BALDOTA BROTHERS Vs. LIBRA MINING WORKS

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THIS is an appeal by special leave against the order of Mody J., sitting on the Original Side of the Bombay High court, passed on the notice of motion taken out by the appellants to restrain the respondents from proceeding with the suit filed by them in the court of the Subordinate Judge, Kakinada, in the State of Andhra Pradesh, hereinafter called the Kakinada suit. The material facts relevant to the question raised are as follows: The appellants agreed to purchase from the respondents iron ore under four contracts. They also entered into three contracts with the respondents to act as their selling agents, and one of these contracts was dated 10/08/1956, and the other two were of 30/08/1956. All the said contracts expressly provided that all suits and legal proceedings in respect of disputes arising out of or in relation to the said contracts were to be instituted in courts in Bombay City only. On 23/01/1957, the respondents filed a suit, O. S. No. 16 of 1957, in the Kakinada court against the appellants for the recovery of a sum of Rs. 5,150.00 alleged to be balance due under the contract dated 10/08/1956, along with interest thereon, and a sum of Rs. 46,562.00 alleged to be balance due for goods supplied under the contract dated 17/10/1956. It may be mentioned at this stage that there is a controversy between the parties as regards, the contract dated 17/10/1956, the respondents alleging that the parties entered into a new contract on the said date in cancellation of that dated 30/08/1956, and the appellants stating that the alleged contract was not in cancellation of the earlier contract of 30/08/1956 but was only to confirm the terms of the earlier contract with a concession shown to the respondents enabling them to supply only 3,000.00 tons of iron ore instead of 7,000.00 tons. The said suit was filed on 23/01/1957. To that suit, the appellants, their partners and the Manager of their firm were made parties. Notices were served on them on 8/08/1957. At first there was an order for ex parte hearing <PG>102</PG> but later on the ex parte order was set aside. The appellants (defendants in the Kakinada court) filed their written-statement on 17/09/1957, denying, inter alia, the existence of the contract dated 17/10/1957, and also pleading that the Kakinada court had no jurisdiction to entertain the suit. On 25/11/1957, issues were framed, and one of them was whether the Kakinada court had jurisdiction to entertain the suit. On 21/01/1958 i.e., one year after the institution of the suit in the Kakinada court, the appellants filed a suit. Suit No. 62 of 1958, on the Original Side of the Bombay High court claiming to recover a sum of Rs. 74,346-9-0 from the respondents. In that suit, the appellants claimed the following four items, totalling a sum of Rs. 74,34619-0: <FRM>JUDGEMENT_100_AIR(SC)_1961Html1.htm</FRM> The first item is alleged to represent the amount settled as payable by the respondents to the appellants on the settlement of the disputes between them in regard to the aforesaid contracts. Items 2 and 3 are the amounts alleged to have been paid by the appellants for and on behalf of the respondents to the persons who purchased goods of the respondents towards destinational shortage. The last item is said to be the amount paid by the appellants to the clearing agents of the respondents' firm by honouring a hundi drawn on the respondents by the clearing agents. The Kakinada suit was posted for bearing on 12/09/1958; but the appellants took out a notice of motion in the Bombay High court on 2/09/1958 and obtained interim injunction restraining the respondents from proceeding with the Kakinada suit pending the disposal of the suit filed in the Bombay High court. In the affidavit filed in support of the notice of motion the appellants alleged that the whole cause of action arose in Bombay, that the Kakinada court had no jurisdiction to entertain and try the suit as it was agreed to between the parties that disputes under the contracts should be decided only in courts in the Bombay City and that the whole object of the respondents was to drag the appellants to the Kakinada court and thereby defeat and delay the payment of the dues to the appellants. They also alleged therein that the proceedings adopted by the respondents were vexatious, oppressive and were in abuse of the process of the court. The respondents filed a counter stating that the subject-matter of the suit in the Bombay High court and that in the Kakinada court were totally different, that the conduct of the appellants in obtaining interim injunction after the date of hearing was fixed in the Kakinada court at their request was dishonest and that the respondents were "trying all sorts of device" to prevent the disposal of the Kakinada suit. In support of their allegation that the Kakinada court had jurisdiction to try the suit, they relied upon a letter dated 17/10/1956, where under, it was said, a new contract was entered into between the appellants and the respondents in respect of 3000 tons of iron ore, and they further alleged that the Bombay court had no jurisdiction in respect of the said goods as the entire cause of action arose only within the jurisdiction of the Kakinada court. Mody J., who heard the application, by an order dated 25/10/1958, dismissed it without recording any reasons for doing so. We are informed by the learned Solicitor-General that the well established practice of the Bombay High Court on the Original Side has been ordinarily not to give any reasons for the dismissal of such applications, presumably because it was held by the Bombay High court that no appeal lay against an order dismissing a petition for injunction on the ground that such orders did not come within the meaning of the word "judgment" used in the Letters Patent. As no appeal lay under the Letters Patent, the appellants directly approached this court and obtained special leave under Art. 136 of the Constitution.

(3.) IN the result, the appeal fails and is dismissed with costs.