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HIGH COURT OF CALCUTTA
GHOSH
SUNDARDAS THACKERSAY AND BROS. - Appellant
Versus
NEW COMMERCIAL MILLS CO. LTD. - Respondent
Suit 3371 Of 1969
Decided On : NOVEMBER 19, 1970
JURISDICTION - CONTRACT - CLAUSE 34 - STAY OF SUIT - BALANCE OF CONVENIENCE - REVOCATION OF LEAVE - LETTERS PATENT, CLAUSE 12 - CIVIL PROCEDURE CODE, SECTION 10 - INTERPRETATION OF CONTRACTUAL TERMS - JURISDICTIONAL ISSUES - CONVENIENCE OF PARTIES AND WITNESSES.
Fact of the Case:
The plaintiff, a commission agent, filed a suit in the Calcutta High Court against the defendant company, a manufacturer, for recovery of a sum of money, declaration of settled accounts, and perpetual injunction. The defendant company applied for revocation of leave granted under Clause 12 of the Letters Patent and stay of the suit based on a clause in the agreement between the parties that disputes arising out of the agreement should be tried in Ahmedabad.
Finding of the Court:
The court held that the claim of the plaintiff in the suit was not covered by the clause in the agreement providing for exclusive jurisdiction of the Ahmedabad court, as the claim covered transactions prior to the period covered by the agreement and the agreement did not contain any term ousting the jurisdiction of the Calcutta High Court. The court also held that the defendant company failed to provide particulars of witnesses necessary to prove its case, and therefore the balance of convenience did not overwhelmingly favor trial in Ahmedabad.
Issues: 1. Whether the clause in the agreement between the parties ousting the jurisdiction of the Calcutta High Court applied to the claim of the plaintiff in the suit. 2. Whether the balance of convenience overwhelmingly favored trial of the suit in Ahmedabad.
Ratio Decidendi: 1. The clause in the agreement providing for exclusive jurisdiction of the Ahmedabad court did not apply to the claim of the plaintiff in the suit, as the claim covered transactions prior to the period covered by the agreement and the agreement did not contain any term ousting the jurisdiction of the Calcutta High Court. 2. The defendant company failed to provide particulars of witnesses necessary to prove its case, and therefore the balance of convenience did not overwhelmingly favor trial in Ahmedabad.
Final Decision: The court dismissed the application for revocation of leave and stay of the suit.
( 1 ) THIS application has two parts. It is made for revocation of leave under Clause 12 of the Letters Patent granted to institute the suit being suit No. 3371/69 in this court on the ground that the balance of convenience of trying this suit is overwhelmingly in favour of a court at Ahmedabad, Secondly, this application is for stay of the suit filed in this court in view of a Clause contained in the agreement between the parties which provides that the claim of the plaintiff as made in this suit should be tried by a competent court in Ahmedabad. In other words, according to the applicant the parties bargained that although this Court and an appropriate court at Ahmedabad both have jurisdiction to entertain or try the suit, the claim of the plaintiff which is involved in the present suit should be tried by an appropriate court at Ahmedabad. The applicant has prayed for stay of this suit on the basis of the said term of the bargain between the parties.
( 2 ) THE claim of the plaintiff in this suit is for the recovery of a sum of Es. 32,949. 28 P. declaration that the accounts of the dealings and transactions between the plaintiff and the defendant upto July, 1969 stood settled and adjusted, declaration that the defendant is not entitled to claim Rs. 10,92,491/- or any other sum from the plaintiff, perpetual injunction restraining the defendant or its agents or servants from claiming the said sum or any other sum from the plaintiff and other reliefs. So far as the declaration and perpetual injunction part of the claim in the suit is concerned I am not called upon to decide at the present moment the maintainability thereof.
( 3 ) ACCORDING to the plaintiff in this suit the plaintiff acted as commission agents for the sale of the products of the defendant company on the terms and conditions set out in paragraph 1 of the plaints from 1931 upto 1956. According to the plaintiff, the said terms and conditions were agreed upon orally by and between the parties and in any event must be implied from the course of dealings between them. The plaintiff also claimed an accounts of his acting as commission agent between 1956 and March 31, 1969 of the defendant company for the sale of the various products of the defendant company on the terms and conditions mentioned in paragraph 3 of the plaint. The said terms and conditions according to the plaintiff were agreed upon and in any event must be implied from the conduct and/or course of dealings between the parties. According to the plaintiff since 1956 the parties entered into written agreements in respect of their relationship of principal and commission agent but only some of the terms mentioned above would appear in the said written contracts between the parties.
( 4 ) THE defendant in the petition filed in the Instant proceedings also agreed that between 1931 and March 31. 1956 the plaintiff acted as commission agent of the defendant company. The defendant had further stated in the petition filed in the instant proceedings that since April, 1956 from time to time the parties entered into written agreements on the basis whereof the parties had their relationship of principal and commission agent. The plaintiff acted as commission agent of the defendant company in respect of its products on the basis of the said written agreements since April, 1956,
( 5 ) FROM time to time the plaintiff sent statements of accounts to the defendant at Ahmedabad. From time to time the accounts between the parties is stated to have been settled also at Ahmedabad. The case of the defendant is that after appropriating the amounts paid from time to time to the defendant by the plaintiff a sum of Rs. 10,92,491. 60 P. including interest became due and payable by the plaintiff to the defendant company in respect of the aforesaid transactions between the parties upto September 10, 1969. On October 23, 1969, the defendant company filed a suit in the City Civil Court at Ahmrdabad being Summary Suit No. 219
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