Swedish East Asia Company Ltd. vs B.P. Herman And Mohatta (India) Private ... on 5 January, 1962
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.