1. This is an appeal from a decision of Sen J., given on 6th April 1939 whereby he refused to revoke the leave which had been granted for the institution of this suit under Clause 12, Letters Patent, and further refused to stay the suit. The suit was brought by the plaintiff, Ali Mahomed Ebrahim Shakoor against the six defendants: (1) Adam Hajee Peermahomed Essack, himself, (2) Adam Hajee Peermahomed Essack, as Manager of Peer Mahomedi Fund, (3) Ahmed Hajee Peermahomed, (4) Abdul Karim Adam, (5) Talyub Ali Mohamed and (6) Hajee Adam Abdul Shakoor. The application for revocation of the leave and for stay of the suit was made by Hajee Adam Abdul Shakoor, defendant 6. Previously there had been an application for stay of the proceedings made by Adam Hajee Peermahomed Essack, defendant 1, but by a consent order made in that application (to which the present defendant was not a party) the suit was allowed to proceed on the plaintiff giving security for costs to the extent of Rs. 5000. It was agreed that the contention of the plaintiff that he was a resident of British India was still open to him, and also that it was still open to the defendants to contend that the Court had no jurisdiction to try the suit. The present applicant-defendant 6-is described as the manager of defendant 1. The suit itself is for a declaration that the partnership alleged to exist between the plaintiff and the defendants stands dissolved on and from 3rd February 1936, alternatively, for a decree dissolving the partnership. There are further claims for declarations as to the validity and operation ,of a document dated 27th January 1936.
2. The parties, it is agreed, are all natives of the State of Bantva. The plaintiff alleges that a partnership existed for many years amongst the parties and that it was renewed from time to time. The amount of the partnership assets is very large amounting to many lacs of rupees. The plaintiff alleges that the last agreement for partnership was entered into between the parties on 15th December 1934, the term of the partnership beginning on 12th July 1935, and lasting for some 11 to 15 months from that date. The plaintiff alleges that after the last term of the partnership expired the accounts were not adjusted, that all the account books were in the possession of the defendants other than defendant 5, and that defendant 1 refused to allow inspection of the books and accounts, or to make up or adjust the accounts. The plaintiff also alleges that on or about 3rd February 1936, defendant 1 by false and fraudulent representation and undue influence and coercion caused the plaintiff to sign a document dated 27th January 1936 and have the same registered. The effect of that document was to settle the amount of money the plaintiff was entitled to under the agreement. It is in respect of the operation of that agreement, and the settlement of the dispute under it mentioned, that these proceedings have been brought.
3. The plaintiff alleges that the partnership business was carried on in Calcutta and other places in India and that the head office of the partnership firm was situate in Calcutta. The plaintiff also alleges that all the parties at all material times have been carrying on business in Calcutta, and that the cause of action arose partly in Calcutta and partly elsewhere. Leave was granted by Panckridge J., under Clause 12 of the Letters Patent to commence this suit in this Court. The plaint was filed on 25th June 1938. The written statement of defendant 1 was filed on 10th August 1938, and the written statements of the other defendants including defendant 6, on 7th November 1938.
4. Defendant 6 - the present appellant - contends in para. 13 of his written statement that by the agreement of 15th December, 1934 it was expressly provided that the parties thereto would have no right to institute any legal proceedings in respect of the said business at any other place than Bantva or Rajkot, and that the plaintiff in violation of that agreement has instituted this suit in the Calcutta High Court. He also contends in para. 14 of his written statement that this Court has no jurisdiction to entertain or try this suit. In support of the application to revoke leave and the application for stay defendant 6 filed a translation of the agreement of 15th December 1934. The translation is stated to have been made by an 'authorised translator in the Kathiawar Agency. Paragraph 9 of that agreement sets out certain terms and one of them is stated to amount to an agreement to have any disputes arising out of the business settled in the Court at Bantva or at Rajkot and nowhere else. The plaintiff contends that that translation is not correct and is not admissible by reason of the rules of this Court. The rule upon which he relies is Rule 25, chap. IV of Rules of the Original Side of this Court, which provides:
Translation of a document in a language which the translators do not know shall be made by special translators, if any, appointed by a Judge. Applications for such translations shall be made to the Registrar who shall forward the same to the special translators. In the absence of special translators, the document shall be translated by a person who knows both such language and English, and the document shall not be accepted in evidence, unless accompanied by the translation and an affidavit of such person, stating that he knows such language and English, and that he has truly and faithfully translated the document ....
5. The document is in Gujerati and this Court has not on its staff any translators competent to translate Gujerati into English. It will be noticed that the translation offered by defendant 6 is not a translation made by any special translator appointed by a Judge. It is by a translator whose name cannot be read, and the translator has made-no affidavit stating that he knows such language and English and that he has truly and faithfully translated the document. The plaintiff in opposition has put forward a translation of the same document which is made by a gentleman resident in Calcutta and supported by an affidavit of that gentleman that he knows such language and English and that he has truly and faithfully translated such document. The relevant passage in para. 8 of the plaintiff's translation reads as follows:
That the year of this business is to be counted for eleven and fifteen months from 12th July 1934 as you or your heirs desire and the annual account of its profit and loss is to be written in the month of Bhadarva or Asu of Sambat 1991 or before it and we are to receive our pay according as you or your heirs write profit or loss per share and get the same written. The amount due to us, after the adjustment of the accounts, has been decided to be paid to us only at Bantwa on the second of the bright half of Magsar of Samvat 1992, or, if you so desire, before this, in cash or notes or demand draft on Bombay.
6. Then follows the part which is especially relevant:
And if we have any complaint about this business it shall be done at Bantwa or Rajkot. We have no right of complaint at any other place except at Bantwa. We make this clear condition because all the accounts are kept at, Bantwa.
7. The learned Judge was of the opinion that the plaintiff's translation verified by affidavit according to the rules was the only one which he could have recourse to in order to decide whether the parties have agreed to litigate the difference arising out of this business at Bantva or Rajkot, and nowhere else, and he was of the opinion, after perusing the plaintiff's translation, that he was unable to say from that document that the plaintiff had divested himself of his right to bring this suit in this Court. If the defendant's translation is accepted it is much more difficult for a Judge to say that the plaintiff had not divested himself of his right to bring this suit in this Court. We thought it desirable to pursue the correctness of the translation further. Although there is no regular translator of Gujerati on the staff of this Court, there is in Calcutta close-by a business gentleman who on occasions does translations from Gujerati into English for the Court. We requested the Registrar to send for that gentleman and he came and we asked him to translate the paragraph in question from Gujerati into English. He did so and we have a copy of his translation before us. I do not think it necessary or even desirable to say what the words of that translation are in view of the course this case may take afterwards, but I do want to say that the translation which we obtained this morning does not agree either with the translation put forward by the plaintiff or the translation put forward by defendant 6.
8. The application to revoke the leave given under Clause 12 of the Letters Patent is put forward on two grounds. The first is that all the parties are natives of Bantva and speak Gujerati and that as under the agreement the books had to be kept at Bantva, Calcutta is not a suitable forum in which to litigate the disputes between the parties. The second ground is that the parties have by the clause in question of the agreement agreed to litigate their differences at Bantva. The stay of proceedings is asked for solely on the ground that the parties under the clause in question have agreed to litigate at Bantva or Rajkot and not elsewhere. As regards the balance of convenience the plaintiff says that the firm in question was registered as a partnership in Calcutta by the partners, that the head office is in Calcutta and that the books of partnership are kept in Calcutta. Whether the plaintiff is right about this or defendant 6 must be a question of evidence. As regards the second allegation, namely that the parties have excluded the jurisdiction of the Calcutta Court in favour of the Court at Bantva, that involves firstly a question of translation and secondly, when the translation has been obtained, the question of the construction of the document. Therefore, before the Court can decide whether the leave ought to be revoked on either grounds of convenience or of submission to another tribunal, evidence must be given, translations must be made and arguments as to the construction of the document must take place. And again before the Court can grant a stay there must be same translation made and arguments as to construction heard. I am satisfied that both the translations of the documents and the true construction of para. 8 of it are matters of some difficulty. A position of this sort was discussed in Secretary of State v. Golabrai Paliram : AIR1932Cal146 where a question arose whether an application to revoke leave under Clause 12 of the Letters Patent should be granted. The facts are not very material, but at page 153 Sir George Rankin used these words:
I do really protest against questions of difficulty and importance being dealt with by an application to revoke the leave under Clause 12 of the Letters Patent and to take the plaint off the file. Normally it is well settled that the proper way to plead to the jurisdiction of the Court is to take the plea in the written statement and as a substantive part of the defence. Except in the clearest eases that should be the course.
9. I respectfully agree with the words just quoted and they seem to me to dispose of the defendant's application to revoke the leave which has been granted under the Letters Patent. There were questions of importance and difficulty to be dealt with here before the learned Judge could revoke the leave which has been granted. As regards the application to stay the proceedings on the ground that the parties have agreed to litigate in another forum it seems to me that the position is the same. A case was before the Court of appeal in England in 1935, St. Pierre v. South American Stores (Gath and Chaves) Ltd. (1936) 1 K B 382. The headnote reads as follows:
The appellants (defendants in the action), two English companies, having their head offices in London but carrying on business exclusively in South America, were jointly liable to the respondents (the plaintiffs in the action) for rent in respect of premises occupied by one of them in Chile under a lease drawn in the Spanish language according to Chilean law and executed by all parties in Paris by which also all parties elected domicil in Chile. The rent stipulated by the lease was 93,500 pesos of 183,057 millionths of a gramme of fine gold monthly which was to be paid at the option of the lessors either in Chile or remitted to Europe according to their instructions.
Disputes having arisen between the parties in view of Chilean legislation which the appellants contended prevented them remitting the rent from Chile without official authorization by the Chilean. Government, which authorization had been refused, the appellants commenced proceedings in. Chile which were still pending, claiming a declaration that the rent could lawfully be paid in notes of the Banco Central de Chile. The respondents having brought the present action in England claiming payment of the rent in sterling equivalent to 183,057 millionths of a gramme of fine gold the appellants applied under Section 41, Judicature (Consolidation) Act, 1925, to have it stayed as being vexatious and oppressive. Porter J., refused a stay.
10. On appeal the decision of Porter J., was affirmed and in his judgment at page 393 Greer L. J. used these words:
The fourth ground on which it is alleged that the action should be stayed is that it is contended that the effect of the agreement is to give exclusive jurisdiction to the Courts in Chile. This is a matter that cannot be determined upon affidavits. It might of course be Bet down as a preliminary question of law, but it seems to me that it will be more convenient that it be treated as one of the matters which will fall to be determined when the action comes on for trial.
11. We are asked in the present proceedings to use the powers given to us by Section 151, Civil P. C., to stay this suit on the ground that it ought to have been brought elsewhere. For the reasons I have set out above, it is clear that questions of difficulty both as regards translation of the document from Gujerati into English and construction of the same afterwards have to be dealt with by the Court before it can be decided whether the clause in question does contain an agreement between the parties barring the jurisdiction of this Court. It seems to me that 'the reasons given by Greer L. J. in St. Pierre v. South American Stores (Gath and Chaves) Ltd. (1936) 1 K B 382 apply here. In order that the position shall be clear when the suit goes to Court of first instance I wish to cite the words of Sir George Rankin in Secretary of State v. Golabrai Paliram ('32) 19 AIR 1932 Cal 146 at page 153:
The matter must be gone over again at the proper time and upon proper materials. The learned Judge, who will deal with these points, will not be bound by opinion expressed in the judgment under appeal. I do not propose to try to solve the difficulties in advance. The matter will be entirely open to him.
12. For these reasons I am of the opinion that the learned Judge in refusing to revoke the leave which has been granted, and in refusing to stay this suit, was right and I am further of the opinion that this appeal must be dismissed with costs.
13. I agree.