- (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 defendant 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: "Article 9 Law Applicable This Agreement has been entered into in the United States and shall in all respects be construed and interpreted in accordance with laws of the state of New York in the United States. The parties hereto submit to the exclusive jurisdiction of the federal and state courts located in the City of new York with respect to any disputes arising out of or Subcontract For Services Kolkata East West Metro Project Sustainable EMS LLC related this Subcontract."
(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. Mr. Ranjan Bachawat for the first defendant submits that both the parties are American. It is submitted that the sub contract dated 29th July, 2009 was executed in the United States, bills were raised by the plaintiff in New York in the United States, referring to the invoice/bill dated 1st July, 2010 at page 82 of the application. Payments were also made in New York in the United States. More so, after institution of this suit the first defendant started proceedings against the plaintiff in U.S.A. in which the plaintiff has participated. The cause of action is similar to this case. These facts are uncontroverted.;