SUSTAINABLE EMS LLC Vs. LEE HARRIS POMEROY

JUDGEMENT

(1.) This is an application by the first defendant. They are an American Company, having their head office in Broadway, New York. They want dismissal of the suit filed by the plaintiff, also an American Company, having their head office in Jersey City, New Jersey. Reliefs are claimed only against the first defendant. The second defendant did not appear at the hearing of this application. The third is a proforma defendant. The sum claimed in the plaint is Rs. 1,69,75,485/- together with interest @ 18% per annum. Whether the interest claimed is simple or compound is not mentioned.

(2.) The first defendant wants dismissal of the suit mainly on the ground that it ought to have been filed in a Court in the United States of America. The most formidable point raised by the first defendant is the lack of jurisdiction of this Court on account of the forum selection clause in the agreement of 29th July, 2009 between the plaintiff and the first defendant. This agreement is a subcontract which the first de- fendant had awarded to the plaintiff. The main contract was between the first defendant and the second defendant Kolkata Metro Rail Corporation Ltd. The forum selection clause is Article 9, which I read in full:

(3.) According to this sub contract only the federal and state Courts located in the city of New York in the United States of America have the jurisdiction to entertain the dispute.