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Sundardas Thackersay and Bros. Vs. the New Commercial Mills Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 3371 of 1969
Judge
Reported inAIR1971Cal398
ActsArbitration Act, 1940 - Section 34; ;Code of Civil Procedure (CPC) , 1908 - Section 22
AppellantSundardas Thackersay and Bros.
RespondentThe New Commercial Mills Co. Ltd.
Advocates:Bhabra, Adv.
DispositionPetition dismissed
Cases Referred(The New Commercial Mills v. Sundardas Thackersay
Excerpt:
- .....this court and an appropriate court at ahmedabad both have jurisdiction to entertain or try the suit, the claim of the plaintiff which is involved in the present suit should be tried by an appropriate court at ahmedabad. the applicant has prayed for stay of this suit on the basis of the said term of the bargain between the parties.2. the claim of the plaintiff in this suit is for the recovery of a sum of es. 32,949.28 p. declaration that the accounts of the dealings and transactions between the plaintiff and the defendant upto july, 1969 stood settled and adjusted, declaration that the defendant is not entitled to claim rs. 10,92,491/- or any other sum from the plaintiff, perpetual injunction restraining the defendant or its agents or servants from claiming the said sum or any other.....
Judgment:
ORDER

Ghose, J.

1. This application has two parts. It is made for revocation of leave under Clause 12 of the Letters Patent granted to institute the suit being suit No. 3371/69 in this court on the ground that the balance of convenience of trying this suit is overwhelmingly in favour of a court at Ahmedabad, Secondly, this application is for stay of the suit filed in this court in view of a Clause contained in the agreement between the parties which provides that the claim of the plaintiff as made in this suit should be tried by a competent court in Ahmedabad. In other words, according to the applicant the parties bargained that although this Court and an appropriate court at Ahmedabad both have jurisdiction to entertain or try the suit, the claim of the plaintiff which is involved in the present suit should be tried by an appropriate court at Ahmedabad. The applicant has prayed for stay of this suit on the basis of the said term of the bargain between the parties.

2. The claim of the plaintiff in this suit is for the recovery of a sum of Es. 32,949.28 P. declaration that the accounts of the dealings and transactions between the plaintiff and the defendant upto July, 1969 stood settled and adjusted, declaration that the defendant is not entitled to claim Rs. 10,92,491/- or any other sum from the plaintiff, perpetual injunction restraining the defendant or its agents or servants from claiming the said sum or any other sum from the plaintiff and other reliefs. So far as the declaration and perpetual injunction part of the claim in the suit is concerned I am not called upon to decide at the present moment the maintainability thereof.

3. According to the plaintiff in this suit the plaintiff acted as commission agents for the sale of the products of the defendant company on the terms and conditions set out in paragraph 1 of the plaints from 1931 upto 1956. According to the plaintiff, the said terms and conditions were agreed upon orally by and between the parties and in any event must be implied from the course of dealings between them. The plaintiff also claimed an accounts of his acting as commission agent between 1956 and March 31, 1969 of the defendant company for the sale of the various products of the defendant company on the terms and conditions mentioned in paragraph 3 of the plaint. The said terms and conditions according to the plaintiff were agreed upon and in any event must be implied from the conduct and/or course of dealings between the parties. According to the plaintiff since 1956 the parties entered into written agreements in respect of their relationship of principal and commission agent but only some of the terms mentioned above would appear in the said written contracts between the parties.

4. The defendant in the petition filed in the Instant proceedings also agreed that between 1931 and March 31. 1956 the plaintiff acted as commission agent of the defendant company. The defendant had further stated in the petition filed in the instant proceedings that since April, 1956 from time to time the parties entered into written agreements on the basis whereof the parties had their relationship of principal and commission agent. The plaintiff acted as commission agent of the defendant company in respect of its products on the basis of the said written agreements since April, 1956,

5. From time to time the plaintiff sent statements of accounts to the defendant at Ahmedabad. From time to time the accounts between the parties is stated to have been settled also at Ahmedabad. The case of the defendant is that after appropriating the amounts paid from time to time to the defendant by the plaintiff a sum of Rs. 10,92,491.60 P. including interest became due and payable by the plaintiff to the defendant company in respect of the aforesaid transactions between the parties upto September 10, 1969. On October 23, 1969, the defendant company filed a suit in the City Civil Court at Ahmrdabad being Summary Suit No. 2196/69 (The New Commercial Mills v. Sundardas Thackersay & Bros.) Claiming Rs. 4,94,533.60 P. for principal and Rs. 2,71,331.17 P. for interest, aggregating Rs. 7,65,864.77 P. Prior thereto disputes and differences arose between the parties and correspondence were exchanged between them. The defendant company through its advocate demanded a sum of Rs. 10,92,491.60 P. from theplaintiff by a letter dated September 10, 1969 caused to be written by that advocate. The plaintiff company on the other hand claimed a sum of Rs. 32,949.23 P. In reply to the aforesaid letter of demand caused to be sent by the defendant company. The defendant came to know a copy of the Writ of Summons served upon them in October, 1969 that the plaintiff had already filed a suit in this court on September 29, 1969 for the recovery of the said sum of Rs. 32,949.28 P. In respect of the aforesaid transactions.

6. The plaintiffs suit being an earlier suit Section 10 of the Civil Procedure Code cannot be availed of by the defendant company. The defendant company hence made this application on the basis of the aforesaid term contained in the written agreement between the parties to wit Clause 34 as shown in a copy of the agreement annexed to the petition filed herein. The said clause provides as follows:

'34. That as this agreement has taken place in Ahmedabad, any legal proceedings with reference to price, damage, etc., arising out of and incidental to this agreement will be instituted in Ahmedabad only.'

7. Thus Mr. Bhabra, appearing on behalf of the applicant, submitted that the parties by this term agreed that this Court would not have any jurisdiction to entertain or try the disputes between the parties under or in respect of this agreement between the parties and the appropriate court in Ahmedabad only would have jurisdiction to try and entertain such suits between the parties. For the aforesaid reason this present suit being Suit No. 3371/69 ought to be stayed. Mr. Bhabra said that the 'etc.' in the aforesaid Clause 34 of the said agreement between the parties means 'and the rest' or 'and so forth and so on.' Thus the claim of the plaintiff in the instant suit under and in respect of the said contracts Is covered by the aforesaid Clause 34 and must be stayed. The word 'etc.' in Clause 34 may mean and include the claim for commission or on other account under the contract as claimed by the plaintiff in the instant suit but in my opinion I am not called upon to decide the said point in the instant application for reasons stated later. In the instant application for stay I have to see whether the claim as framed in the plaint is covered by the aforesaid Clause 34 of the said agreement.

8. It appears from a perusal of the plaint that the plaint covers claims for a period from 1931 up to 31st March, 1969. In any event and admittedly the transactions between the parties for the period prior to April 1956 were not covered by any written agreement and the said agreementunder which the parties carried on the transactions between 1931 and April 1956 did not contain admittedly any term similar to that as contained in Clause 34 of the written agreement. The claim in the instant suit is in respect of the entire transactions from the beginning, i.e., 1931 upto the end, i.e.. 31st March 1969. The claims as framed in the suit cannot be split up for any definite periods and it cannot be said that any part of the claim is covered by the written agreement between the parties.

9. Mr. Bhabra it seems realised this difficulty in his way and so filed a statement of account sent by the plaintiff to the defendant company for the period 1st January 1957 to 31st January 1957. The said account begins with a debit balance for the sum of Rs. 3,17,690-6-9 and Mr. Bhabra contends that if that account was sent by the plaintiff company it is binding upon the plaintiff company and therefore all accounts for the period prior to 1st January 1957 need not be gone into by and between the parties. But even an admission of a party in order to be binding upon the party should be shown to the party for his explanation if there be any under the Evidence Act before the Court can treat the said admission as binding. I asked Mr. Bachawat whether his client accepts the correctness of the said statement of account. Mr. Bachawat on instruction said that at the moment he cannot accept or admit the correctness of the said statement of account without going into the details of the accounts of the transactions by and between the parties. In that view of the matter the issue as to the account of the transactions by and between the parties for the period prior to April 1956 cannot be clinched in anyway in my opinion. Therefore in my opinion, the claim of the plaintiff in the instant suit with regard to the period prior to April 1956 has to be gone into since that is not covered by any term ousting the jurisdiction of this court. In that view of the matter I do not find any reason why this suit should be stayed only in part on the basis of the aforesaid Clause. This part of the applicant's prayer is therefore rejected.

10. With regard to the prayer for revocation of leave under Clause 12 of the Letters Patent no submission was made before me by Mr. Bhabra. Mr. Bhabra only stated that since this is a question of fact I should decide the said point on the basis of facts as pleaded in the pleadings by the parties.

11. Admittedly a part of the cause of action in the instant suit arose within the jurisdiction of this Court. Therefore the leave granted under Clause 12 of the Letters Patent can only be revoked if the court finds that the balance of convenience or trying this suit is overwhelmingly.

In favour of an appropriate court in Ahmedabad. The grounds for such revocation have been set out in paragraph 16 of the petition filed in the instant proceeding. The said grounds are as follows:

(1) The petitioner has no office in Calcutta;

(2) All the accounts of the commission were to be settled at the registered office of the company which is at Ahmedabad;

(3) The evidence of manufacture and amounts of commission and the records of the goods despatched are all lying at Ahmedabad;

(4) The fitnesses in connection of aforesaid are all available in Ahmedabad;

(5) The respondent has with a view to forestall the petitioner's claim mala fide instituted this suit in this Court.

12. It is true that all the accounts of the defendant company with regard to these transactions are at Ahmedabad. But the defendant has not given any particulars of any witness who may be necessary to be called at the trial in order to prove the case of the defendant company. In the absence of such particulars I am unable to act upon the said vague allegation mentioned about the witnesses in the petition. The balance of convenience must not be the balance of convenience of any particular party to a suit. The Court must take into consideration the balance of convenience of all the parties and the witnesses, if any, to be called at the trial. Only if it is found that permitting the suit to go on in this court1 would amount to injustice on the other party, then and only in that event the court must revoke the leave granted under Clause 12 of the Letters Patent, in my opinion, the defendant company has failed to give particulars of such evidence in its petition so that the court could come to a finding on the aforesaid question. In the premises I am of the view that this contention of the petitioner must also be rejected.

13. For all the reasons stated hereinbefore this application must fail and is dismissed. In the facts and circumstances of the case, I do not make any order as to costs. Operation of this order will remain stayed for 4 weeks from date.


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