Authored By : Harold Derbyshire, John Lort Williams

Harold Derbyshire, C.J.

1. This is an appeal from a decision of Sen J., given on 6thApril 1939 whereby he refused to revoke the leave which had been granted forthe institution of this suit under Clause 12, Letters Patent, and furtherrefused to stay the suit. The suit was brought by the plaintiff, Ali MahomedEbrahim Shakoor against the six defendants: (1) Adam Hajee Peermahomed Essack,himself, (2) Adam Hajee Peermahomed Essack, as Manager of Peer Mahomedi Fund,(3) Ahmed Hajee Peermahomed, (4) Abdul Karim Adam, (5) Talyub Ali Mohamed and(6) Hajee Adam Abdul Shakoor. The application for revocation of the leave andfor stay of the suit was made by Hajee Adam Abdul Shakoor, defendant 6.Previously there had been an application for stay of the proceedings made byAdam Hajee Peermahomed Essack, defendant 1, but by a consent order made in thatapplication (to which the present defendant was not a party) the suit wasallowed to proceed on the plaintiff giving security for costs to the extent ofRs. 5000. It was agreed that the contention of the plaintiff that he was aresident of British India was still open to him, and also that it was stillopen to the defendants to contend that the Court had no jurisdiction to try thesuit. The present applicant-defendant 6-is described as the manager ofdefendant 1. The suit itself is for a declaration that the partnership allegedto exist between the plaintiff and the defendants stands dissolved on and from3rd February 1936, alternatively, for a decree dissolving the partnership.There are further claims for declarations as to the validity and operation ,ofa document dated 27th January 1936.

2. The parties, it is agreed, are all natives of the Stateof Bantva. The plaintiff alleges that a partnership existed for many yearsamongst the parties and that it was renewed from time to time. The amount ofthe partnership assets is very large amounting to many lacs of rupees. Theplaintiff alleges that the last agreement for partnership was entered intobetween the parties on 15th December 1934, the term of the partnershipbeginning on 12th July 1935, and lasting for some 11 to 15 months from thatdate. The plaintiff alleges that after the last term of the partnership expiredthe accounts were not adjusted, that all the account books were in thepossession of the defendants other than defendant 5, and that defendant 1refused to allow inspection of the books and accounts, or to make up or adjustthe accounts. The plaintiff also alleges that on or about 3rd February 1936,defendant 1 by false and fraudulent representation and undue influence andcoercion caused the plaintiff to sign a document dated 27th January 1936 andhave the same registered. The effect of that document was to settle the amountof money the plaintiff was entitled to under the agreement. It is in respect ofthe operation of that agreement, and the settlement of the dispute under itmentioned, that these proceedings have been brought.

3. The plaintiff alleges that the partnership business wascarried on in Calcutta and other places in India and that the head office ofthe partnership firm was situate in Calcutta. The plaintiff also alleges thatall the parties at all material times have been carrying on business inCalcutta, and that the cause of action arose partly in Calcutta and partlyelsewhere. Leave was granted by Panckridge J., under Clause 12 of the LettersPatent to commence this suit in this Court. The plaint was filed on 25th June 1938.The written statement of defendant 1 was filed on 10th August 1938, and thewritten statements of the other defendants including defendant 6, on 7thNovember 1938.

4. Defendant 6 - the present appellant - contends in para.13 of his written statement that by the agreement of 15th December, 1934 it wasexpressly provided that the parties thereto would have no right to instituteany legal proceedings in respect of the said business at any other place thanBantva or Rajkot, and that the plaintiff in violation of that agreement hasinstituted this suit in the Calcutta High Court. He also contends in para. 14of his written statement that this Court has no jurisdiction to entertain ortry this suit. In support of the application to revoke leave and the applicationfor stay defendant 6 filed a translation of the agreement of 15th December1934. The translation is stated to have been made by an authorised translatorin the Kathiawar Agency. Paragraph 9 of that agreement sets out certain termsand one of them is stated to amount to an agreement to have any disputesarising out of the business settled in the Court at Bantva or at Rajkot andnowhere else. The plaintiff contends that that translation is not correct andis not admissible by reason of the rules of this Court. The rule upon which herelies is Rule 25, chap. IV of Rules of the Original Side of this Court, whichprovides:

Translation of a document in a language which thetranslators do not know shall be made by special translators, if any, appointedby a Judge. Applications for such translations shall be made to the Registrarwho shall forward the same to the special translators. In the absence ofspecial translators, the document shall be translated by a person who knowsboth such language and English, and the document shall not be accepted inevidence, unless accompanied by the translation and an affidavit of suchperson, stating that he knows such language and English, and that he has trulyand faithfully translated the document ....

5. The document is in Gujerati and this Court has not on itsstaff any translators competent to translate Gujerati into English. It will benoticed that the translation offered by defendant 6 is not a translation madeby any special translator appointed by a Judge. It is by a translator whosename cannot be read, and the translator has made-no affidavit stating that heknows such language and English and that he has truly and faithfully translatedthe document. The plaintiff in opposition has put forward a translation of the samedocument which is made by a gentleman resident in Calcutta and supported by anaffidavit of that gentleman that he knows such language and English and that hehas truly and faithfully translated such document. The relevant passage inpara. 8 of the plaintiffs translation reads as follows:

That the year of this business is to be counted for elevenand fifteen months from 12th July 1934 as you or your heirs desire and theannual account of its profit and loss is to be written in the month of Bhadarvaor Asu of Sambat 1991 or before it and we are to receive our pay according asyou or your heirs write profit or loss per share and get the same written. Theamount due to us, after the adjustment of the accounts, has been decided to bepaid to us only at Bantwa on the second of the bright half of Magsar of Samvat1992, or, if you so desire, before this, in cash or notes or demand draft onBombay.

6. Then follows the part which is especially relevant:

And if we have any complaint about this business it shall bedone at Bantwa or Rajkot. We have no right of complaint at any other placeexcept at Bantwa. We make this clear condition because all the accounts arekept at, Bantwa.

7. The learned Judge was of the opinion that the plaintiffstranslation verified by affidavit according to the rules was the only one whichhe could have recourse to in order to decide whether the parties have agreed tolitigate the difference arising out of this business at Bantva or Rajkot, andnowhere else, and he was of the opinion, after perusing the plaintiffstranslation, that he was unable to say from that document that the plaintiffhad divested himself of his right to bring this suit in this Court. If thedefendants translation is accepted it is much more difficult for a Judge tosay that the plaintiff had not divested himself of his right to bring this suitin this Court. We thought it desirable to pursue the correctness of thetranslation further. Although there is no regular translator of Gujerati on thestaff of this Court, there is in Calcutta close-by a business gentleman who onoccasions does translations from Gujerati into English for the Court. Werequested the Registrar to send for that gentleman and he came and we asked himto translate the paragraph in question from Gujerati into English. He did soand we have a copy of his translation before us. I do not think it necessary oreven desirable to say what the words of that translation are in view of thecourse this case may take afterwards, but I do want to say that the translationwhich we obtained this morning does not agree either with the translation putforward by the plaintiff or the translation put forward by defendant 6.

8. The application to revoke the leave given under Clause 12of the Letters Patent is put forward on two grounds. The first is that all theparties are natives of Bantva and speak Gujerati and that as under theagreement the books had to be kept at Bantva, Calcutta is not a suitable forumin which to litigate the disputes between the parties. The second ground isthat the parties have by the clause in question of the agreement agreed tolitigate their differences at Bantva. The stay of proceedings is asked forsolely on the ground that the parties under the clause in question have agreedto litigate at Bantva or Rajkot and not elsewhere. As regards the balance ofconvenience the plaintiff says that the firm in question was registered as apartnership in Calcutta by the partners, that the head office is in Calcuttaand that the books of partnership are kept in Calcutta. Whether the plaintiffis right about this or defendant 6 must be a question of evidence. As regardsthe second allegation, namely that the parties have excluded the jurisdictionof the Calcutta Court in favour of the Court at Bantva, that involves firstly aquestion of translation and secondly, when the translation has been obtained,the question of the construction of the document. Therefore, before the Courtcan decide whether the leave ought to be revoked on either grounds of convenienceor of submission to another tribunal, evidence must be given, translations mustbe made and arguments as to the construction of the document must take place.And again before the Court can grant a stay there must be same translation madeand arguments as to construction heard. I am satisfied that both thetranslations of the documents and the true construction of para. 8 of it arematters of some difficulty. A position of this sort was discussed in Secretaryof State v. Golabrai Paliram : AIR1932Cal146 where a questionarose whether an application to revoke leave under Clause 12 of the LettersPatent should be granted. The facts are not very material, but at page 153 SirGeorge Rankin used these words:

I do really protest against questions of difficulty andimportance being dealt with by an application to revoke the leave under Clause12 of the Letters Patent and to take the plaint off the file. Normally it iswell settled that the proper way to plead to the jurisdiction of the Court isto take the plea in the written statement and as a substantive part of thedefence. Except in the clearest cases that should be the course.

9. I respectfully agree with the words just quoted and theyseem to me to dispose of the defendants application to revoke the leave whichhas been granted under the Letters Patent. There were questions of importanceand difficulty to be dealt with here before the learned Judge could revoke theleave which has been granted. As regards the application to stay the proceedingson the ground that the parties have agreed to litigate in another forum itseems to me that the position is the same. A case was before the Court ofappeal in England in 1935, St. Pierre v. South American Stores (Gath andChaves) Ltd. (1936) 1 K B 382. The headnote reads as follows:

The appellants (defendants in the action), two Englishcompanies, having their head offices in London but carrying on businessexclusively in South America, were jointly liable to the respondents (theplaintiffs in the action) for rent in respect of premises occupied by one ofthem in Chile under a lease drawn in the Spanish language according to Chileanlaw and executed by all parties in Paris by which also all parties electeddomicile in Chile. The rent stipulated by the lease was 93,500 pesos of 183,057millionths of a gramme of fine gold monthly which was to be paid at the optionof the lessors either in Chile or remitted to Europe according to theirinstructions.

Disputes having arisen between the parties in view ofChilean legislation which the appellants contended prevented them remitting therent from Chile without official authorization by the Chilean. Government,which authorization had been refused, the appellants commenced proceedings in.Chile which were still pending, claiming a declaration that the rent couldlawfully be paid in notes of the Banco Central de Chile. The respondents havingbrought the present action in England claiming payment of the rent in sterlingequivalent to 183,057 millionths of a gramme of fine gold the appellantsapplied under Section 41, Judicature (Consolidation) Act, 1925, to have itstayed as being vexatious and oppressive. Porter J., refused a stay.

10. On appeal the decision of Porter J., was affirmed and inhis judgment at page 393 Greer L. J. used these words:

The fourth ground on which it is alleged that the actionshould be stayed is that it is contended that the effect of the agreement is togive exclusive jurisdiction to the Courts in Chile. This is a matter thatcannot be determined upon affidavits. It might of course be Bet down as apreliminary question of law, but it seems to me that it will be more convenientthat it be treated as one of the matters which will fall to be determined whenthe action comes on for trial.

11. We are asked in the present proceedings to use thepowers given to us by Section 151, Civil P. C., to stay this suit on the groundthat it ought to have been brought elsewhere. For the reasons I have set outabove, it is clear that questions of difficulty both as regards translation ofthe document from Gujerati into English and construction of the same afterwardshave to be dealt with by the Court before it can be decided whether the clausein question does contain an agreement between the parties barring thejurisdiction of this Court. It seems to me that the reasons given by Greer L.J. in St. Pierre v. South American Stores (Gath and Chaves) Ltd. (1936) 1 K B382 apply here. In order that the position shall be clear when the suit goes toCourt of first instance I wish to cite the words of Sir George Rankin inSecretary of State v. Golabrai Paliram (32) 19 at page 153:

The matter must be gone over again at the proper time andupon proper materials. The learned Judge, who will deal with these points, willnot be bound by opinion expressed in the judgment under appeal. I do notpropose to try to solve the difficulties in advance. The matter will beentirely open to him.

12. For these reasons I am of the opinion that the learnedJudge in refusing to revoke the leave which has been granted, and in refusingto stay this suit, was right and I am further of the opinion that this appealmust be dismissed with costs.

John Lort Williams, J.

13. I agree.

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Adam Abdul Shakoorvs. Ali Mahomed Ebrahim Shakoor and Ors.(04.01.1940 - CALHC)