A.N.Sen, J. - (1.) This appeal arises out an order passed by Ajay K. Basu, J. on the 22nd November, 1976 dismissing the application of the appellants who happened to be defendants Nos. 1 and 2 in the suit for stay of the suit filed by the plaintiff in this Court, for an injunction restraining the plaintiff from proceeding with the suit, for revoking leave under Clause 12 of the Letters Patent and for other reliefs.
(2.) The plaintiff instituted this suit in this Court on the 26th April, 1976. In the suit, the prayer of the plaintiff is for a decree for Rs. 7,58,322.48 p and in the alternative (i) a decree against the defendants Nos. 1 and 2 or alternatively against the defendant No. 3 for Rupees 1,77,106.44p. with interest thereon @ 12% per annum or at such other rate as may be prescribed from June 28, 1973 till the institution of the suit, (ii) an enquiry into the damages as pleaded in para. 11 of the plaint and decree for such sum as may be found due to the plaintiff, interest and other reliefs.
(3.) The plaintiff also prayed for leave under Clause 12 of the Letters Patent and under Order II, Rule 2 of the Civil P. C. The plaintiff entered into a contract with the defendant No. 2 who is the sole proprietor of the defendant No. 1. The said contract was in writing and under the said contract the plaintiff agreed to buy and the defendants were to sell 10,000 Kgs. of Chloramphenicol Powder I. P. to be supplied during the months of April, May, June, July and August, 1973 @ 2,000 Kgs. each month at the agreed price of Rs. 340/- per Kg. F. O. B. Bombay. Under the terms of the said agreement between the parties the plaintiff was to open in favour of the defendant No. 1 a confirmed irrevocable revolving Letter of Credit for Rs. 34,00,000/- equivalent to the value of 10,000 Kgs. of the said merchandise. The said contract contains a clause to the following effect: "This contract is subject to Bombay jurisdiction.";