Choice of foreign Tribunal is absolute discretion of Court.

In view of the foreign jurisdiction clause contained in a bill of lading, the petitioner, a Russian Steamship concern, objected to the jurisdiction of the Court of Small Causes at Madras to try the suit brought by the respondent for damages for short delivery. That Court, however, in the first instance by one of its Judges overruled the preliminary objection and with this conclusion, the New trial Judges, functioning under the procedure provided under the provisions of the Presidency Small Cause Courts Act, concurred. The defendant canvasses the correctness of the view.

I have no doubt that, on the facts of this case, the only conclusion the Courts below could rightly arrive at, in the circumstances, is the one which they did. The contract to carry a considerable number of electrolytic zinc ingots from Odessa to Madras Port was entered into in Russia in June, 1965. When the goods arrived at this end by Mozdock in July, they were found to be short of their number shipped, with the result the respondent instituted the suit on the small cause side for recovery of Rs. 358.13 inclusive of the loss of the proportionate transit and customs charges. The bill of lading was a printed document which, among other things, contained on the front page a clause “ The shipper, the receiver of goods and the holder of the bill of lading as well as any other person interested hereby expressly accept and agree to all printed written or stamped provisions, terms and reserves of this bill of lading, including those on the back hereof.” On the back of the document there were two stipulations:

“26. All claims and disputes arising under and in connection with this bill of lading shall be judged in the U.S.S.R.

27. All questions and disputes not mentioned in this bill of lading shall be determined according to the Merchant Shipping Code of the U.S.S.R.”

So, it is clear that the parties entered into a binding contract as between them that the Russian Courts should adjudicate the disputes arising under and in connection with the bill of lading and that the questions and disputes not mentioned in the bill of lading should be determined according to the Merchant Shipping Code of the U.S.S.R. At the moment this Court is not so much concerned with the law that should govern the contract but with the jurisdiction of the Small Cause Court at Madras.

It is strongly urged that the clear stipulations in the bill of lading, which amount to a contract between the parties and which require all claims and disputes arising under and in connection with the bill of lading to be adjudicated in the U.S.S.R., should be respected and the parties by their own choice should be directed to adhere to that. Attention is also invited to section 28 of the Indian Contract Act to say that the Contract is not hit at by it. That is of course correct, for, the parties thereby were not (sic) restricted absolutely from enforcing their rights under or in respect of the contract by the usual legal proceedings in the ordinary tribunals. On the question of the jurisdiction of the Small Cause Court, however, I think the circumstances of this case do not warrant driving the plaintiff to resort to the Russian Courts.

The parties who make their choice of the Tribunal should normally be bound by their contract. That should especially be the case as to the choice of the law applicable to the contract. But it seems to me that enforcement by the Indian Courts of the choice of a foreign tribunal cannot be ruled as imperative; but it should depend on the balance of convenience in particular circumstances and the exigencies of justice. The law has been fairly accurately stated by Cheshire in his Private International law, 6th edition, page 222:

“As distinct from the express or implied choice of the proper law, the express choice of a foreign tribunal is not absolutely binding. In accordance with the excellent principle that a contractual undertaking should be honoured, there is indeed, a prima facie