A court may stay a suit on grounds of balance of convenience and the presence of a jurisdiction clause in a contract, provided the defendant can show that the continuance of the action would be oppressive or vexatious and that the stay would not cause injustice to the plaintiff.

SABYASACHI MUKHARJI, J.

( 1 ) THIS is a suit by two plaintiffs Jokai (Assam) Tea Company Limited end the British India Tea Company Limited both of whom are English Companies having their registered offices in London and also carrying on business by branch office at 21, Netaji Subhash Road, Calcutta, within the jurisdiction of this Court. The defendant is Bhawani Sankar Bagaria who for self and Karta representing a Hindu undivided family carries on business under the name and style of Girdharilal Sardarmall at Dibrugarh outside the jurisdiction of this Court, and also has a place of business at Commerce House, 3rd floor, Room No. 4-A of No. 2, Ganesh Chandra Avenue in the town of Calcutta. It is alleged that the plaintiffs were each owners of tea gardens. It is further alleged that by an agreement contained in or evidenced by a writing the defendant was appointed the agent of the plaintiffs to supply foodgrains allotted from the Government sources for consumption by the workers of the plaintiffs' tea estates. The agreement is dated 1st August, 1972. The terms and conditions of the agreement have been set out in the petition. It is stated that thereafter pursuant to the said agreement the plaintiffs from time to time advanced sums of money to the defendant for procuring foodgrains in the manner agreed. It is alleged that by two letters both dated 15th July, 1974 written at and sent from 21, Netaji Subhas Road the plaintiffs terminated the aforesaid agreement on the ground that the supply of foodgrains had become irregular from May, 1974. It is stated that at that time the defendant was in possession of Rs. 7,80,802 advanced by the first plaintiff to the defendant and Rs. 1,35,261 advanced to the defendant by the second plaintiff for procurement of foodgrains which the defendant did not procure and did not supply. There was another agreement evidenced by writing dated 20th July, 1970 between the first plaintiff and the defendant whereby the defendant had agreed to make available on account of the first plaintiff cash, coins and notes of denominations required by the Manager of the said tea estate in exchange of cheques given in advance by the first plaintiff for an all inclusive charge of 44 paise per Rs. 100. It is alleged that by a further agreement contained in or evidenced in writing dated 1st April, 1974 the first plaintiff had agreed to maintain and did subsequently maintain a cash reserve of Rs. 2,00,000 with the defendant in connection with the aforesaid agreement. Interest at the rate of 11 per cent. per annum was payable on the said Rs. 2,00,000. It is then alleged that by a writing dated 24th June, 1974 written at and sent from 21, Netaji Subhas Road the first plaintiff terminated the aforesaid agreement. At that time it is claimed that a sum of Rs. 3,79,464 belonging to the first plaintiff was in possession of the defendant pursuant to the aforesaid agreement dated 20th July, 1970 and 1st April, 1974. It is stated that the defendant has refused to pay the sum of Rs. 11,60,267 to the first plaintiff and Rs. 1,35,261 to the second plaintiff. The first plaintiff claims the sum of Rs. 11,60,267/20 and the second plaintiff claims Rs. 1,35,261/20 as money had and received by the defendant. There is also an alternative claim. There are some further additional claims. The suit was filed at Calcutta after having obtained leave under Clause 12 of the Letters Patent.

( 2 ) LEAVE under Clause 12 of the Letters Patent was obtained by averments made in paragraphs 5, 7 and 10 of the plaint. In paragraph 5 it is alleged that that the letter dated 15th July. 1974 was written and sent from Calcutta. In paragraph 7 it is similarly stated that the letter dated 24th June, 1974 was written and sent from Calcutta within jurisdiction of this Court but none of these letters was received at Calcutta, or the communication did not become effective until the recepient received the letters in question In paragraph 10 it is alleged that payments

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