2003 PLP 1546 (CLD)

(b) Jurisdiction‑‑‑ ‑‑‑‑Two or more Courts having jurisdiction in matter‑‑‑Parties could validly agree for conferment of jurisdiction upon one of such Courts to the exclusion of other. Syed Hamid Ali Shah for Appellants. M. A. Zafar for Respondent. Date of hearing: 26th June, 2003. MIAN SAQIB NISAR, J.‑‑‑The appellants/ plaintiffs brought a suit for damages against the respondent before this Court as Banking Court, claiming that the respondent, by virtue of two agreements dated 19‑5‑1993 and 20‑5‑1993, had agreed to provide finance facility to the petitioners but subsequently, in breach of the agreements, such facility was not provided, rather the agreements have been wrongly and illegally terminated, which has caused loss to the appellants enumerated in the suit. The respondent applied for leave to appeal and defend the suit, in which an objection was raised qua the jurisdiction of this Court, on the ground that under clause, 10.06 of the above agreements, the jurisdiction to try the dispute between the parties, arising out of or under the agreements, falls within the exclusive jurisdiction of the appropriate Court at Karachi. Leave was granted to the respondent and in the written statement, same objection was repeated. Anyhow, the learned Banking Judge, framed the issues, recorded the evidence of the parties and by giving findings on the issue of jurisdiction, has returned the plaint to the appellants under Order 7, rule 10, C. P. C. to be presented before the appropriate forum at Karachi, hence this appeal.

2. Learned counsel for the appellants contends that the letters dated 5‑4‑1995 and 14‑6‑1995, through which, financial facility was recalled by the respondent, were issued from its Lahore Office letter of refusal to disburse the amount was also sent by the respondent's office at Lahore, the L.Cs. under the agreements were established by the respondent at Lahore, therefore, irrespective of clause 10.06 of the agreements, as the part of the cause of action had accrued to the appellants at Lahore, resultantly, the Banking Court at Lahore had the jurisdiction to try the case. It is also submitted that clause 10.06 of the agreements, reproduced by the learned Judge in his judgment, does not confer exclusive jurisdiction to the Courts at Karachi, therefore, as both the Courts at Karachi and Lahore had the jurisdiction and because the part of the cause of action accrued, to the appellants at Lahore, thus, the suit could be validly instituted and adjudged at Lahore. Lastly, it is submitted that according to the interpretation of clause 10.06, the dispute between the parties, which could be tried by the Courts at Karachi, only relates to the matters arising out of or under agreements; as the rescission of the agreements does not fall within the purview of clause mentioned above, therefore, the suit was triable at Lahore.

3. We have heard the learned counsel for the parties and find that according to the title of the agreements, both have been executed at Karachi. Clause 10.06, of the same reads as blow:‑‑ "That a Court of appropriate jurisdiction at Karachi shall be the proper Court to entertain all matters arising out of or under this agreement." The aforesaid clause, even if words "only" or "exclusive" are not mentioned therein, clearly spells out the intention of the parties, that if a dispute arises between them with regard to breach of the aforesaid agreements, which obviously includes the failure to disburse the agreed facility or the recalling of the same, shall be tried by the Court at Karachi, rather than any other Court. The only reason that subsequently, the L.Cs. were established at Lahore or the refusal to disburse the amount was made by the Lahore office of the respondent, or the agreements were wrongly rescinded through the Lahore office, by itself would not be a cause of action, taking the case out of the preview of the above clause. Because it is settled law that where two or more Courts could have the jurisdiction in a matter, the parties can validly agree for conferment of the jurisdiction upon one of such Courts to the exclusion of other. This is exactly, what is the clear intention of the parties in the present case. The argument of the learned counsel for the appellants that expression used in clause 10.06 "all matters arising out of or under this agreement" would not include the rescission of the agreements, suffice it to say that, the above expression is comprehensive enough to include every nature of the discord and dispute between the parties having connection and nexus to the agreements during the subsistence of these agreements or even thereafter. The learned Banking Judge has exhaustively dealt with these arguments of the learned counsel for the appellants in his judgment and has made extensive reference to the relevant case‑law to support his view. The judgments cited by the learned counsel for the appellants reported as. 2001 MLD 352; 1999 CLC 954 and PLD 2002 Karachi 420 have no relevance to the issue involved in the matter. Resultantly, we do not find any error in the judgment impugned before us, calling for interference. This appeal thus, has no merits and is hereby dismissed. S.A.K./T‑135/L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed