A.N. Sen, J. - (1.) This is an application on behalf of the Defendants for stay of this suit.
(2.) There are two Defendants in this suit. The first Defendant General Navigation Limited is a foreign company incorporated in Monrovia in Liberia. The second Defendant F.W. Heilgers and Co. (Private) Limited is an Indian company and the second Defendant is the Calcutta agent of the foreign company, the first Defendant herein. The foreign company acts as a common carrier of goods by sea for reward and is the owner of a vessel called 'African Sky'. Under six bills of lading, all dated June 4, 1962, consignments of unglazed white newsprint reels with distinctive marks were carried by the said ship 'African Sky' from Uglfgorsk, Sakhalir, U.S.S.R., for delivery to State Trading Corporation of India Limited, the Plaintiff herein, at the port of Calcutta. Each of the six bills of lading on the basis of which the consignments had been shipped and carried, contained the following clauses: Clause 26. All claims and disputes arising under and in connection with this bill of lading shall be judged in U.S.S.R. Clause 27. All questions and disputes not mentioned in this bill of lading shall be determined according to the Merchant Shipping Code of U.S.S.R. It is the case of the Plaintiff that the said ship had failed and neglected to deliver to the Plaintiff the entire consignments covered by the said bills of lading and there had been short landing or short delivery and the same was due to want of care and caution and/or negligence and/or misconduct on the part of the Defendants.
(3.) On June 29, 1962, the Plaintiff instituted this suit in this Court for recovery of Rs. 61,180 -67 paise in enforcement of its claim for the alleged short delivery of the Plaintiff's goods carried under the aforesaid six bills of lading. After service of the writ of summons, both the Defendants entered appearance through M/s Sandersons and Morgans who are acting as the Solicitors for the Defendants in this action. On November 19, 1962, the Defendants made an application in this suit for extension of time for the filing of the written statement on behalf of the Defendants. By an order made by this Court on December 13, 1962, on the said application time for filing written statement by the Defendants was extended till December 17, 1962. The Defendants have filed a joint written statement and the written statement on behalf of the Defendants was filed on December 17, 1962. In the written statement filed on behalf of the Defendants the Defendants have contended that by reason of Clause 26 contained in each of the said bills of lading which provided that all claims and disputes arising under and in connection with this bill of lading shall be judged in the U.S.S.R., this Court should not entertain this suit and in view of the said clause in the bills of lading, this suit should be stayed and the Plaintiff relegated to its remedies, if any, in the Courts in U.S.S.R. The Defendants in the written statement have also relied on Clause 27 in each of the said bills of lading and have contended that in case this suit is tried by this Court, the Plaintiff should pay to the Defendants all costs which will be incurred in proving the relevant provisions of the said Merchant Shipping Code.;