UNION OF INDIA Vs. NAVIGATION MARITIME BULGARE

JUDGEMENT

(1.) This is an application for a stay of a suit. The petitioner is a company incorporated under the laws of Bulgaria and carries on business as a carrier of goods by sea. The petitioner is registered in Bulgaria. It is stated that on the 17th August, 1970 by a charter party entered into at Sofia, Bulgaria the petitioner chartered its vessel to Messrs. Chimiport of Sofia for carrying 10,000 metric tonnes, 5 per cent, more or less, of urea in bags from the Bulgarian Port of Bourgas to 1/2 Ports in India under the terms and conditions contained in the said charter party. In pursuance of the said charter party, it is alleged by the petitioner that the petitioner delivered in September, 1970 the said vessel to the charter at the Port of Bourgas where a quantity of urea in bags stated by the charterer-shipper to be 1,97,000 in number was shipped on board for carriage to India. A bill of lading dated 26th September, 1970 covering the said shipment was issued by the petitioner at Bourgas to the shipper. In the said bill of lading the number of bags shipped on board the vessel as aforesaid was declared by the shipper to be 1,97,000 and their weight as 9,850 metric tonnes. The petitioner further alleges that the petitioner does not admit the correctness of the declarations and the said bill of lading did not contain any acknowledgment or admission. The said bill of lading, inter alia, contained the following clauses:

(2.) The said vessel arrived at the port of Vishakhapatnam on or about 20th November. 1970 and a part of the cargo covered by the said bill of lading was discharged at the Port by the Food Corporation of India. It is stated that the officers of the said vessel kept a tally of the number of bags that were discharged from the vessel at Visakhapatnam. From Visakhapatnam the said vessel came to the Port of Calcutta on or about 9th December, 1970 and there discharged the balance of her cargo which was taken delivery of by the said Food Corporation of India. On of about 14th December, 1971, the plaintiffs being the Union of India and Food Corporation of India instituted a suit against the petitioner for the sum of Rs. 1,76,425.78 paise for the alleged failure to deliver some of the cargo as stated in the plaint The plaintiff Union of India claims to be the owner of the said goods and the plaintiff No. 2, Food Corporation of India the endorsee of the bill of lading. There was correspondence prior to the institution of the suit. It appears that the main dispute between the parties, as alleged by the petitioner, is that while it was alleged in the bill of lading that 1,97,000 jute bags had been shipped at the port of shipment, actually it was 1,500 bags short shipped of the aforesaid quantity. The main poult of dispute is as to what quantity was discharged at the port. It is alleged that 245 metric tonnes have been short delivered and discharged to the plaintiffs n the suit. Upon the suit being filed the defendant being the petitioner herein was served with Writ of Summons in March, 1972 and it has made the instant application in August, 1972 for the stay of the suit.

(3.) It is not necessary for me to refer to the numerous decisions on this aspect of the matter. The principles are now well-settled. In the case of Messrs. Lakhmi-narayan Ramniwas y. Lloyd Triestino Societa Per Azinni Di Navigaziene Sede in Triesta, it was held that the principles upon which the Court should exercise its power and jurisdiction in cases of this type were that the Clauses excluding the jurisdiction or vesting the jurisdiction on a particular forum did not oust the jurisdiction of this Court if this Court had otherwise jurisdiction. The jurisdiction of the Court to try such a suit was vested in it by the Letters Patent and by the Constitution. Parties could not by a private agreement, whether such agreement had been entered into in India or outside India, take away a jurisdiction which was vested in this Court to try the suit just as the parties could not by such agreement confer upon it jurisdiction to try the case which it had otherwise no jurisdiction to try. In general the Court would compel the parties to abide by then- contracts. But in such a case when the, attention of the Court was drawn to the contractual stipulation of this kind the Court might in the exercise of its discretion stay its hand and refuse to try the suit until the competent judicial authority to whose decision the parties had agreed to submit their disputes had pronounced its decision. In those circumstances the Court acted upon the principle that the Court would compel the parties to abide by then- contracts and if on a consideration of the circumstances of the case the Court came to the conclusion that it would be unjust or unfair to stay the suit, it might refuse to grant the stay asked for but not otherwise. Therefore the principle seems to be that the parties are bound by the contract. But if taking into consideration the entire facts and circumstances of the case it appears to the Court that it would be unfair or unjust to stay a suit because of the contract the Court would refuse to grant a stay. Similar principle was reiterated in the case of Swedesh East Asia Company Ltd. v. B. R. Herman and Mohatta (India) Pvt. Ltd.. Counsel for the respondent contended before me that the clauses in those cases were different from the clauses in the instant case excluding the jurisdiction of this Court. So far as the decision in the case of is concerned it is apparent that the clause was different in the sense that the clause in that case was more exhaustively worded to the extent that the clause excluded the jurisdiction of this Court. That part of the clause has to be ignored being a bargain which is illegal. So if that part of the clause of agreement is ignored there in so far as the agreement of the parties stipulated to have the dispute agitated before the Bulgarian forum is concerned both the cases are the same. In this case, therefore, I have to consider what will be the proper law of con-tract in this case and what is the nature of the dispute and what is the evidence necessary and where such evidence is available and the respective convenience and inconvenience of the parties. It appears that the dispute is mainly on two points, namely, what was the actual quantity shipped and what was the actual quantity landed at Visakhapatnam. In respect of the dispute as to what was the quantity shipped in Bulgaria, the evidence of the Master, the Chief Officer and the other records will all be available in Bulgaria. As to the quantity actually delivered or discharged at Visakhapatnam though no evidence would be available at Calcutta, a part of the evidence would be available at Visaknapat-nam; but the other part, namely, the tally is available in Bulgaria. Parties have chosen Bulgaria to be the forum. It appears to me that part of the dispute will have to be decided according to the Bulgarian law and part according to the Hague Rules and when there is a conflict between the two, it would be a matter of interpretation. After all the Court in judging a case of this type should also consider the present trend of the international trade and in this connection it would be relevant to refer to the recent decision of the United States Supreme Court in the case of Zapata Off-Shore Co. v. The "Bremen" and Unterweser Reederei G. M. B. H. (The "Chaparral"), reported in 1972 (2) Lloyd's Law Reports at page 315 where the Chief Justice Burger observed at page 318 as follows: