G.K.Mitter, J. - (1.) This is an application on the part of Messrs. Lloyds Triestino Societa Per Azinni di Navigazione Sede in Triesta, defendant No. 1 herein for stay of a suit.
(2.) The suit was filed on June 8, 1957 by Messrs. Lakshminarayan Ramniwas, a firm carrying on business at 18, Netaji Subhas Road, Calcutta, against the said Steamship Co., described in the cause title of the plaint as carrying on business through their agents Messrs. Turner Morrison and Company (Private) Ltd., and the Commissioners for the Port of Calcutta. The plaintiff claims to be an endorsee of several bills of lading issued by the defendant No. 1 in March, 1956 for certain consignments of Mild steel round bars to be transported from Genoa (Italy) to Calcutta. The said consignments reached Calcutta in "S.S. Alga" on May 22, 1956 and it is alleged in the plaint that on delivery of the goods being taken through the plaintiff's clearing agents in June, 1956 it was found that 22 bundles of rods were short landed and a certificate to that effect was issued by the Commissioners for the Port of Calcutta. By reason of such short delivery the plaintiff claims compensation to the extent of Rs. 15,154/6 nP.
(3.) By its written statement filed on August 1, 1957 the defendant No. 1 relies on several clauses in the bills of lading which are in the Italian language with the English rendering thereof side by side. Clauses 3, 7, 21, 25, 31 and 32 referred to are as follows :-- "(3) The declaration as to weight, quantity, volume, contents and value of the goods are considered as given unilaterally by the Shipper and do not constitute any proof against the Captain or any acknowledgment by him, the obligations of the Master and of the Owners being limited to the re-delivery of the goods loaded in the same apparent condition of packing in which they were received, excepting cases of Force Majeure and the other causes provided for in this Bill of Lading. 7. Every package must at time of shipment, be in good condition without any trace of damage or pilferage; cases must be strengthened with iron bands or safety netting properly fixed; bagged cargo must be in double bag. Every package must be indelibly marked to show marks, countermarks, numbers and any other indication as well as Port of destination and port of transhipment, if any, to correspond with declarations made on the bills of lading and/or shipping order so as to avoid confusion and mistakes. For packages weighing more than 1000 kilos the Shippers must indicate on the package its weight and specify same oil the bill of lading. The Company and the Captain are not liable to the Shipper and the Receiver for any consequences deriving from the non-fulfilment of these regulations. 21. The goods shall be discharged on arrival of the vessel by the Port Stevedores for account and at the expense, risk and peril of the shipper or receiver; the unloading shall take place without the obligation of giving notice to the receiver even during the night and holiday. The company may demand that the discharge be effected by firms of stevedores of their choice. 25. Any claim for damage or shortage or other claim inherent to the present bill of lading must be submitted in order to be considered, in writing to the company before taking delivery of the goods and within 7 days from the arrival of the vessel at port of destination. 31. All requests for compensation in respect of damage, shortage, deterioration, loss of goods loaded shall be submitted for friendly settlement to the agencies of the shipping company at the place of discharge. Failing a friendly agreement, both the shipper and the receiver as well as any other party interested in the cargo, if intending to take legal steps against the company, for the abovementioned causes and in general for whatsoever other causes, may summon them before Judicial Authorities of Trieste or Genoa, hereby expressly renouncing the competence of any other Judicial Authorities. No exception must be made to this exclusive competence even if the company is sued party (defendant) by reason of connection or contingency of the law suits. 32. For anything which has not been provided for or foreseen in the present contract of carriage, the provisions of Italian Code of Navigation shall apply." The defendant denies the validity and the correct ness of the short landing certificates. It does not admit that the Mild steel bars were packed in the number of bundles mentioned in the Bills of Lad ing either on shipment or on discharge or on deli very. The defendant contends that Clause 7 of the bills of lading was not complied with and states that the entire quantity of goods shipped was duly landed at Calcutta. The defendant relies specially on Clauses 31 and 32 of the said bills of lading and on the strength thereof put forward the plea in the written statement that this Court has no jurisdiction to entertain this suit. In paragraph 19 of the written statement it is stated that by Italian Law the Courts at Trieste and at Genoa, or, in the alternative, the Court of Trieste or the Court of Genoa have jurisdiction to entertain and try the issues raised in this suit between the parties. The plaintiff was bound, according to Clause 31 of the Contract of Carriage, to bring this suit in the Court at Trieste or in the Court at Genoa and not in this Court, and in the premises this Court has no jurisdiction to entertain or try this suit.;