Amitava Lala, J.

1. This is a suit for money decree and others. This suit was instituted in the year 1976. The Defendant No. 1 has filed written statement on April 29, 1977 as available from the records. All formalities for the purpose of hearing the suit as against the main contesting Defendant is ready.

2. Now this suit came up for hearing before this Court.

3. At the time of hearing of the suit the Defendant raised a preliminary point that this Court has no jurisdiction to entertain, try and determine the suit in view of the CIause 13 of the Conditions of the insurance Policy as annexed with the written statement as follows:

if any difference arises as to the amount of any loss such difference shall independently of all other questions be referred to the decision of an Arbitrator, to be appointed in writing by the parties in difference or if they cannot agree upon a Single Arbitrator, to the decision of two persons as Arbitrators, of whom one shall be appointed in writing by each of the parties within one calendar month after having been required so to do in writing by the other party. In case either party shall refuse or fail to appoint an Arbitrator within one calendar month after receipt of a notice in writing requiring an appointment, the other party shall be at liberty to appoint a sole Arbitrator, in case of disagreement between the Arbitrators, the difference shall be referred to the decision of an Umpire who shall have been appointed by them in writing before entering on the reference. The death of any party shall not revoke or affect the authority or powers of the Arbitrator, Arbitrators or Umpire-respectively ; and in the event of the death of an Arbitrator or Umpire another shall in each case be appointed in his stead by the party or Arbitrators (as the case may be) by whom the Arbitrator or Umpire so dying was appointed. The costs of the reference and of the Award shall be in the discretion of the Arbitrator. Arbitrators or Umpire making the Award. And it is hereby expressly stipulated and declared that it shall be a condition precedent to any right of action or suit under this Policy that the award by such Arbitrator, Arbitrators or Umpire of the amount of the loss if disputed shall be first obtained.
The proceedings of Arbitration in pursuance of this clause shall solely be held in New Delhi which, is the principal place of business of the Insurers, to the exclusion of all other places.

Further, for all purposes connected with this policy in respect of disputes and differences under or in respect of any clause or arising there from, the courts in New Delhi, where the Insurers have their principal peace of business shall alone have jurisdiction to the exclusion of all other courts.

4. By showing para. 3 of such Clause the Defendant contended that disputes and differences under or in respect of any clause or arising there from, the courts of New Delhi, where the insurance company has its principal place of business shall alone have jurisdiction in exclusion of all other courts.

5. The Petitioner also contended that they do not want to say that Calcutta High Court has no jurisdiction nor the agreement was not executed within the jurisdiction of this Court where the regional or branch office of the Defendant No. 1 is situates but having two competent jurisdictions when the parties by agreement chosen to go to particular forum in exclusion of other that gives a right to the parties to raise an issue to such extent before the court. Defendant No. 1 specifically emphasized to the word 'alone' within the condition of contract.

6. Mr. Sumit Talukdar, with able assistance of Mr. Samendu Ghosh and Mr. Pranit Ray wanted to indicate that two provisions i.e. CIause 12 of the Letters Patent and Section 20 of the Code of Civil Procedure are governing jurisdiction of a court.

7. Section 20 of the Code of Civil Procedure reads as follows:

Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction-a) the Defendant, or each of the Defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain ; or b) any of the Defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the court is given, or the Defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiescence in such institution; or c) the cause of action, wholly or in part, arises.
Clause 12 of the Letters Patent reads as follows:

Original jurisdiction as to suits -And we do further ordain, that the said High Court of judicature at Fort William in Bengal, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immoveable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the Defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within such limits ; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage, or value of the property sued for, does not exceed one hundred rupees.

8. Mr. Talukdar contended that there is a basic difference in between the above two provisions. As and when suit is proceeded under Section 20 of the Code of Civil Procedure, Court can enquire as to the availability of cause of action within the jurisdiction even if suit is proceeded on the basis of the Defendant's place of 'carrying on business' but when the suit proceeded in the. original side of the High Court. Suit will be maintainable even if the Defendant carry only the business within the jurisdiction without any enquiry as to the cause of action, if the question of cause of action arises the suit will have to proceed differently upon obtaining leave from the appropriate court of law. By not asking such leave in the suit at the time of presentation and, thereafter, suit have to be guided by the place where the Defendant carrying on the business. Defendant No. 1 is carrying out business from its principal place at Delhi as well as from various places. Therefore, if in between two places where the Defendant is carrying on business the competent court would be the court to which the parties have agreed to proceed before it i.e. Delhi High Court. He also said such forum selection clause is not against public policy. Santity of the court should be maintained. He relied upon A.B.C. Laminart v. A.P. Agencies A.I.R. 1989 S.C. 1239.

9. He further contended that in view of Section 120 of the Code of Civil Procedure, Section 20 of the Code of Civil Procedure is not applicable in Original Civil Jurisdiction of the High Court. In support of his contention he relied upon Babylal Chokhanl v. Caltex India Ltd. A.I.R. 1967 Cal. 205 [LQ/CalHC/1965/265] .

Therefore, the strict compliance or Clause 12 would be there and since the plaintiff has choosen to proceed with the suit as against the Defendant only en the basis of the place where the Defendant 'carrying on business', this Court cannot be an appropriate forum on the basis of the agreement.

10. On enquiry he also explained that Forum Selection Clause is not a part and parcel of the arbitration clause as enumerated in Clause 13 of the Conditions of Contract but applies even in case of suit.

11. He also contended that at any stage of the proceedings this question of demurrer can be taken being a question of law. In support of his contention, he relied upon P.R. Sukeshwala v. Devadatta A.I.R. 1995 Bom. 227 [LQ/BomHC/1994/598] from a collective analysis it transpired that not only before framing of issues but after framing of issues question of rejection of plaint for want to jurisdiction can be taken. Ratio Is that as to why the Defendant or Defendants should incur costs and waste public time in producing evidence when the proceedings can be disposed of on the preliminary objection. He also relied upon Mayor S.S. Khanna v. Brig. F.J. Dillon A.I.R. 1964 S.C. 497 to establish that the jurisdiction, being question of law can be decided as preliminary issue leaving aside other issues of fact when court is of the opinion that whole suit may be disposed of on the issue of law alone.

12. Mr. Ranjan Deb, Learned Counsel appearing on behalf of the Plaintiff contended that this suit is of 1976. Several applications were moved in this Court after institution of this suit. A belated application as to the question of 'forum' is an afterthought to stall the entire proceedings for a further indefinite period of time. Moreover whether such forum selection clause is purely a question of law or a mixed question of facts and law is also to be considered in the context when there is no denial that the defendant carrying on business also within the jurisdiction and the cause of action in its entirety arising within the jurisdiction of this High Court. Moreover at no point of time arbitration clause was invoked which carrying the forum selection clause but by the conduct of the parties the same was superseded. Above all, if this Court feels that this Court has no jurisdiction to entertain, try and determine the suit in that case suit will be transferred to the Delhi High Court wherein the Letters Patent is inapplicable. Therefore, the concept of Section 20 of the Code of Civil Procedure cannot be given a total go-bye in the present situation. The Plaintiff did not ask leave under Clause 12 of the Letters Patent on the basis of the fact that the cause of action in its entirety arises within the jurisdiction of this High Court. There is no case made out that this Court inherently lacking jurisdiction to entertain, try and determine the suit. The regional or branch office of the Defendant has a nexus or connection with the cause of action, therefore, suit is filed in a court where the Defendant carrying on business for the purpose of the cause of action. He further contended that if the court inherently lacking jurisdiction such court cannot entertain, try and determine the suit but when the court admittedly has a jurisdiction and suit was instituted long before in such court, a forum selection clause cannot override the law of acquiescence. In other words, law of estoppels cannot be applicable against the law of acquiescence in this context.

13. I do not want to go into the controversy as to whether the question is a pure question of law or a mixed question of law and fact at the stage since I am deciding the preliminary point of jurisdiction on the hearing of the suit.

14. I feel that if there is any conflict in between the place in which the Defendant 'carrying on business' and the place where the cause of action is arising court will be for all practical purposes the court where the cause of action either full or in part arises. Therefore, carrying on business alone cannot be enough for the purpose of determining the jurisdiction of the court. 'Carrying on business' by the Defendant at a place means some nexus or connection with regard to the cause of action in that place.

15. In the above context I cannot restrain myself from telling about my experience while I was member of the Bar and possibly such experience can be helpful to draw a line. I had drawn a plaint describing sole Defendant carrying on business within the jurisdiction but prayed leave under CIause 12 of the Letters Patent. As a matter of practice junior members of the Bar are verbally praying leave under Clause 12 of the Letters Patent at the time of presentation of the suit before the interlocutory court. But possibly considering the situation concerned Solicitor/Advocate briefed me to obtain leave under CIause 12 of the Letters Patent. I asked for leave which was refused by the learned Judge on the plea that there is no necessity of granting leave since the Defendant is carrying on business within the jurisdiction. In spite of repeated submissions that for an abundant precaution leave is necessary neither the learned Judge was inclined to hear me nor able to control his annoyance towards me. ( felt very much aggrieved because it was a test case to determine the meaning of carrying on business for the future. Many Senior Lawyers of- the court either followed or heard subsequently, called me to explain the point of controversy when i did the same. Basis of such concept developed in my mind from a judgment Moharaj Mohindra Chandra Nundy Bahadur v. Ghundy Churn Banerjee 24 C.W.N. 582where it was observed that the expression 'carry on business' is not defined in the Letters Patent. The phrase is very elastic one, almost incapable of defination and the tribunal must In each case look to the particular circumstances. Factually therein suit was instituted in the High Court where the Defendant was carrying on business but cause of action arose outside the jurisdiction. Court held suit is not maintainable in this High Court.

16. Therefore a conclusion can be drawn that carrying on business by the Defendant minus part or full cause of action within such jurisdiction where business was carried cannot give jurisdiction of the court. Therefore also when leave under Clause 12 of the Letters Patent is sought for on the basis of part of the cause of action within the jurisdiction, court must look into it irrespective of Defendant's carrying on business within the jurisdiction and when situation arises, grant such leave ignoring the Defendant's place of business as only consideration for instituting a suit.

17. I have already held hereinabove as well as in delivering judgment in S.S. No. 13 of 1997 (Kamaia Construction v. Union of India) that place of 'carrying on business' means place of 'carrying on business' have nexus or connection with the cause of action and if there is any conflict in between place of carrying on business and place where in cause of action arises, court will proceed OR the basis of the later court where cause of action arises. This has conceptual value irrespective of the language of Section 20 of the Code of Civil Procedure and Clause 12 of the Letters Patent. If the Clause 12 of the Letters Patent is untouched to that score let it be touched for the future. Section 20 of the Code of Civil Procedure may not be applicable in original side but the same has face value to determine the crux of the case.

18. Learned Counsel for the Plaintiff placed a judgment Pate! Roadways v. Prosad Trading Company A.I.R. 1992 S.C. 1514 : (1931) 4 S.C.C. 270 from where it appears that if a corporation has subordinate office in a place where cause of action arise, court at such place will have jurisdiction therein. Parties cannot confer jurisdiction on court where corporation has its principal office. This case is similarly placed. Principle as laid down in the judgment cannot be ignored only on the technicality that Section 20 of the Code of Civil Procedure Is inapplicable in original side. Moreover concept of the judgment is more and more rational and explanatory to the explanation II under. Section 20 of the Code of Civil Procedure. Another vital aspect is that on the basis of such judgment the Plaintiff would not be allowed to file a suit in Delhi High Court where Section 20 of the Code of Civil Procedure is applicable. Although opposed by the Defendant but at the time of consideration of jurisdiction specially when court Is not inherently lacking, court is duty bound to consider the aspect as to whether plaint if taken off the fife can be filed before the Delhi High Court at all. However I agree with the Plaintiff that when court is not inherently lacking jurisdiction by long lapse of time, law of acquiescence.applies/ I accept the ratio of the judgment Aohyut Ansnd v. A.I.R. 1955 Cal. 331 [LQ/CalHC/1954/284] .(3. in Council w.

18. At last Learned Counsel appearing for the Plaintiff placed two provisions of the Insurance Act being Section 2(9) and Section 46 therein from which it appears that a policy holder can institute a suit against the insurer in any court of competent jurisdiction. Therefore such provisions have overriding effect over the forum selection clause under the agreement. In support of his contention, he relied upon a Division Bench judgment of Gujrat High Court Isaq Md. v. U.I.F. & G.I. Company, Hyderabad A.I.R. 1978 Guj.46 where it is held that in view of the non-obstinate clause under Section 46 of the Act, forum selection clause would be inoperative.

19. In all I observe that the preliminary issue as raised by the Defendant insurance company is not acceptable by me. I hold in favour of the Plaintiff. Let the suit be placed for hearing in the appropriate list of hearing on merit. Payment of costs is, reserved till final adjudication.