Chamber Summons No. 1415 of 2011 in Suit No. 2263 of 2010. Case: Traxpo Enterprises Pvt. Ltd. Vs Kolmar Group AG. Bombay High Court

Case NumberChamber Summons No. 1415 of 2011 in Suit No. 2263 of 2010
Party NameTraxpo Enterprises Pvt. Ltd. Vs Kolmar Group AG
CounselFor Respondents: Darius J. Khambata, Senior Advocate, Vikram Deshmukh, Akhita Buch and Bhavesh V. Panjwani i/b. Mulla & Mulla & C.B.C.
JudgesK. R. Shriram, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order VII Rules 11, 11(d); Indian Contract Act, 1872 - Sections 23, 28
Judgement DateApril 13, 2016
CourtBombay High Court

Judgment:

K. R. Shriram, J.

  1. This chamber summons is taken out by the defendant to revoke the leave granted to the plaintiff under Clause 12 of the Letters Patent and in the alternative and without prejudice to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908.

  2. On or about 27th/28th August, 2007 the defendant agreed to buy and the plaintiff agreed to sell 15,000 metric tons Methanol +/- 5% at buyer's option at USD 255.00 per metric ton and optional 2000 - 3000 metric tons of cargo +/- 5% in buyer's option at USD 265.00 per metric ton and in each case FOB Kandla for shipment within September, 2007. The contract is evidenced by two faxes sent on 28th August, 2007 from the defendant to the plaintiff. For the purpose of this chamber summons, clause 13 and clause 14 of the contract are relevant and the same read as under:--

    (13) - Governing Law:

    This contract shall be governed and construed in accordance with the laws of England (without reference to any conflict of law rules). The United Nations Convention of on contracts for the International scale of goods shall not apply to this contract.

    (14) - Jurisdiction:

    Each party expressly submits to the jurisdiction of the High Court of London without recourse to Arbitration.

  3. Therefore, the contract expressly provided that it was subject to English Law and the parties had submitted expressly to the jurisdiction of the High Court of London.

  4. The defendant filed a suit in the High Court of Justice Queen's Bench Division Commercial Court claiming damages for restitution, for short delivery, for demurrage paid to the vessel owners and shifting expenses. The plaintiff entered appearance and also filed their statement of defence. They also participated in pre-trial discussions but failed to serve any witness statement. The plaintiff did not participate in the trial. The English Court went ahead with the matter and passed a decree dated 1st February, 2010 by considering the matter on merits in favour of the plaintiff. The English Court was pleased to award judgment in the sum of USD 2,235,737.27 in favour of the defendant. Though the plaintiff did not appear or participate at the hearing of the suit, the English Court considered the evidence filed by the plaintiff, the defence raised in the statement of defence and gave its judgment dated 1st February, 2010 on merits. It was an ex-parte decree but on merits.

  5. On 20th July, 2010, after the English Court delivered its judgment against the plaintiff, the plaintiff filed a petition for leave under Clause 12 of Letters Patent and applied to this court for leave to file this suit. Paragraph 16 of the plaint reads as under:--

    16. The plaintiff states that the plaintiff is having its administrative office at Bombay. The entire contract was agreed and entered into at Bombay. The inspection for transshipment of the goods took place in Bombay. The goods were to be transshipped from Kandla to United States of America and therefore, part of the cause of action has arisen within the jurisdiction of this Hon'ble Court and therefore, upon grant of leave under Clause 12 of the Letters Patent this Hon'ble Court would have jurisdiction to entertain, try and dispose of the instant suit.

    Paragraph 4 of the Leave Petition reads as under:--

    4. The petitioner carried on its business in Mumbai. The order was placed upon the petitioners Mumbai. The respondents were supposed to make payment of the amounts in Mumbai. Therefore, the material part of the cause of action has arisen in Mumbai. However, the respondents carry on their business from Switzerland and the goods were delivered at Kandla. Thus a part of cause of action has arisen outside the jurisdiction of this Hon'ble Court. Hence, upon leave being granted, under Clause XII of the Letters Patent of this Hon'ble Court, therefore, this Hon'ble Court shall have jurisdiction to entertain and try and dispose of the present suit.

  6. In view of the averments made by the plaintiff as above, this court was pleased to grant leave under Clause 12 of the Letters Patent and assumed jurisdiction. The plaintiff thereafter lodged the plaint on 26th July, 2010.

    It is important to note that the plaintiff, though has annexed a copy of the contract, has not averred or highlighted anywhere in the plaint that the contract provided for...

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