- (1.) THIS is an appeal against a judgment of Mr. Justice Mody and the learned Judge begins his judgment by stating: "this is a normal case wherein abnormal developments have taken place". We wholly subscribed to that proposition. We might add that this is not only a normal case but a very simple case where every conceivable technical defence has been taken in order to put off the evil day when judgment will be passed against the respondents, who are the defendants in the suit. Mr. Thakore, who has done his best for his client, realising how dishonest the defence was and arguing before what he might have felt a very hostile Bench, did not omit to put before us every possible circumstance which could help his clients. But the. more he argued the more we felt that the attempt was, as Mr. Thakore frankly conceded, to see that the judgment was delayed as far as possible, and Mr. Thakore also told us that as his clients were not in a position to pay any amount at all it did not matter to them whether heavy costs were incurred and the litigation became as protracted as possible. According to Mr. Thakore, his clients might as well be adjudicated insolvent for a larger amount as for smaller amount and perhaps they prefer to be adjudicated later for a larger amount than for a smaller amount at present.
(2.) NOW, the suit out of which this appeal arises is substantially based on a foreign judgment and in the alternative on an award given by a domestic tribunal functioning in New York and the judgment and the award came to be given under the following circumstances. The plaintiff company was incorporated in the State of New York and the defendant company, it is alleged, was at the relevant time carrying on business in Bombay, and the case of the plaintiffs was that by two letters dated 7-9-1948 and 13-9-1948, the first written by the plaintiffs and the second by the defendants, the terms of business were agreed upon between the parties. The terms with which we are concerned were that the business was to be done on the terms of the American Spice Trade Association contract with a letter of credit to the extent of 95 per cent to be opened by the plaintiffs. Pursuant to these terms of business, according to the plaintiffs, two contracts were entered into. By these contracts it is alleged by the plaintiffs that the defendants agreed to sell certain number of tons of spices to the plaintiffs. The plaintiffs opened the letter of credit as required by the terms of business, but ultimately the defendants failed to supply the goods and committed a breach of the contract. Thereupon, pursuant to the American Spice Trade Association contract the plaintiffs required that the dispute between the parties should be referred to arbitration. It was so referred, although the defendants did not nominate their own arbitrator or appear before the arbitrators who ultimately entered upon the arbitration. An award was made and a decree was obtained on this award from the Supreme Court of the State of New York. The plaintiffs then came to this Court to enforce that foreign judgment and in the alternative they asked for relief on the basis of the award itself. The learned Judge raised various issues and ultimately dismissed the plaintiffs suit.
(3.) THE first issue that we have to consider is the issue of jurisdiction. Now, it is normal to look to the jurisdiction clause in the plaint in order to ascertain what are the various facts on which the plaintiff is reiving as conferring jurisdiction upon the Court, and when we turn to para 10 of the plaint it is averred: "the defendants used to carry on business and reside in Bombay. Their present whereabouts are not known. But the terms of business were accepted by the defendants in Bombay and the proposal of acceptance of the said contracts by the defendants took place in Bombay. The defendants' refusal to pay the said sum also took place in Bombay. A material part of the cause of action took place in Bombay and with leave granted under clause 12 of the Letters Patent this Hon'ble Court has jurisdiction to try this suit. " In fact leave was granted under clause 12. Considering this paragraph it is clear that the averments with regard to the carrying on of business and residence in Bombay cannot confer jurisdiction upon the Court. The defendants must carry on business or reside within jurisdiction at the date when the plaint is presented to the Court and the fact that the defendants used to carry on business or used to reside in Bombay cannot help the plaintiffs to invoke the jurisdiction of this Court. Mr. Thakore may be right that to the extent that the suit is based on a foreign judgment, there is no necessary averment which would confer jurisdiction upon the Court. The foreign judgment was passed in New York and the defendants did not reside and carry on business within jurisdiction at the relevant date. The only way that jurisdiction could possibly have been attracted was by an averment that there was an obligation under the judgment on the part of the defendants to pay the amount in Bombay or that the defendants had undertaken the obligation to pay the judgment amount in Bombay. There is no such averment in the plaint and in the absence of any such averment if the plaint had been based only on the foreign judgment then we mignt have agreed with the learned Judge and held that the Court had no jurisdiction. But it is unnecessary finally to decide this matter.;