Amberson Marten, Kt., C.J.
1. This is an appeal from the judgment of Mr. Justice Rangnekar refusing the defendant's application for a stay of the present Bombay suit, and on the other hand granting an injunction against the defendant from prosecuting a suit brought by him in the Ludhiana Court in the Punjab.
2. It appears that the defendant filed his suit first, viz., on May 18, 1925, in the Ludhiana Court. The Bombay suit was filed by the plaintiffs on May 19, 1925. There were two main points argued before the learned Judge, namely, (1) whether the two suits were between the same parties, and (2) whether the matters in issue in the two suits were the same within the meaning of Section 10 of the Civil Procedure Code.
3. There was another point to which the learned Judge alluded but on which he did not base his decision, viz., that under the express terms of the several contracts between the plaintiffs who were commission agents in Bombay and the defendant who was their up-country constituent at Ludhiana, it was agreed as follows :
We agree that no suits in regard to any matter arising out of this transaction shall be instituted in any Court save the High Court of Judicature at Bombay or the Court of Small Causes at Bombay.
4. One can well understand that condition being inserted so as to prevent the Bombay commission agents from being obliged to go to some up-country Court with all their books as has happened in some cases with which we are familiar. A similar form of agreement is frequently found in England in dealings between English merchants and merchants inother 'countries.' No objection has been urged before us as to its validity. That being so, we may take it that there was a binding contract between the plaintiffs and the defendant that any suit in respect of the transactions between the parties should be brought either in the High Court or the Small Causes Court at Bombay.
5. Accordingly, the plaintiffs' Bombay action is in pursuance of the contract: the defendant's Ludhiana Suit is directly in breach of that contract: and yet we are actually asked by the defendant to aid him in breach of his own contract. The answer given to us by his counsel is that the proper and most convenient Court to decide this particular point is the Ludhiana Court. That argument does not appeal to me. In my judgment it would be quite wrong for us to grant the relief which the defendant asks for so as to enable him to break a clear term of his own contract with the plaintiffs. In my opinion Section 10, Civil Procedure Code, has really nothing whatever to do with that. It is not a section which prevents the Court from enforcing contractual rights of this nature as between two parties A and B.
6. [His Lordship next proceeded to consider the applicability of Section 10 of the Civil Procedure Code to the appellant's claims.]
7. I would, accordingly, dismiss the appeal with costs.
8. I am of the same opinion. In breach of the express terms of the various contracts entered into between the parties, the defendant in the Bombay suit had instituted a suit in the Ludhiana Court. He then took out a notice of motion asking the Bombay High Court to stay the suit which had been brought pursuant to the terms of the contracts relating to suits by the plaintiffs against the defendant in Bombay. Thereupon by a letter dated September 5, 1925, appearing at p 11 of the appeal paper book, the plaintiffs' attorneys gave notice that at the argument of the notice of motion they would apply that the defendant should be restrained from proceeding with the suit filed by him in the Ludhiana Court. They also gave notice that they would rely on an affidavit which was furnished at the same time. In that affidavit the plaintiffs expressly referred to the terms in the contract to which I have already referred, and submitted that the defendant was precluded thereby from filing any suit in respect of transactions had with them in any Court except the Bombay High Court
9. That being the position, it seems to me that the Bombay High Court was not only entitled, but bound, to give effect to the terms in the contract between the parties, and in my judgment the learned Judge was right in granting an injunction to restrain the defendant from committing a breach of his contract. Otherwise, merely by filing a suit in Ludhiana some four or five days before the Bombay suit was filed, the defendant might have succeeded in placing the plaintiffs in great difficulties. One of those difficulties might have been the fact that the plaintiffs in the Bombay suit would have been unable to raise a counter-claim against the defendant at Ludhiana. It seems to me that this is precisely one of the matters which the plaintiffs may have desired to guard themselves against by inserting a clause in the contract providing that a suit should lie in the Bombay High Court and not elsewhere.
10. Under these circumstances in my judgment the Court would be failing in its duty if it refused to restrain the defendant, who, in breach of the express terms of his contract, had instituted a suit elsewhere from proceeding with that suit. On this ground, in my opinion, this appeal should be dismissed. [The rest of the judgment is not material to this report.]