Skip to content


Sanjay Trading Company Vs. Dal Chemical N.V. and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberSuit No. 241 of 1976
Judge
Reported inAIR1978Cal397
AppellantSanjay Trading Company
RespondentDal Chemical N.V. and ors.
DispositionApplication dismissed
Cases ReferredMukherjee v. Barhoo Mahto
Excerpt:
- .....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.....
Judgment:
ORDER

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. : AIR1952Cal645 and Rekhab Chand Jain v. Paras Das Bhartiya, : AIR1970Cal394 . 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 ground of balance of convenience. (See Parasram Harnandrai v. Chitandas, : AIR1952Cal82 .

6. Even apart from the above, Mr. Shome appearing on behalf of the plaintiff has taken a very vital point. It is urged that the revocation of the grant of leave under Clause 12 is a discretionary order and such discretion should not be exercised if the defendant is guilty of gross delay. Here the facts would show that the defendant has not applied at the earliest opportunity and has allowed the suit to reach the hearing stage by taking the following steps. After the suit was filed on April, 29, 1976 the writ of summons was served on the defendant No. 1 on Aug, 31, 1976. Thereafter on Sept. 18, 1976 the petitioner entered appearance and on Nov. 3, 1976 made an application, inter alia, for extension of time to file the written statement and obtained an older on Dec. 21, 1976 extending such time till 21st Feb. 1977. Thereafter on 18th Feb. 1977 the defendant No. 1 for the second time made an application for particulars asked for by their letters dated 1st Dec. 1976. By an order dated 21st April, 1977 inspection of certain letters was directed and the time to file the written statement was extended till a fortnight and directions for early hearing were also given. The suit was directed to appear in the prospective list 8 weeks hence. Thereafter inspection was offered to the petitioner between 22nd April, 1977 and 27th April. 1977. Even thereafter the defendant No. 1 did not file its written statement and on 5th May, 1977 for the third time made the application for ex-tension of time to file its written slate-ment. Thereafter on 24th May, 1977 an order was made extending the time to file the written statement upon payment of costs assessed at 20 G. Ms. Thereafter on 26th May, 1977 the written statement was filed after payment of costs. On 22nd Aug. 1977 the plaintiff affirmed its affidavit of documents but even then nothing was done on behalf of the petitioner until 1st Dec. 1977 when the present application was affirmed. Thereafter on 23rd Dec. 1977 the petitioner took out the Notice of Motion herein.

7. The suit is now almost ripe for hearing and it would undoubtedly cause prejudice to the plaintiff if the grant of leave under Clause 12 is revoked at this stage of the proceeding. The application has to be made at an earlier stage of the suit. Even no satisfactory reason has been given as to why at this stage the petitioner thought it fit to make this application. (See Madan Lal Jalan v. Madanlal AIR 1949 Cal 495). In the case of Chit-taranjan Mukherjee v. Barhoo Mahto, : AIR1953SC472 , the Supreme Court held that the proceedings in the suit had been allowed to reach a stage where it would result in a grave injustice if the court were to hold that the forum convenient was not the court where the suit was filed. Under such circumstances it was held that leave granted should not be revoked.

8. It is true that in the Supreme Court case the defendant took the advantage of participating in the interlocutory proceeding but in the facts and circumstances of the case before me also, I consider, that delay herein is of a serious nature and leave should not be revoked at this stage.

9. The result therefore is that the application must be and is hereby dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //