The court has the discretion to revoke leave granted under Clause 12 of the Letters Patent, 1865, but such discretion should not be exercised if the defendant is guilty of gross delay.

RAMENDRA MOHAN DATTA, J.

( 1 ) THIS is an application for revocation of leave granted under Clause 12 of the Letters Patent. 1865. The suit was filed on April 29, 1976, inter alia, for damages for breach of contract entered into in Calcutta within the jurisdiction of this Court. The contract was for the sale of 5 M. Tons of Dalapon at the rate of Rs. 15,000/- per M. T. The plaintiff applied for delivery but the defendant No. 1 failed and neglected to deliver within the time mentioned in the contract or within a reasonable time thereafter and repudiated the said contract. The plaintiff accepted the repudiation. The plaintiff claimed damages on the basis of the difference between the contract rate and the market rate and prayed for a decree for Rs. 75,000/ -. The defendant No. 1 is a foreign company and carries on business from its branch office at Hindusthan Times House, Kasturba Marg, New Delhi outside the jurisdiction of this Court. The defendant No. 2 also carries on business at the same address in New Delhi.

( 2 ) FROM the averments made in the plaint and from the correspondence on record herein it appears that the jurisdiction to try and to entertain the suit by this Court has been invoked on the basis that the contract was entered into in Calcutta within its jurisdiction. Accordingly, it is contended that leave under Clause 12 was properly granted.

( 3 ) IN the petition the petitioner defendant No. 1 has denied that any oral agreement was entered into in Calcutta. Be that as it may, that is a question which might ultimately be decided at the trial but it is sufficient for the present to say that the necessary averments relating to jurisdiction have been made in the plaint and nothing could be shown from the correspondence as to why the Court should not have proceeded on that basis and granted leave under Clause 12 of the Letters Patent at the time of the institution of this suit.

( 4 ) ON behalf of the petitioner defendant it has been stated in the petition herein that "the entire evidence to be led by your petitioner on the issues relating to the contract is at New Delhi and it would be much convenient for your petitioner if the trial of the said suit takes place at New Delhi. " It is further alleged that the plaintiff (wrongly stated as petitioner) has really no place of business at Calcutta but its business is carried on from Assam and the correspondence also took place from Assam. Moreover, the goods also are supposed to be delivered from Bombay to Assam and the market price of the goods would be the market price either of Bombay or of Assam but not of Calcutta

( 5 ) IN my opinion, as stated above the plaint contains averments that this Court has jurisdiction to try and to entertain the suit. If the defendant would choose to urge that the balance of convenience is in his favour it would not be sufficient to allege and satisfy the Court that it would be "much more convenient" if the trial of the said suit would take place at New Delhi. He has to satisfy the Court that such balance of convenience is overwhelmingly in favour of the suit being tried at New Delhi. Mere tilting of balance on one side or the other would not be enough. The Court has to consider and satisfy itself, from the materials before it, that if the suit is allowed to proceed in the Court where it has been instituted then it would amount to gross injustice to the petitioner for revocation of the grant of leave under Clause 12. (See Bimal Singh Kothari v. Muir Mills Co. Ltd. and Rekhab Chand Jain v. Paras Das Bhartiya,. It would be of no avail to the defendant to allege that even the plaintiff's business is carried on from Assam and the correspondence was exchanged therefrom. For, the plaintiff has undoubtedly the choice of forum. As stated above, if the Court, which the plaintiff haf chosen, has otherwise jurisdiction to entertain and to try the claim of the plaintiff then such choice of forum by the plaintiff cannot be disturbed except on the groun

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