Pratibha Bonnerjea, J.
1. The plaintiff imported 23430 pieces of 'Trough Bars for fabrication of crossing slippers and Turnouts' by the vessels M. V. 'Tai Yin' from Gefle to Calcutta under Bill of Lading No. 3 dated 29-12-58 issued at Gothenburg in Sweden by the defendant No. 3 Messrs Wilh Wilhelmsen, a partnership firm of which the defendants Nos. 1 and 2 are partners. The defendant No. 3 is the owner of the vessel 'Tai Yin'. The said Bill of Lading was issued by the defendant No. 3 subject to a printed notice for payment of rebate or deferred commission and the said notice was issued by the defendant No. 3 along with some other companies. The contents of the said notice is as follows :
MADRAS CALCUTTA and TUTICORINSCANDINAVIAN JOINT SERVICE.AktiebolagetWith WilhelmsenAktieselskapetSvenska Ostaslatiska Kompanlet Det stasiatiske(The Swedish East Asia Co Ltd.)OSLO, NORWAY. GOTHENBURN, SWEDEN Kompangl (The East Asiatic Company Limited) COPENHAGEN, DENMARK NOTICE TO SHIPPERS
Deferred Commission in respect of shipments.
Shippers of cargo from all ports in Norway, Sweden, Finland, Denmark, Germany, Holland and Belgium, and also Dunkirk to Madras and Calcutta are hereby informed that until further notice, and subject to the terms and conditions set out herein, each of the undernamed Companies and Lines will pay to Shippers by their Line a Deferred Commission of ten per cent, calculated upon the net amount of freight on their shipments. Deferred Commission will be calculated on the basis of the Sterling Freight irrespective of the currency in which the freight has been paid. If Shippers, when freight has been paid in local currency, desire their deferred Commission paid in the same local currency instead of sterling, the Sterling Deferred Commission will be converted into local currency at the highest rate of exchange operating on the day the Deferred Commission becomes due.
The said Commission shall be computed every four months up to the 30th April 31st August and 31st Dec. in each year, and shall be payable four months after such respective dates to those Shippers only, who, until the date at which such commission shall become payable, shall have given their support to the undernamed Companies or Lines by shipping exclusively by vessels despatched by the said Companies or Lines, and provided that such Shippers, either as Principals or as Agents, shall not have directly or indirectly made or been interested in any shipments by vessels other than those despatched by the undernamed and also provided that the Statement of Claim for such Commission shall be made in the form below, within twelve months from the end of the period comprised therein.
Shipments purchased or sold C. I. F., C. and F., F. O. B., ex Works or on any other terms unless shipped by Conference vessels will invalidate claims to the above Commission.
BRITISH INDIA STEAM NAVIGATION CO. LTDINDIA STEAMSHIP CO. LTD.BROOKLEBANKS' WELL LINE.COMPAGNIE DES MASSAGERIESDEUTSCHE DAMPFSOHIFFAHRTS GESELLSOHAFT 'HANSA'. MARITIMES.East Asiatic Co. Ltd.PENINSULAR & ORIENTAL STEAM NAVIGATION COMPANY.HOLLAND BENGAL BURMA LINE.SCINDIA STEAM NAVIGATION CO. LTD.HOLLAND BOMBAY KARACHI LINE.SWEDISH EAST ASIA CO. LTD., WILH WILHELMSEN.COMMISSION FOR PERIOD :-PAYMENT DUE ON : -1st. Jan. to 30th April1st Sept. (of same year)1st May to 31st Aug.1st Jan. (of following year)1st Sept to 31st Dec.1st May (of following year).To ..................................................................Date .....................................................................................................................................Sirs, We handyon claim for Deferred Commission on Freight for Shipments by vessels shownoverleaf, for the four months ended upon which shipments we claim theCommission referred to in the above Notice to Shippers, and such claim ismade in accordance with and on the terms and conditions of the said Notice, which terms and conditions we hereby accept.
We hereby authorise you to pay the Deferred Commission, noted overleaf, to : -(Name) ....................................................................This space should be completed if the Rebate is to be paid to a third party.
(Address) ..................................................................... Yours faithfully, This declaration must be signed. (1)In the case of Limited Company, by a Directoror the Secretary.
Signature ....................................(2)In the case of a private firm, by a partner or a person holding the procuration of the Firm.Address in full ..................................................................................... Forwarding Agents must obtain the above authority from their Principals to collect Deferred Commission.(On the back)
Date of SailingVesselPort of ShipmentPort of DischargeNo. of B/LNett Freight (??) S. D.Amount of Commission Claimed (??). S. D.
2. According to the plaintiff, the entire freight of 15015-2-11 equivalent to Rupees 2,00,550.12 np. payable under the said Bill of Lading was paid by the plaintiff in or about February 1959 to the defendants' local agents Messrs United Liner Agencies of India Private Ltd., at Calcutta who accepted the same on behalf of the defendants. In the premises, the plaintiff became entitled to 10% deferred commission amounting to 1501.10 (sh)-4d equivalent to Rupees 20,052.62 np. The defendant's local agent by its letter dated 12-3-59, admitted that the aforesaid rebate would fall due for payment to the plaintiff on 1-9-59. The plaintiff submitted its claim form to the local agent in July 1959 who accepted the same. The said deferred commission was payable by the defendants at the plaintiff's office at Calcutta. The defendant wrongfully did not pay thesaid deferred commission or any portion thereof in spite of demands. The present suit was instituted on 2-1-62 for recovery of said dues. According to the plaintiff the defendants carry on business at No. 17 Brabourn Road, through its local agent as admitted by the defendants in their letter dated 13-7-59. The defendants Nos. 1 to 3 filed a Joint Written Statement alleging that this Court has no jurisdiction to try this suit. The main defence in the written statement is that the plaintiff, after receipt of the defendants' letter of 12-3-59, became directly and/or indirectly interested in a shipment of parcel of iron by S. S. 'Janmada' of Malabar Steamship Company Bombay, some time in April 1959 and thereby committed breach of the term of the notice and as such was not entitled to receive the commission. The defendant also denied that it carried on business through the said local agent at No. 17 Brabourn Road Calcutta. The following issues were raised.
1. Did the plaintiff fulfil and comply with all the terms and conditions for claiming deferred commission in terms of the said printed notice?
2. Has the Court jurisdiction to try this suit?
3. To what relief, if any the plaintiff is entitled
3. No oral evidence was adduced by the parties. The Judge's brief of documents Fart 1 and 11 were marked by consent as Exts. A and A-1. Issue No. 2
4. The defendants admitted the plaintiff's case of import of iron per M. V. 'Tai Yin', receipt of the entire freight, issue of the notice dated 13-7-59 by its local agent intimating the plaintiff that commission would be payable on 1-9-59 as well as the receipt of plaintiff's claim forms through its Calcutta office. The plaintiff's case has been proved by the admissions of the defendants contained in their written statement as well as the documents disclosed. But in paragraph 12 of the written statement the defendants raised a plea that after receipt of the letter of 12-3-59, the plaintiff was directly or indirectly interested in a shipment of parcels of iron carried by S. S. Janmada of the Malabar Steamship Company Bombay in April 1959 which fact amounted to breach of the terms of the notice concerned and disentitled the plaintiff from receiving the deferred commission. To prove the aforesaid allegations, the defendant's counsel relied on the plaintiffs letter dated 13-11-59 at pages 29 of Ext. A and submitted that plaintiff had admitted those facts in that letter. The alleged admissions are as follows :--
'........ Surendra (Overseas) through itsrepresentatives Messrs. Terrestre Marittima S. A. of Genoa and S. K. B. A. Domnarfvets Jernverk of Sweeden explained that Surendra (Overseas) is an incorporated Company and as such is separate and distinct from Amin Chand Payare Lal and that Surendra (Overseas) had no interest in the shipment ex s. s. 'Janmada' which was made by Amin Chand Payare Lal. It is our understanding that consequent on this you confirmed that Surendra (Overseas) would be paid the rebates claimed.'
5. The statements relied on by the defendant's counsel are deadly against the defendants. They not only deny the defendant's allegations but record that the defendant's had accepted the explanation offered by the plaintiff and had confirmed the plaintiff's right to receive the commission. The onus to prove the aforesaid facts are on the defenddants. There is no dispute that the plaintiff is a limited liability company and is a juristic person. It has a separate identity of its own.
6. The notice provides that the party entitled to get commission should not be interested in shipments by ships not belonging to the signatories to the said notice either directly as principal or indirectly as an agent for others. The words 'directly' or 'indirectly' used in the said notice clearly referred to the words 'principal' and 'agent' mentioned earlier in the said notice. It is an admitted position that the plaintiff is a Limited Company and is a separate juristic person from that of Amin Chand Payare Lal. There is no evidence that the plaintiff acted either as a principal or as an agent of Amin Chand Payare Lal in connection with the shipment by S. S. Janmada. According to the plaintiff's counsel the period of support contemplated in the notice is four months from the date of computation of commission to the date of payment. The commission becomes payable within 4 months from the date of computation. The commission was payable to the plaintiff on 1-9-59 in accordance with defendants' letter dated 12-3-59. Therefore the date of computation in terms of the notice was 30-4-59. There is no allegation that the plaintiff committed any breach of the terms of the notice concerned from 30-4-59 to 1-9-59. This seems to be the correct construction of the notice and I accept the same. The commission was computed on 30-4-59 and it was payable on 1-9-59. The shipment by 'Janmada' was in April 1959 prior to the date of computation. Even if the plaintiff was interested in the shipment by 'Janmada', it was clearly outside the period contemplated by the notice and as such could not defeat the plaintiffs claims. In the premises I hold that the plaintiff has not committed any breach of the terms of the notice and the issue No. 2 is answered in 'yes'.
Issue No. 1
7. According to the plaintiff this Court has jurisdiction to try this suit as the defendants carry on business within the jurisdiction and the money is payable at plaintiffs Calcutta Office. The plaintiffs' counsel relied on a defendants' letter dated 13-7-59 (page 20 Ext. 'A') in support of his contention that the defendants admittedly has a place of businessin Calcutta within jurisdiction and carry on business in Calcutta. The admission relied onis as follows :--
'Through our Calcutta office we have received rebate claim forms for your shipment of 3.048,075 kos. of the iron bars per our M/S 'Yai Yin' from Gavle on the 5th Jan., 1959.'
8. It is also submitted that the address of the 'Calcutta Office' mentioned in the letter is No. 17 Brabourn Road, Calcutta, the office of the local agent of the defendants' United Liner Agencies of India Private Ltd., where the plaintiff submitted its claim forms. This is not disputed by the defendants' counsel. It is an admitted fact that the plaintiff had submitted its claim forms with this local agent in its above address. The plaintiffs* counsel also submitted that no place for payment of commission could be found out either expressly or by implication from the notice concerned. When the commission became due and payable to the plaintiff the relationship between the parties was changed into the relationship of a debtor and a creditor. The principle that debtor must find out the creditor as embodied in Section 49 of the Contract Act would apply. The money became payable at the plaintiffs' office at No. 135 Canning Street, Calcutta, within jurisdiction. The suit was instituted after obtaining leave under Clause 12 of the Letters Patent. The defendant did not apply for revocation of the leave. In support of his contention that Section 49 of Contract Act would apply the plaintiff's counsel relied on : AIR1964Cal418 (State of Punjab v. A. K. Raha (Engineers Ltd.)). The relevant passage is as follows (at p. 421):---
'The general rule is that where no place of payment is specified in the contract either expressly or unpliedly, the debtor must seek the creditor, the obligation to pay the debt involves the obligation to find the creditor and to pay him at the place where he is when the money is payable. The application of the general rule is not excluded because the amount of debt is disputed.'
9. I have already held that the plaintiff is entitled to receive the deferred commission from the defendants and as such the relationship between the plaintiff and the defendant became that of a creditor and a debtor when the money became payable on 1-9-59. This general rule as provided under Section 49 of the Indian Contract Act will have full application on the facts of this case. The defendents' counsel did not seriously object to the aforesaid contentions of the plaintiff. The defendants' counsel, however,strongly relied on Clause 2 of the Bill of Lading and contended that this Court should not try this suit. The Clause 2 is as follows :--
'Any claim against the carrier arising under the Bill of Lading shall depending on the nationality of the carrier be decided according to Danish or Norwegian or Swedish Law except as provided elsewhere herein and in Danish or Norwegian or Swedish Courts to the exclusive jurisdiction of which the carrier and the merchant submit themselves.'
10. The defendants' counsel submitted that assuming but not admitting that this court has concurrent jurisdiction along with Danish, Norwegian and Swedish Court the jurisdiction of this Court was expressly curtailed by the agreement of the parties. Validity of this type of agreement cannot be questioned and as such the present suit should be dismissed with costs on the ground of jurisdiction.
11. The plaintiffs' counsel on the other hand submitted that although this type of agreement would be valid in law but this term, in fact, could not take away the jurisdiction of this Court if otherwise this court is vested with the jurisdiction to try this suit. There is no initial lack of jurisdiction. In spite of this agreement, the Court has the discretion to try the suit if it finds that the balance of convenience and equity are in favour of trying this suit by this Court. The Court would be guided by consideration of justice, balance of convenience and equity. In support of this contention, the plaintiffs' counsel relied on : AIR1960Cal155 Lakhinarayan Ramniwas v. Lloyd Triestino Societa Per Azinni Di Navigazience Sede in Triesta.
12. The facts of the case reported in : AIR1960Cal155 is, that the appellants placed orders for Mild Steel Round bars with the Italian shipper and the Italian shipper shipped the goods per S. S. Alga belonging to the respondant No. 1. The contract for carriage of goods was from Italy to Calcutta. There was short delivery at the port of destination. The Bill of Lading concerned contained a clause similar to that in the present suit, that only the Court at Triesta or Genoa would have jurisdiction to try the suit in respect of the claims arising out of the Bill of Lading. A suit was instituted in Calcutta High Court after obtaining leave under Clause 12 of the Letters Patent. The respondents applied for stay of the suit and stay was granted by the trial Court. The plaintiff then preferred an appeal. The Division Bench of this High Court held at p. 156 as follows :--
'........Parties cannot by a privateagreement, whether such agreement has been entered into in India or outside India, take away the jurisdiction which is vested in this court to try the suit just as the parties could not by such agreement confer upon it jurisdiction to try a case which it had otherwise no jurisdiction to try........when the attention of the Court in which the suit is instituted is drawn to a contractual stipulation of this land, the court may in the exercise of its discretion stay its hands and refuse to try the suit......... The prima facie leaning ofthe Court is that the contract should be enforced and the parties should be kept to their bargain. Subject to this prima facie leaning, the discretion of the Court is guided by considerations of justice, the balance of convenience, the nature of the claim and of the defence, the history of the case, the proper law....... If on consideration of all the circumstances of the case the Court comes to the conclusion that it will be unjust or unfair to stay the suit, the Court may refuse to grant the stay asked for.'
13. The plaintiff's counsel also relied on : 1SCR19 (Michael Golodetz v. Serajuddin & Co.) at p. 1046 as follows :--
'........It merely seeks to promote thesanctity of contracts, and for that purpose stays the suit. The jurisdiction of the Court to try the suit remains undisputed but the discretion of the Court is on the grounds of equity interposed !
14. The Supreme Court refused to grant stay in that case on the grounds mentioned at page 1047 :--
'It must be observed that having regard to the severe restriction imposed in the matter of providing foreign exchange to the individual citizens if would be impossible for the respondents to take their witnesses to New York and to attend before the arbitrators at the arbitration proceeding to defend the case against them and the proceeding before the arbitrators would in effect be ex parte. That would result in injustice to the respondents. Undoubtedly the appellants would be put to some inconvenience if they are required to defend the suit filed against them in India, but the High Court has considered the balance of convenience and the other circumstances and has came to the conclusion and in our judgment that conclusion is right that the facts established make out 'sufficient reason' for not granting stay.'
15. With great respect I fully agree with the principles laid down in the aforesaid twocases. In the present case, the plaintiff had deposited freight in Calcutta with the local agent of the defendants, the local agent, from its office at Calcutta informed the plaintiff that commission had become payable on 1-9-59. The plaintiff is strongly relying on this piece of admission by the local agent. The claim forms were submitted by the plaintiff at Calcutta with the local agent of! the defendants. In the written statement the main defence is that the plaintiff was directly or indirectly interested in a shipment by S. S. Janmada through Amin Chand Payare Lal and the ship belonged to Malabar Steamship Company of Bombay. Both Amin Chand Payare Lal and Malabar Steamship Co. have their offices in India. So the entire evidence in the suit is available in India. In case the suit was instituted in Sweden or other country mentioned in the said notice the whole lot of evidence had to be taken there which would require enormous expenditure, long time, extreme inconvenience and huge foreign exchange which the plaintiff was very unlikely to get. In the other hand, the defendants never seriously objected to the Jurisdiction of this Court in view of the fact that no application for revocation of the leave under Clause 12 of the letters dated was moved nor any stay application was taken out. On the contrary the defendants filed their written statement and contested the suit. The suit was instituted in 1962. If after the lapse of about 16 years and after the suit has been keenly contested by the defendants in this court, I exercise my discretion in favour of the defendants and dismiss the suit on the ground of jurisdiction, that would cause great injustice to the plaintiff. Relying on the aforesaid two authorities and considering the facts and circumstances of this case I hold that the balance of convenience always was and still is in favour of this suit being tried by this court.
16. In the premises, there will be a decree for Rs. 20,055.02 in favour of the plaintiff against the defendants. The plaintiff will be entitled to interim interest on the said sum at the rate of 12% per annum and interest on judgment at the rate of 6% per annum until realisation and costs. Certified for two counsel.