- (1.) THIS is a defendant's appeal from an order refusing stay of a suit pending institution of another in a foreign court and the obtaining of a decision in that Court.
(2.) THE appellant, a firm incorporated in Sweden, carrying on business under the name and style of Swedish East Asia Co. Ltd. , entered into a contract of affreightment with a Swedish citizen of the name of A. B. Cottram, where by it undertook to carry 1034 bundles of M. S. Flats shipped by A. B. Cottram on the defendant's vessel S. S. "kyoto", then at the Swedish port of Gothen-burgh. The cargo was to be carried to Calcutta and delivered to the order of the shipper subject to certain terms and conditions imposed in a bill of lading dated April 28, 1956, issued by the petitioner Company to Cottram, the shipper. The vessel reached the port of Calcutta on July 4, 1956 and the plaintiff Company obtained delivery of the consignment less 14 bundles which were said not to have been carried or delivered. There was some correspondence between the parties and a demand for payment of a sum of Rs. 12, 849/13/- having eventually been refused on account of the short-landed goods, a suit was instituted by the plaintiff Company on the Original Side of this Court, being Commercial Cause No. 1273 of 1957, on the 19th July 1957. The suit was brought with leave under Clause 12 of the Letters Patent and a decree for the sum stated was asked for. In the alternative, a prayer was made for enquiry as to the sum exactly due and a decree for such sum, as may be found ultimately due.
(3.) THE main averments in the plaint are that the plaintiff Company became the owner of the entire consignment being the endorsee or the holder for value of the bill of lading. The endorsement took place in Calcutta and despite efforts made to obtain delivery of the entire consignment, the plaintiff Company failed to do so. It is alleged that the defendant Company, in breach of its duty as common carriers, failed to carry the 14 bundles of M. S. Flats covered by the bill of lading safely and securely and neglected to deliver the said bundles and converted them to its own use. It is said that the defendant carries on, business in Calcutta within the Court's jurisdiction through its Agent United Liner Agencies of India (Private) Ltd. at Brabourne Road, and that the failure to deliver the 14 bundles involved a breach of the contract contained in the bill of lading and as such a part of the cause of action having arisen within jurisdiction, leave was asked for and obtained to institute the present proceeding.;