
 of facts which are relevant for the de!ermination of the /is
 between the parties.

     Parties entered into an agreement at place 'C' for
supply of goods by respondent to petitioner. The parties C
also entered into an agreement that the dispute between
the parties would be subject to jurisdiction at place 'C'
only. Dispute arose between the parties. The petitioner
filed a recovery suit in the High Court at place 'C'. Upon
receiving summons, the respondent filed a separate suit D
at place 'V' and the respondent's suit was decreed.
Aggrieved, the petitioner filed a first appeal and the High
Court dismissed the same. Therefore, the petitioner filed
the instant Special Leave Petition.
                                                                  E
     Allowing the Special Leave Petition, the Court

     HELD: 1.1 Section 23 of the Contract Act, 1872
indicates what considerations and objects are lawful and·
what are not, including the considerations or objects of
an agreement, if forbidden by law. Section 28 of the Act, F
clearly spells out that any agreement in restraint of legal
proceedings is void. Basically, what Section 28 read with
Section 23 makes it very clear that if any mutual
agreement is intended to restrict or extinguish the right
of a party from enforcing his/her right under or in respect G
of a contract, by the usual legal proceedings in the
ordinary Tribunals, such an agreement would to that
extent be void. In other words, parties cannot contract
against a statute. [Paras 9 and 10] [326-D; 327-D]
                                                            H
    320     SUPREME COURT REPORTS              [2012] 1 S.C.R.


A        A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies,
    Sa/em AIR 1989 SC 1239: (1989) 2 sec 163: 1989 (2) SCR
    1; Angile Insulations vs. Davy Ashmore India Ltd. & Anr.
    (1995) 4 SCC 153: 1995 (3) SCR 443 ; Hanil Era Textiles
    Ltd. Vs. Puromatic Fillers (P) Ltd. AIR 2004 SC 2432: 2004
B   (1) Suppl. SCR 333 - referred to.

         1.2. As regards, the question as to whether the
    parties to an agreement can contract in violation of
    Sections 23 and 28 of the 1872 Act, the parties cannot
C   contract against the statutory provisions. The question
    whether the parties to an agreement can confer
    jurisdiction on a court which has no territorial or
    pecuniary jurisdiction to entertain a matter, is answered
    in negative. As regards the question, whether if two
    courts have jurisdiction to try a suit, can the parties to
D   an agreement mutually agree to exclude the jurisdiction
    of one court in preference to the other and as to whether
    the same would amount to violation of the provisions of
    Sections 23 and 28 of the Contract Act, was answered
    in the affirmative by the trial court and was upheld by the
E   High Court. [Para 6] [324-F-H; 325-A-B]

       1.3. The cause of action comprises a bundle of facts
  which are relevant for the determination of the lis
  between the parties. In the instant case, since the
F invoices for the goods in question were raised at place
  'V, the goods were dispatched from 'place 'V and the
  money was payable to the 'respondent or its nominee at
  place 'V', the same comprised part of the bundle of facts
  giving rise to the cause of action for the suit. At the same
G time, since the petitioner/ defendant in the suit had its
  place of business at place 'C' and the agreement for
  supply of the goods was entered into at place 'C' and the
  goods were to be delivered at place 'C', a part of the
  cause of action also arose within the jurisdiction of the
  courts at place 'C' for the purposes of the suit.
H
    A.V.M. SALES CORPORATION v. ANURADHA               321
              CHEMICALS PVT. LTD.
Accordingly, both the courts within the jurisdiction of the A
courts at place 'C' and 'V' had jurisdiction under Section
20 of the Code of Civil Procedure to try the suit, as part
of the cause of action of the suit had arisen within the
jurisdiction of both the said courts. [Para 8) [325-F-H; 326-
A-B]                                                          B

     1.4. Though the courts at place 'V' would also have
jurisdiction, along with the courts at place 'C' to entertain
and try a suit relating to and arising out of the.agreement
and the Mutual Understanding, such jurisdiction of the C
courts at place 'V' would stand ousted by virtue of the
exclusion clause in the agreement. [Para 15) [329-B-C]

    1.5. The decree passed by the Principal Senior Civil
Judge at place 'V' and the impugned judgment of the
High Court are set aside. The trial court at place 'V' is D
directed to return the plaint of the Original Suit to the
plaintiff to present the same beJore the appropriate court
at place 'C' having jurisdiction to try the suit. [Para 16]
[329-D-E]
                    Case Law Reference:
                                                             E

  1989 (2) SCR 1             Referred to          Para 11
  1995 (3) SCR 443           Referred to          Para 12
  2004 (1) Suppl. SCR 333 Referred to             Para 12    F

    CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
10184 of 2008.

    From the Judgment & Order dated 18.1.2007 of the High
Court of Judicature Andhra Pradesh at Hyderabad in First G
Appeal No. 1352 of 1999.

    Alok Singh, 8. Vijayalakshmi Menon for the Petitioner.

     The Judgment of the Court was delivered by               H
    322      SUPREME COURT REPORTS                 [2012] 1 S.C.R.

A        ALTAMAS KABIR, J. 1. On 23rd December, 1988, the
    parties to the Special Leave Petition entered into an
    Agreement at Calcutta for supply of chemicals manufactured
    by the Respondent to the Petitioner. In continuation of the
    aforesaid Agreement, the parties arrived at a Mutual
B Understanding on 15th May, 1989, whereby the Respondent
    would adjust the advance lying with it and would exclusively
    supply to the Petitioner its two products, namely, Sodium
    Chromate and Sodium Dichromate in West Bengal, Bihar,
    Orissa and Assam. The Understanding between the parties
C · included other terms and conditions as well. The terms of the
    Understanding entered into between the parties were reduced
    into writing in an agreement and the same was executed at
    Calcutta on 5th August, 1989, reiterating the terms of the
    Understanding and containing an additional clause indicating
D that ':4ny dispute arising out of this agreement will be subject
    to Calcutta jurisdiction only." (Emphasis supplied].

        2. Since certain differences arose between the parties
  relating to the supply of goods in question, the Petitioner herein
E filed Original Suit No.588 of 1991 in the Calcutta High Court
  on 27th August, 1991, for recovery of its alleged dues from the
  Respondent, after giving due adjustment of the amount of the
  Invoices raised by the Respondent and filed its claim only for
  the balance amount, along with penalties etc. Upon receiving
F summons of the suit filed by the Petitioner, the Respondent on
  12th September, 1991, filed a separate suit against the
  Petitioner at Vijayawada for recovery of a sum of 3,86,453.05,
  treating the Purchase Order dated 12th February, 1990, to be
  independent of the Agreement and also sought recovery of
G supplies made under the Invoices raised by the Respondent
  upon the Petitioner.
        3. The Petitioner duly contested the Suit filed by the
    Respondent by filing Written Statement, along with relevant
    documents, in support of its case. Out of the several issues
H
   A.V.M. SALES CORPORATION v. ANURADHA                    323
   CHEMICALS PVT. LTD. [ALTAMAS KABIR, J.]
raised by the Petitioner, one was the issue relating to the A
jurisdiction of the Vijayawada Court to entertain the Suit on
account of the exclusion clause by which all actions arising out
of the Agreement and the Memorandum of Understanding were
to be subject to the Calcutta jurisdiction only. The other issue
of importance was with· regard to adjustment, inasmuch as, the B
Purchase Order dated 12th February, 1990, was treated as
independent of the Understanding and Agreement arrived at
 between the parties. Rejecting the objection relating to
jurisdiction, the Principal Senior Civil Judge, Vijayawada, by his
judgment and decree dated 5th March, 1999, decreed the C
 Respondent's Suit (Original Suit No.519of1991) with costs for
 a sum of.3,86,453.05, together with interest at the rate of 12%
 per annum, from the date of the Suit till realisation of the
 principal amount of 2,98,267.50. The Petitioner filed First
Appeal No.1352 of 1999 before the Andhra Pradesh High o
 Court against the aforesaid judgment and decree dated 5th
 March, 1999. By judgment and order dated 18th January, 2007,
 the learned Single Judge of the High Court dismissed the
Appeal filed by the Petitioner. It is against the aforesaid
judgment of the learned Single Judge of the Andhra Pradesh E
 High Court in the First Appeal preferred by the Petitioner that
 the present Special Leave Petition has been filed.

      4. Apart from the other grounds taken with regard to factual
aspect of the matter, grounds have also been taken regarding F
the exclusive jurisdiction of the Courts at Calcutta agreed to by
the parties in the Agreement and whether the same was not
binding upon the parties. A further ground has also been taken
as to whether in breach of the Agreement, the Respondent was
entitled to invoke the jurisdiction of a Court at Vijayawada, G
whose jurisdiction stood ousted by the Agreement entered into
between the parties.

    5. On the strength of the pleadings of the pa"rties, five
issues were framed by the Trial Court, of which the first issue
was whether the Court at Vijayawada had territorial jurisdiction   H
    324      SUPREME COURT REPORTS                  (2012] 1 S.C.R.


A to entertain the suit. By his judgment and decree dated 5th
  March, 1999, in O,S. No.519 of 1991, the learned Principal
  Senior Civil Judge, Vijayawada, held that the Court at
  Vijayawada had jurisdiction to entertain the Suit as part of the
  cause of action for the suit arose within its jurisdiction. The
B learned Trial Judge, accordingly, decreed the Suit, as indicated
  hereinabove. In the First Appeal, being F.A. No.1352 of 1992,
  the learned Single Judge of the Andhra Pradesh High Court
  observed that the main contention of the Appellant before the
  High Court, who is the Petitioner herein, was that the Principal
C Senior Civil Judge, Vijayawada, had no jurisdiction to entertain
  the Suit as no part of the cause of action had arisen at
  Vijayawada. According to the Petitioner, its place of business
  was at Calcutta and the Agreement for the supply of the goods
  in question was also entered into at Calcutta. The goods were
D to be delivered at Calcutta and payment in respect thereof was
  to be made at Calcutta and, accordingly, the Court at
  Vijayawada had no territorial jurisdiction to entertain the Suit
  under Section 20 of the Code of Civil Procedure as no part of
  the cause of action had arisen within its jurisdiction. It was also
E emphasised that in the Agreement which was made Exh.D-5,
  it has been stipulated in Column 13 that any dispute arising out
  of the Agreement would be subject to the Calcutta jurisdiction
  only.

        6. The question involved in this Special Leave Petition has
F
  several dimensions, including the question as to whether the
  parties to an agreement can contract in violation of Sections
  23 and 28 of the Indian Contract Act, 1872. Obviously, the
  parties cannot contract against the statutory provisions. A
G connected question would arise as to whether the parties to
  an agreement can confer jurisdiction on a Court whfch has no
  territorial or pecuniary jurisdiction to entertain a matter? The
  answer to the second question is also in the negative. However,
  in this case a slightly different question arises, namely, as to
H whether if two Courts have jurisdiction to try a suit, can the
     A.V.M. SALES CORPORATION v. A.NURADHA                   325
     CHEMICALS PVT. LTD. [ALTAMAS KABIR, J.]

 parties to an agreement mutually agree to exclude the               A
 jurisdiction of one Court in preference to the other and as to
  whether the same would amount to violation of the provisions
  of Sections 23 and 28 of the Indian Contract Act? The said
. question has been answered in the affirmative by the Trial Court
  and has been upheld by the High Court.                             B ·

       7. The question which has been raised in this Special
 Leave Petition is not new and has been considered by this
 Court earlier in several decisions. We are, therefore, required
 to consider as to whether the cause of action for the Suit filed    c
 by the Respondent in Vijayawada arose within the jurisdiction
 of the Court of the Principal Senior Civil Judge at Vijayawada,
 exclusively, or whether such cause of action arose both in
 Vijayawada and also in Calcutta? As has been mentioned
 hereinbefore on behalf of the Petitioner, it had been urged that    D
 the entire cause of action for the Suit had arisen within the
 jurisdiction of the Calcutta Courts and the Courts at Vijayawada
 had no jurisdiction whatsoever to entertain a suit pertaining to
.the Understanding and Agreement arrived at between the
 parties. However, it was contended on behalf of the                 E
 Respondent that its Registered Office was situate at
 Vijayawada, the Invoices for the goods were raised at
 Vijayawada, the goods were dispatched from Vijayawada and
 the money was payable to the Plaintiff or its nominee at
 Vijayawada, by way of Demand Drafts and, accordingly, the
                                                                     F
 Courts at Vijayawada had jurisdiction to entertain the Suit.

     8. It has often been stated by this Court that cause of
action comprises a bundle of facts which are relevant for the
determination of the lis between the parties. In the instant case,
since the invoices for the goods in question were raised at          G
Vijayawada, the goods were dispatched from Vijayawada and
the money was payable to the Respondent or its nominee at
Vijayawada, in our view, the same comprised part of the bundle
of'facts giving rise to the cause of action for the Suit. At the
same time, since the Petitioner/ Defendant in the Suit had its       I-
    326      SUPREME COURT REPORTS                     [2012] 1 S.C.R


A  place of business at Calcutta and the Agreement for supply of
  the goods was entered into at Calcutta and the goods were to
  be delivered at Calcutta, a part of the cause of action also
  arose within the jurisdiction of the Courts at Calcutta for the
  purposes of the suit. Accordingly, both the Courts within the
B jurisdiction of Calcutta and Vijayawada had jurisdiction under
  Section 20 of the Code of Civil Procedure to try the Suit, as
  part of the cause of action of the Suit had arisen within the
  jurisdiction of both the said Courts.

c      9. This leads us to the next question as to whether, if two
  Courts have jurisdiction to entertain a Suit, whether the parties
  may by mutual agreement exclude the jurisdiction of one of the
  Courts, having regard to the provisions of Sections 23 and 28
  of the Indian Contract Act, 1872. Section 23 of the aforesaid
0 Act indicates what considerations and objects are lawful and
  what are not, including the considerations or objects of an
  agreement, if forbidden by law. Section 28 of the Act, which has
  a direct bearing on the facts of this case, clearly spells out that
  any agreement in restraint of legal proceedings is void. For the
E sake of reference, the same is extracted hereinbelow :

          "28. Agreements in restrain of legal proceedings, void -
          (Every agreement,

           (a)    by which any party thereto is restricted absolutely
F                 from enforcing his rights under or in respect of any
                  contract, by the usual legal proceedings in the
                  ordinary tribunals, or which limits the time within
                  which he may thus enforce his rights, or

           (b)    which extinguishes the rights of any party thereto,
G                 or discharges any party thereto from any liability,
                  under or in respect of any contract on the expiry of
                  a specified period so as to restrict any party from
                  enforcing his rights, is void to the extent.]

H                Exception 1 : Saving of contract to refer to arbitration
    A.V.M. SALES CORPORATION v. ANURADHA                      327
    CHEMICALS PVT. LTD. [ALTAMAS KABIR, J.]
    dispute that may arise. - This section shall not render illegal   A
    contract, by which two or more persons agree that any
    dispute which may arise between them in respect of any
    subject or class of subjects shall be referred to arbitration,
    and that only the amount awarded in such arbitration shall
    be recoverable in respect of the dispute so referred.             B

             Exception 2 : Saving of contract to refer question
     that have already arisen. - Nor shall this section render
     illegal any contract in writing, by which two or more persons
     agree to refer to arbitration any question between them
     which has already arisen, or affect any provision of any law C
     in force for the time being as to reference to arbitration."

      10. Basically, what Section 28 read with Section 23 does,
is to make it very clear that if any mutual agreement is intended
to restrict or extinguish the right of a party from enforcing his/ D
her right under or in respect of a contract, by the usual legal
proceedings in the ordinary Tribunals, such an agreement would
to that extent be void. In other words, parties cannot contract
against a statute.
                                                                       E
      11. One of the earlier cases in which this question had
arisen, was the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs.
A.P. Agencies, Sa/em [AIR 1989 SC 1239 = (1989) 2 SCC
163]. In the said case, the cause of action for the suit had arisen
both within the jurisdiction of the Civil Court at Salem in Andhra · F
Pradesh and in the Civil Court of Kaira in the State of Gujarat.
The question arose as to whether since by mutual agreement
the jurisdiction had been confined only to the Courts within Kaira
jurisdiction, the suit filed at Salem was at all maintainable? This
Court, inter alia, held that there could be no doubt that an G
agreement to oust absolutely the jurisdiction of the Court will
be unlawful and void, being against public policy. However,
such a result would ensue if it is shown that.the jurisdiction to
which the parties had agreed to submit had nothing to do with
the contract. If, on the other hand, it is found that the jurisdiction H
    328     SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A agreed would also be a proper jurisdiction in the matter of the
  contract, it could not be said that it ousted the jurisdiction of
  ihe Court. After considering the facts involved in the said case
  and the submissions made on behalf of the parties, this Court
  observed as follows :
B
             "Thus it is now a settled principle that where there
       may be two or more competent Courts which can entertain
      a suit consequent upon a part of the cause of action
       having arisen therewithin, if the parties to the contract
      agreed to vest jurisdiction in one such Court to try the
c     dispute which might arise as between themselves, the
       agreement would be valid. If such a contract is clear,
       unambiguous and explicit and not vague, it is not hit by
       Sections 23 and 28 of the Contract Act and cannot also
       be understood as parties contracting against the statute."
D
        12.A similar view was taken by this Court in Angile
  Insulations vs. Davy Ashmore India Ltd. &Anr. [(1995) 4 SCC
   153), wherein the Hon'ble Judges while referring to the decision
  of this Court in A.B.C. Laminart Pvt. Ltd.'s case (supra), inter
E alia, held that where two Courts have jurisdiction consequent
  upon the cause of action or a part thereof arising therein, if the
  parties agree in clear and unambiguous terms to exclude the
  jurisdiction of the other, the said decision could not offend the
  provisions of Section 23 of the Contract Act. In such a case,
F the suit would lie in the Court to be agreed upon by the parties.

       13. This Court has consistently taken the same view in
  several subsequent cases. We may refer to one such decision
  of this Court in Hanil Era Textiles Ltd. Vs. Puromatic Filters
G (P) Ltd. [AIR 2004 SC 2432 =(2004) 4 SCC 671), where part
  of the cause of action arose at both Delhi and Bombay. This
  Court held that the mutual agreement to exclude the jurisdiction
  of the Delhi Courts to entertain the suit was not opposed to
  public policy and was valid.
H
       A.V.M. SALES CORPORATION v. ANURADHA                329
       CHEMICALS PVT. LTD. [ALTAMAS KABIR, J.)

      14. As indicated herein earlier, in this case also the cause A
of action for the Original Suit No.519 of 1991, filed by the
Respondent before the Principal Senior Civil Judge,
Vijayawada, arose partly within the jurisdiction of the Calcutta
Courts and the Courts at Vijayawada.
                                                                   B
      15. Having regard to the provisions referred to
hereinabove, though the Courts at Vijayawada would also have
jurisdiction, along with the Courts at Calcutta, to entertain and
try a suit relating to and arising out of the Agreement dated 23rd
December, 1988, and the Mutual Understanding dated 15th c
May, 1989, such jurisdiction of the Courts at Vijayawada would
stand ousted by virtue of the exclusion clause in the Agreement.

     16. The Special Leave Petition has, therefore, to be
allowed. The decree passed by the Principal Senior Civil Judge, D
Vijayawada in O.S. No.519 of 1991, and the impugned
judgment of the High Court dated 18th January, 2007, are set
aside. The Trial Court at Vijayawada is directed to return the
plaint of the Original Suit No.519 of 1991 to the Plaintiff to
present the same before the appropriate Court in Calcutta E
having jurisdiction to try the suit.

     17. The Special Leave Petition is, accordingly, allowed,
but there will be no order as to costs.

N.J.                          Special Leave Petition allowed.     F