Mitter, J. - (1.) This is an appeal from an order for stay of a suit made on March 31st on the defendant's application. The order was subject to a condition that the defendant should pay into Court a sum of Rs. 3,20,000 being approximately half the amount claimed by the plaintiff within a month from the date of the order during which period the stay was to operate unconditionally. The order however was to expire after eight months from the date of its making and was to stand vacated if the above mentioned sum was not deposited in Court within the time limited.
(2.) The appellant claims that in the circumstances of the case there should have been an unconditional order for stay. The facts of the case leading to the making of the application may be summarised as follows: The plaintiff No. 1 (herein referred to as the plaintiff) agreed to sell to the defendant 10,000 long tons of iron ore (magnatite) ten per cent more or less depend ing on charter party conditions at buyer's option The price was to be 85 Shillings per dry long ton based on 65 per cent Fe. Content F. O. B Calcutta, trimmed, shipment to take place between February and June, 1957. Payment was to be made under an irrevocable, divisible and transferable letter of credit to be opened by the buyer in favour of the seller with a validity of 60 days following the date of the opening of the credit in English pounds with a first class bank in India. Such fetter of credit was to be opened at the latest by the end of December. 1956 covering 100 per cent of the goods the value being based on 65 per cent Fe content. Provisional payment under the letter of credit was to be made against specified documents, inter alia, a full set of bills of lading, provisional invoice, certificate on the preliminary sampling etc. Final settlement was to be made on the basis of dry weight determined on the discharge of goods at me percentage of Fe. content found out on the basis of exchange of analysis. The defendant (appellant before us) opened a letter of credit on or about February 12, 1957 for pounds 21,250 through United Commercial Bank Ltd., Calcutta, representing the value of 5000 tons of iron ore. The plaintiff effected shipment of 3510 long tons of iron ore per SS. Alriadah on or about March 4, 1957, and utilised the letter of credit to the extent of pounds 15,168-2s-2d for 95 per cent of the provisional payment due to it. The plaintiff's case is that thereafter by exchange of cables between the parties it was agreed that the balance of goods under the contract would be shipped per S. S. Edison Marine) chartered by the defendant by July 10, 1957 from the port of Calcutta and that the letter of credit would be amended accordingly. The validity of the letter of credit was according to the plaintiff extended up to July 31, 1957 and its amount was increased to pounds 40,375. S. S. Edison Mariner reached the port of Calcutta on June 13, 1957 and commenced loading on June 20. Between June 25, 1957 and July 16, 1957 the plaintiff loaded 7037 long tons of iron ore into the said steamship at the request of the master of the vessel. There was some delay in the loading of the ship on account of its having been moored midstream in the river Hooghly, oN July 17, 1957 the plaintiff informed the defendant of having shipped the goods and requested the latter to increase the amount of the letter of credit to cover the increased quantity shipped and to extend the shipping date to July 17, On July 20 the defendant sent a cable the purport whereof was that the bank had been instructed to increase the credit and the plaintiff's bankers should send documents by the first plane. The plaintiff gathered from the cable that the defendant was not objecting to the delay in shipment and that the latter had instructed its bunkers to augment the letter of credit. Later the plaintiff learned that the defendant had given instructions contrary to expectations to its own bankers and informed them not to make any payment if the documents bore any date after July 10, 1957. The steamship left the port of Calcutta on or about July 17, 1957 carrying the plaintiff's foods valued at approximately five lakhs of rupees. On coming to learn from its own bankers that the defendant was not minded to pay 05 per cent of the value of the goods in terms of the contract the plaintiff filed a suit in the Admiralty Jurisdiction ot this Court being Suit No. 2 of 1957. The defendants in this suit are the appellant in the present suit and the owners and master and the parties interested in S. S. Edison Mariner., One Madan Gopal Rungta, a director of the plaintiff, was impleaded as a co-plaintiff in that suit as also in the present suit, After filing the admiralty suit the plaintiff had the vessel arrested in the port of Madras on August 10, 1957. The appellant entered 'appearance in the suit and deposited with the Registrar of this Court Rs. 4,50,880 as security for obtaining the release of the vessel whereupon an order was made that the said steamship be released from arrest and that the Registrar of this Court do hold the said sum pending the final disposal of the suit. 2a. That suit eventually came to be tried on evidence by me. A number of issues were framed. These were directed inter alia, to find out whether the plaintiff had shipped 7087 long tons of iron ore in terms of the contract or at the request of the master of the vessel, whether the plaintiff had incurred additional loading charges by reason of the ship being moored midstream, whether the defendant had agreed to the extension of the letter of credit, whether the Court had jurisdiction to entertain the suit & whether the plaintiff was entitled to the price of the goods as pleaded in the plaint. It was held by me that (a) as the plaintiff did not ship the goods within the contract period it could not claim the price thereof in terms of the contract, (b) the plaintiff was not entitled to any additional charges for loading the goods midstream and (c) the Admiralty Jurisdiction of this Court was not exercisable in the facts and circumstances of this case. Although the suit was dismissed stricture was made on the conduct of the defendant which was described as an attempt to obtain delivery of the goods and take them out of India by a trick. The dismissal of the said suit took place on April 2, 1961 and on April 18, 1961 the plaintiff instituted the present suit. The plaintiff filed an appeal from the said decree which is still pending.
(3.) Paragraph 16 of the plaint in suit No. 2 of 1957 shows that the plaintiff's total claim was Rs. 4,50,880.80 made up of the sum of Rupees 4,05,880.80 as price of goods shipped and Rs. 45,000 as lorry and boat hire and handling charges (being the additional expenses for loading the goods midstream). Paragraph 14 of the present plaint shows that the total claim is for Rs. 8,65,185.14. This includes (a) 95 per cent price of 7037 tons of iron ore i.e. Rupees 4,05,880.12.9, (b) extra loading charges on the same amounting to Rs. 45,000 (c) balance of 5 per cent price of 7037 tons Rs. 21,210, (d) interest on these three amounts from July 16, 1957 till date of the institution of the suit totalling Rs. 1,47,372. Besides these the claim includes the balance of five per cent price of 3510 tons of iron ore shipped per S. S. Alriadah amounting to Rs 10,607. despatch money earned in connection with the said shipment Rupees 9046 and interest on these two amounts from March 4, 1957 to date of the institution of the suit Rs. 6402 totalling Rs. 26,056.;