EMMSONS INTERNATIONAL LTD Vs. METAL DISTRIBUTORS UK

JUDGEMENT

(1.) M/s. Metal Distributors (UK) Limited-defendant No. 1 who is facing a suit filed by the plaintiff for the recovery of a sum of Rs. 30,61,1457- for the alleged defective supply of Copperwire bars has filed this application under Order VII Rule 11 read with Section 151, CPC praying for rejection of the plaint or for its return to the plaintiff for presentation in the Court of competent jurisdiction i.e. English Courts. It is alleged in the application that the suit of the plaintiff is based on a contract dated 5.11.1996 entered between defendant No. 1 applicant through their agents Binani Metal Ltd.- defendant No. 2 for supply of continuous cast Electrolytic Copper Wire Rods at a price of USD 2194 per Metric Ton, CIF Bombay. The contract entered into between the parties is stated to be an international commercial contract containing Clause 13 which provides for the dispute redressal mechanism through arbitration and that the contract shall be construed in accordance with and governed by English Law. It is the case of defendant No.1 applicant that the parties once having agreed that the contract shall be governed by a particular law, only that law will govern the contract and consequently only the Courts of that country which are competent to administer the law of the said country and no other Court would have the jurisdiction to entertain any disputes arising out of the said contract.

(2.) The plaintiff has opposed the application and filed a reply not disputing that the claim in the suit filed by the plaintiff is based on the contract entered into between the parties which contain a clause i.e. Clause 13 "Governing Law and Forum for Resolution of disputes" but it is stated that reference to the said clause is wholly out of context; jurisdiction cannot be conferred or vested upon/ in a Court of law merely by an agreement between the parties where the Court inherently lacks jurisdiction in the matter. It is also alleged that the plea of defendant No. 1 is not tenable because the defence of both the defendants has been struck off by the Court vide an order dated 21.3.2001 as they failed to file the written statement despite opportunities allowed for the purpose. It is stated that this Court has the necessary territorial jurisdiction to entertain and try the present suit. The application is stated to be mala fide, having been filed more than three years after the institution of the suit and suffers from delay and laches amounting to acquiescence. It is denied that either the plaint is liable to be rejected or returned to the plaintiff for presentation before the Competent Court.

(3.) I have heard Mr. Atul Sharma, learned Counsel representing defendant No. 1-applicant and Mr. V. K. Sharma, learned Counsel representing the plaintiff-non-applicant and have given my thoughtful consideration to their respective submissions.