JUDGMENT Gentle, J. - By contract in writing dated 26th November, 1941, the Defendant Company agreed to sell and the Plaintiff firm to buy 35 bales of bleached shirtings. The suit in this Court was instituted on 11th May, 1943, by which the Plaintiff claims Rs. 27,300 as damages for non-delivery. In para. 3 of their written statement the Defendants plead that this Court has no jurisdiction to entertain this suit. In support of the plea the Defendants rely upon cl. 5 of the contract, which provides that:-- Any dispute arising under this contract can only be decided in the Court of Ahmedabad. On 16th December, 1943, the Defendants, as Plaintiffs, instituted Civil Suit No. 1436 of 1943 in the Court of the first class Subordinate Judge, Ahmedabad, claiming Rs. 1,669-15-0 as damages and interest from the Plaintiff, as Defendant, on the re-sale of the goods which are the subject-matter of the contract. 2. On 11th March, 1944, by notice of motion, the Plaintiff seeks an injunction restraining the Defendants from prosecuting the Ahmedabad suit until the final determination of the suit in this Court. On 13th March, an interim injunction was granted until the disposal of the notice of motion. 3. By consent of the parties the suit and the notice of motion have been posted for hearing together for a preliminary finding to be pronounced in this suit upon the question whether the Court has jurisdiction to entertain it and for the disposal of the notice of motion. 4. During his argument Learned Counsel for the Defendants applied for leave to amend the written statement by adding to, or substituting in place of, the plea in para. 2, that the suit in this Court is not maintainable. Learned Counsel for the Plaintiff objected to an amendment at that stage. In light of this objection and since the suit and notice of motion were posted together solely for the purpose of the jurisdiction of the Court being considered and as the amendment was sought at a late stage, I refused the application. 5. The superior Courts in India are the creation of the Indian High Courts Act, 1861, which enabled the Queen, by Letters Patent under the Great Seal, to erect and establish and confer jurisdiction upon High Courts of Judicature for the Bengal Division of the Presidency of Fort William and for the Presidencies of Madras and Bombay. 5. The superior Courts in India are the creation of the Indian High Courts Act, 1861, which enabled the Queen, by Letters Patent under the Great Seal, to erect and establish and confer jurisdiction upon High Courts of Judicature for the Bengal Division of the Presidency of Fort William and for the Presidencies of Madras and Bombay. In pursuance of the Act of 1861, Queen Victoria, by Letters Patent dated 14th May, 1862, established and conferred jurisdiction upon the High Court of judicature at Fort William in Bengal and by Letters Patent dated 28th December, 1865, the previous Letters Patent were revoked and it was granted, directed and ordained that, not withstanding the revocation, this High Court should be and continue as from the time of the original erection and establishment. Cl. 12 of the Letters Patent, 1865, conferred Original Jurisdiction upon this Court. It provides that .........the said High Court of Judicature at Fort William in Bengal......shall be empowered to receive, try and determine suits of every description......If the cause of action shall have arisen either wholly or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the Ordinary Original Jurisdiction of the said High Court....... 6. Sec. 106 of the Government of India Act, 1915, provides that the several High Courts in India have such jurisdiction, powers and authority as were vested in them by Letters Patent and all such jurisdiction, powers and authority as were vested in those Courts at the commencement of the Act. By sec. 223 of the Government of India Act, 1935, subject to the provisions of any Act of the appropriate legislature conferred on that legislature by the Act of 1935, the jurisdiction of any existing High Court shall be the same as immediately before the commencement of Part III of the Act of 1935. 7. The Original Jurisdiction conferred upon this Court by the Sovereign in the Letters Patent, 1865, was confirmed or declared by the Government of India Acts, 1915 and 1935 and the Court exercises this inherent jurisdiction by virtue of the above authority. 8. Leave was granted under cl. 12 of the Letters Patent prior to the suit being filed for its institution in this Court. It was conceded by Learned Counsel for the Defendant that, apart from the provisions and effect of cl. 8. Leave was granted under cl. 12 of the Letters Patent prior to the suit being filed for its institution in this Court. It was conceded by Learned Counsel for the Defendant that, apart from the provisions and effect of cl. 5 of the contract between the parties, this Court has jurisdiction to entertain the suit. He also conceded that parties to an agreement cannot thereby confer upon this Court jurisdiction which it does not possess but he contended that its jurisdiction can be ousted by such an agreement. It is common ground that, ordinarily, both this and the Ahmedabad Court have jurisdiction to decide disputes arising out of the contract in suit. 9. Mr. Bachawat, on behalf of the Plaintiff, argued that cl. 5 of the contract is void as it purports to restrict the parties from enforcing their rights in any Court other than the Court of Ahmedabad and, as such, it offends against, the provisions of sec. 28 of the Indian Contract Act. This section provides that Every agreement by which any party there to is restricted absolutely from enforcing his rights under or in respect of any contract by the usual legal proceedings in the ordinary tribunals...... is void to that extent. 10. The contract in suit does not restrict the parties absolutely from enforcing their rights in a Court and it does not purport to prevent them from resorting to all Courts of competent jurisdiction which is necessary before there is a contravention of sec. 28, when two Courts have jurisdiction to try a case. There is nothing contrary to law in an agreement that the disputes between the parties shall be tried by one Court rather than by the other, and such agreement does not offend the section. In my opinion cl. 5 of the contract is not void. 11. In support of his contention, that this Court can be ousted of its jurisdiction by an agreement, Learned Counsel for the Defendants relied upon Achravlal Kessavlal Mehta v. Vijaya & Co., A. I. R. [1925] Mad. 1145. In my opinion cl. 5 of the contract is not void. 11. In support of his contention, that this Court can be ousted of its jurisdiction by an agreement, Learned Counsel for the Defendants relied upon Achravlal Kessavlal Mehta v. Vijaya & Co., A. I. R. [1925] Mad. 1145. In that case the agreement, in respect of which a suit was instituted in the Court of Small Causes, Madras, contained a term that "In all legal disputes arising out of the contract, Ahmedabad will be understood as the place where the cause of action arose." The learned trial Judge held that: it was a valid agreement to which effect must be given; the suit should have been brought in the Ahmedabad Court; and he dismissed the suit. Later, a Full Bench of the learned Judges of the Small Cause Court, by a majority, held the agreement was void because it ousted the jurisdiction of the Madras Court. The matter went in revision to the High Court. Madhavan Nair, J., held: the agreement was valid and did not contravene the provision of sec. 28 of the Contract Act; where there are two Courts in which, normally, each would have jurisdiction to try this suit, there was no reason why the parties should not be allowed to agree that a suit should be brought in one of those Courts and not in the other; and it was therefore not open to the Madras Court to entertain the suit. 12. The decision in Madras was followed in Khandash Lakshmirivilas Mills Co. v. Vinayak Atmaram Karpurkar A. I. R. [1935] Bom. 198 and in AIR 1937 334 (Nagpur) . In the latter authority Pollock, J., held that the Court, in which the suit had been instituted and which was not the chosen Court, had no jurisdiction to try the case. 13. In Kidri Prasad v. K.R. Khoosala A. I. R. [1923] Lah. 425 (2), Shadi Lal, C.J. and Zafar Ali, J., held that litigants cannot, by agreement inter se, divest a Court of its inherent jurisdiction over the subject-matter of a suit any more than they can confer upon it by consent jurisdiction and that the jurisdiction of the Court cannot be ousted by agreement between the parties. In Gopal Das Agarwala v. Hari Kishan Das 34 All. In Gopal Das Agarwala v. Hari Kishan Das 34 All. L. J. 704 (1936), Bajpai, J., at p. 206 said he could not possibly hold that the Allahabad Court had no jurisdiction when, apart from agreement that all disputes should be tried by another Court, it had jurisdiction to entertain the suit. 14. It is now convenient to refer to some decision of the Courts in England but, before doing so, the provisions of sec. 11 of the Common Law Procedure Act, 1854 (now repealed) and of sec. 34 of the Indian Arbitration Act require to be stated. Sec. 11 of the Common Law Procedure Act provides that: Whenever the parties to any deed or instrument in writing............ shall agree that any then existing or future differences between them......... shall be referred to arbitration, and any one...... of the parties so agreeing ...... shall nevertheless commence any action at law or suit in equity against the other part......in respect of the matters so agreed to be referred ......it shall be lawful for the Court in which action or suit is brought...... on application by the defendant.....after appearance and before plea or answer upon being satisfied that no sufficient reason exists why such matters cannot be or ought cot to be referred to arbitration ...... to make a Rule or Order staying all proceedings in such action or suit....... 15. Sec. 34 of the Indian Arbitration Act, 1940, provides that: Where one party to an arbitration agreement, commences any legal proceedings against any other party to the agreement...... in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other step in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement ......... such authority may make an order staying the proceedings. 16. I have set out the material portions of these two statutory provisions for comparison. Whilst the wording in each is different, the effect is the same. 17. such authority may make an order staying the proceedings. 16. I have set out the material portions of these two statutory provisions for comparison. Whilst the wording in each is different, the effect is the same. 17. The provisions in the Common Law Procedure Act were considered in Law v. Garrett L. R. 8 C. D. 26 (1877), where a number of British subjects, two of whom resided in England, entered into a deed or agreement of partnership for a business in Russia. Article 17 provided for all disputes between the parties, no matter how or where they might arise, to be referred to the St. Petersburg Commercial Court or to any Court which might have taken its place. One of the parties commenced an action in England claiming dissolution of the partnership, the appointment of a receiver and other relief. The Defendants applied for a stay of the proceedings, relying upon Article 17 of the Contract. The Court of Appeal, affirming Bacon, V. C. and being of opinion that sec. 11 of the Common Law Procedure Act applied, stayed the proceedings in the English Court. 18. Sec. 11 of the Common Law Procedure Act was repealed by the English Arbitration Act, 1889. Sec.4 of the later Act, although somewhat differently worded, re-enacted the principles contained in sec, 11 of the earlier Act. The wording of sec. 4, above is substantially the same as in sec. 19 of the Indian Arbitration Act, 1899, which was repealed by the Indian Arbitration Act, 1940, and is similar to sec. 34 of the last-mentioned statute. Sec. 34, however, commences "Where one party to an arbitration agreement....." whereas sec. 4 of the English Act has "If any party to a submission . . . Sec. 27 of the English Act defines submission as .... a written agreement to submit present or future deferences to arbitration....." The meaning and effect of the above sections in the Common Law Procedure Act and in the Indian and English Arbitration Acts are the same. 19. After the passing of the English Arbitration Act, 1889, the effect of a term in an agreement, by which the parties chose a foreign Court to decide their disputes, arose for consideration in other cases in the English Courts. 20. 19. After the passing of the English Arbitration Act, 1889, the effect of a term in an agreement, by which the parties chose a foreign Court to decide their disputes, arose for consideration in other cases in the English Courts. 20. In Austrian Lloyd Steamship Company v. Gresham Life Assurance Society, Ltd. L. R. [1903] 7 K. B. 249, one Rabl, a native of Trieste, effected a policy of life insurance with the Defendants who had a branch in Budapest, Hungary. The policy was in the French language. Condition 24 provided that, for all disputes arising out of the contract of insurance, the parties interested expressly agreed to submit to the jurisdiction of the Courts of Budapest. The policy was assigned to the Plaintiffs who, after the death of the assured, sued on the policy in England as assignees. The Court of Appeal, holding that the condition was a submission within the Arbitration Act, stayed the proceedings on the ground that the parties had mutually agreed that all disputes under the policy should be determined by the Budapest Court. 21. In Kirchner & Co. v. Gru Ban L. R. [1909] 1 Ch. 413 the Defendant was a German subject who agreed with the Plaintiffs, a Leipzig firm, to act as their representative in the United Kingdom. Cl. 12 a of the agreement provided that the parties submit themeslves in all cases of disputes to the exclusive jurisdiction of the Royal Landgericht (Royal Provincial Court) or of the Amtsgericht (country Court at Leipzig and the German law shall exclusively hold good......... 22. The Plaintiffs issued a writ in England, for an injunction and for other relief, against the Defendant in respect of alleged breaches of the agreement. The Defendant applied to the Court to stay the proceedings by reason of cl. 12a of the agreement. Eve, J., refused to grant the injunction and he stayed the action. At p. 418 of his judgment he observed I am quite satisfied that there is nothing in the suggestion that the decision of those Courts (of Budapest) may not he Goal. It may be an appeal lies from those Courts to other Courts; but in my mind, assuming that to be so, that does not in the least operate to defeat the agreement into which the parties entered that the differences between them should be referred to those Courts. 23. It may be an appeal lies from those Courts to other Courts; but in my mind, assuming that to be so, that does not in the least operate to defeat the agreement into which the parties entered that the differences between them should be referred to those Courts. 23. The substance of the decisions, to which I have made reference, is the following: when both the Courts in England and in a foreign country have jurisdiction to entertain disputes arising out of a contract between the parties and, by a term in the contract, they have agreed that such disputes shall be decided by the foreign Court, such term is a submission to arbitration and an action commenced in the English Courts will be stayed in the absence of cause shown for the continuance even when the decision of the chosen Court may not be final but subject to appeal. 24. Haji Abdulla v. Stamp 26 Bom. L. R. 224 (1924) was decided under sec. 19 of the Indian Arbitration Act, 1899, which contains similar provisions to those in sec. 34 of the Act of 1940. In that case a policy of marine insurance issued by Lloyds underwriters contained a condition that all disputes must be referred to England for settlement and no legal proceedings should be taken to enforce any claim except to England. The assured instituted a suit in the High Court at Bombay against the underwriters for the value of the insured goods. Sir Norman MacLeod, C. J. and Shah, J., affirming Kemp, J. and following the decision in Austrian Lloyd Steamship Company v. Gresham Life Assurance Society L. R. [1903] 7 K. B. 249, stayed the suit holding that the condition in the policy was a submission to arbitration within the Indian Arbitration Act, 1899. 25. The decision of the Bombay High Court, as well as the three decisions of the Courts in England, related to contracts in which the parties had agreed upon foreign Courts to decide disputes arising out of the agreements. 26. There can be no difference in principle whether, if two Courts have jurisdiction, the chosen Court is a foreign Court or both are Courts of the same country. 27. In Law v. Garrett L. R. 8 C. D. 26 (1877), Baggalay, L. J., at p. 37, referred to Cooke v. Cooke L. R. 4 Eq. 26. There can be no difference in principle whether, if two Courts have jurisdiction, the chosen Court is a foreign Court or both are Courts of the same country. 27. In Law v. Garrett L. R. 8 C. D. 26 (1877), Baggalay, L. J., at p. 37, referred to Cooke v. Cooke L. R. 4 Eq. 77 (1867) and pointed out that, in that case, Wood, V. C., decided that the jurisdiction of the Superior Courts was not ousted by the provisions of the Common Law Procedure Act. In Scott v. Avery 5 House of Lords Cases 811 (1155), the Lord Chancellor, at p. 846, after referring to Thompson v. Charnock 8 TR 139 (1799) in which an arbitration clause in a charter-party was pleaded in bar to an action on the contract, observed "That was held to be a bad plea on the ground that a right of action had accrued and that the fact that the parties had agreed that the matter should be settled by arbitration, did not oust the jurisdiction of the Courts," and, at p. 847, the Lord Chancellor added There is no doubt that where a right of action has accrued, parties cannot by contract say that there shall not be jurisdiction to enforce damages in respect of that right of action. Now this doctrine depends upon the general policy of the law, that parties cannot enter into a contract which gives rise to a right of action for breach of it and then withdraw such a case from the jurisdiction of the ordinary tribunal. 28. this Court has undoubted jurisdiction to entertain the suit arising out of disputes between the parties. This jurisdiction is not and cannot he ousted by a contract purporting to deprive the Court of its jurisdiction, nor by a term, as in the suit contract, by which the parties agree that their disputes shall be decided by one of two Courts, each of which has jurisdiction nor is there any ouster by reason of the provisions in sec. 34 of the Arbitration Act. 29. With respect I agree with the three decisions of the Courts in England and the decision of the High Court at Bombay. 34 of the Arbitration Act. 29. With respect I agree with the three decisions of the Courts in England and the decision of the High Court at Bombay. There is nothing to prevent the parties to a contract from agreeing upon the tribunal, whether a chosen Court having jurisdiction to entertain a suit between those parties or a lay arbitrator, to try the disputes arising out of the contract. 30. In my opinion the effect of cl. 5 of the agreement in suit is a submission to arbitration under the Arbitration Act, the chosen tribunal being the Ahmedabad Court. In an agreement of this kind, when one of two Courts, each having jurisdiction, is the chosen tribunal, the jurisdiction of the other Court is not ousted but it is subject to the exercise of the powers in sec. 34 of the Arbitration Act exactly in the same way as when a lay arbitrator is the chosen tribunal. In either event whether the chosen tribunal is a Court or a lay arbitrator, any Court which had jurisdiction and in which a party to the agreement institutes proceedings upon matters which are the subject of the reference, the Court will not dismiss the suit but in exercise of the provisions in sec. 34, will refuse or giant a stay of those proceedings according to the circumstances. It is not bound to grant a stay, it has a discretion to do so which discretion must be exercised judicially. 31. In the present suit there is no application by the Defendants to stay the proceedings. It is now too late for this, since such application must be made before a Defendant files a written statement and before taking any steps other than entering appearance. The Defendants have filed a written statement and have also filed an affidavit of documents, which is a step in the suit. They cannot now avail themselves of the provision of sec. 34 of the Arbitration Act: indeed, they have not sought to do so. 32. It was argued by Mr. Deb for the Defendants, that in Milton & Co. v. Ojha Automobile Engineering Co. I. L. R. 57 Cal. 1280 (1930), Lort-Williams, J., approved of the decision in Achratlal Kesavlal Mehta and Co., by Proprietor Achratlal and Kesavlal Vs. Vijayam and Co., AIR 1925 Mad 1145 . 32. It was argued by Mr. Deb for the Defendants, that in Milton & Co. v. Ojha Automobile Engineering Co. I. L. R. 57 Cal. 1280 (1930), Lort-Williams, J., approved of the decision in Achratlal Kesavlal Mehta and Co., by Proprietor Achratlal and Kesavlal Vs. Vijayam and Co., AIR 1925 Mad 1145 . The learned Judge did not express entire agreement with that decision but only so far as it relates to the finding that a contract, such as the agreement in suit, does not contravene sec. 28 of the Indian Contract Act. 33. Upon the preliminary issue in the suit. I hold that this Court has jurisdiction to entertain it. In so far as my opinion it is at variance with the decision in Achravlal Kesavlal Mehta v. Vijayan & Co. A. I. R. [1925] Mad. 1145, The Khandesh Lakshmivilas Mills Co. Vs. Vinayak Atmaram Karpurkar, AIR 1935 Bom 198 and AIR 1938 334 (Nagpur) , I must respectfully beg to differ from them. I agree with the decision in Kidri Prasad v. K. R. Khosaka A. I. R. [1923] Lah. 425 (2). 34. In my view, the same conclusion would be reached even if there had been a plea in the written statement that the suit is not maintainable. 35. It remains to deal with the notice of motion by which the Plaintiff seeks an injunction to restrain the Defendants from prosecuting their suit in the Ahmedabad Courts until the suit in this Court has received disposal. 36. In the Ahmedabad suit the Defendants as Plaintiffs, claim against the Plaintiff, as Defendants, Rs. 1,669 as the amount of the loss and interest upon re-sale of the goods in suit, delivery of which, it is alleged, was not taken by the Plaintiff. In para. 8 of their written statement in the suit in this Court, the Defendants purport to claim a decree for Rs. 1,265-15-0 as the amount of their loss upon re-sale of the contract goods, there is no plea of set-off in respect of the above sum. 37. In this Court there is no rule allowing or providing for a counter-claim and, therefore, the Defendant's claim cannot be adjudicated in the suit in this Court. 38. Further, sec. 1,265-15-0 as the amount of their loss upon re-sale of the contract goods, there is no plea of set-off in respect of the above sum. 37. In this Court there is no rule allowing or providing for a counter-claim and, therefore, the Defendant's claim cannot be adjudicated in the suit in this Court. 38. Further, sec. 10 of the CPC provides: No Court shall proceed with the trial of any suit in which the matter in issue is also directly and Substantially in issue in a previously instituted suit between the same parties......... litigating under the same title when such suit is pending in the same or any other Court in British India having jurisdiction to grant the relief claimed...... 39. In the petition, supporting the notice of motion, the Plaintiff alleges that all evidence and documents are available in Calcutta whilst on behalf of the Defendants, it is said the evidence is in Ahmedabad. Each party alleges that the other party has instituted his or their suit to harass the other. There is nothing to show that either suit is vexatious or oppressive. If the Plaintiff's suit fails, the Defendants will not get complete relief in this Court even if they are able to show that the Plaintiff was in breach of the contract in consequence of which loss has been incurred. 40. In Pharmaceutical Laboratories of India, Ltd. v. Laxmidas Dayabhai Suit No. 1654 of 1943 (unreported), Sen, J., held that where the legislature, in sec. 10, C. P. C., has provided a procedure to obtain relief, that procedure must be followed. I find no reason to disagree with this decision in a case where there are no grounds to invoke the inherent jurisdiction of this Court. The Plaintiff, if he sees fit, can apply under sec. 10, C. P. C., to the Ahmedabad Court for a stay of the Defendants' suit. 41. Upon the information before me and in the light of the circumstances to which I have referred there is no cause justifying the exercise of this Court's discretion by injuncting the Defendants from prosecuting their suit. 42. The result is that upon the preliminary issue in the suit I find that this Court has jurisdiction to entertain the suit instituted by the Plaintiff but that his application to prevent, by an injunction, the Defendants from prosecuting their suit in the Ahmedabad Court, must fail. 42. The result is that upon the preliminary issue in the suit I find that this Court has jurisdiction to entertain the suit instituted by the Plaintiff but that his application to prevent, by an injunction, the Defendants from prosecuting their suit in the Ahmedabad Court, must fail. As regards costs, the Plaintiff is entitled to the costs of the hearing of the preliminary issue in the suit relating to the jurisdiction of this Court and the Defendants having succeeded in the notice of motion are entitled to the costs in that proceeding.