JUDGMENT 1. ON 1st of April, 1960 an agreement was entered into between one J. N. Jaju as the then sole proprietor of Asian refractoris and Messrs. Cekop, whereby it was agreed that Messrs. Cekop would, sell and Asian Refractory would purchase machinery and equipment as well, as Technical Design for fire brick plant: of output target of about 24,000 bricks per year in two shifts per 8 hours on certain terms and conditions as would appear from the document in writing dated 1st of April, 1960. The terms and conditions, so far as are relevant for the present purpose, provided that the machinery and the equipment would be delivered by Messrs. Cekop F. O. P. Polish Port in partial shipments and would be supplied within 22 months from the execution of the said agreement. It further provided that the total price of Technical Design and machinery and equipment would amount to 56,040 less discount 21/2 on the total value, i. e., 152,139. It further stipulated that 20% of the total price of 152,139 being 39,428 would be paid within 60 days from the date of obtaining the import licence by the asian Refractories and the balance 80% being 121,711 would be paid in eight successive equal half yearly installments of 15,214 together with interest of 6% per annum, the first of such instalment being payable within 390 days from the last substantial shipment. The agreement provided that Asian Refractories would provide Messrs. Cekop with an irrevocable Bank guarantee securing the payment in due time of the full credited amount with interest. It was the further condition of that agreement that Messrs. Cekop would be responsible for faultless design, materials, workmanship and for the proper execution of each machine for which a standard guarantee letter had been issued. The said guarantee was valid for 12 months and would be extended in case of delay in shipment and was to start from the date on which Asian refractories would receive notification from Messrs. Cekop that the machinery and equipment were ready for despatch. 2. THERE was a clause in the agreement providing for arbitration in the following terms-"both parties to this Agreement are deemed to fulfil this Agreement in good faith and mutual trust. Both parties will try to settle any dispute arising out of or in connection with this Agreement by mutual amicable arrangement. 2. THERE was a clause in the agreement providing for arbitration in the following terms-"both parties to this Agreement are deemed to fulfil this Agreement in good faith and mutual trust. Both parties will try to settle any dispute arising out of or in connection with this Agreement by mutual amicable arrangement. Should it fail, the case shall be submitted to arbitration without recourse to state Courts. The case shall be referred to two Arbitrators and one Umpire. The legal place of arbitration shall be at the place of the defendant party which shall be deemed to be Calcutta and Warsaw respectively. Upon receipt of the plaintiff's notice containing the name and address of their arbitrator, the object of dispute and claim of the plaintiff, the defendant party shall be obliged to appoint, within three weeks from the date of receipt of this notice, the second arbitrator and give his name and address to the plaintiff. Both arbitrators shall elect and appoint an umpire within one month from the date of the second arbitrator having been appointed. Failure to appoint the arbitrators or the Umpire within the above definite time or in case of the refusal or inability of any of them to accept the appointment, he or they will be appointed by the president of the polish Chamber of Foreign Trade. Each party will bear the advance expenses connected with the appointment of its arbitrator, The Umpire after hearing both parties shall decide, inter alia, upon the mode of further advance payments. The award of the arbitration court shall determine the amount of arbitration cost and the party having to bear them. The majority award shall be final and binding on both the parties. " The position, as stated above, was from time to time modified and altered by agreements on 20th July, 1960, 21st September. 1960, 15th of february, 1961, 12th of January, 1962, 9th of November, 1964 and 17th of Feb. 1966, whereby and whereunder the interest of the Asian Refractories was purchased from J. N. Jaju by the Asian refractories Ltd. The Asian refractories Ltd. took over all the rights and obligations and agreed to be bound by all the terms and conditions of the agreement entered into between Messrs. Cekcop and J. N. Jaju, on 1st April, 1960. The position was also accepted and agreed to by M/s. Cekop. Cekcop and J. N. Jaju, on 1st April, 1960. The position was also accepted and agreed to by M/s. Cekop. The other material alterations in the terms and conditions; of the bargain between the parties, so far they are relevant for the present purpose, were, that machniery and equipment, Technical Design and technical Assistance would be for a fire brick plant; and production capacity of about 30,000 tons per year, working two shifts of 8 hours. It was further stipulated that the irrevocable Bank guarantee in favour of Messrs. Cekop would be by the- United Commercial Bank Ltd. instead of the Punjab National Bank, as agreed to previously. It was further agreed that the date of readiness of shipment would be accepted as the delivery date. There was also certain alteration of the total price. The guarantee was amended to the effect that "the guarantee shall be valid for 12 months from the commissioning of the plant but not longer than 18 months from the date of lest substantial delivery. " The aforesaid Agreements in modification are all in writing. 3. THE Bank guarantee was given by the United Commercial Bank. It has to be noted that apart from the amendment to the agreement which was signed on the 20th July, 1960 all other agreements were entered into and executed' and signed at Calcutta. On the 22nd December, 1967 the Asian refractories Ltd. instituted a suit in this high Court being suit No. 2928 of 1967 (Asian Refractories Ltd. v. Cefcop and anr.) for a decree for Rs. 11,52,635/-against Messrs. Cekop for an enquiry into the damages suffered by the Asian refractories Ltd. since 1st December, 1967 due to loss in production or, otherwise, and for certain incidental relief's. 4. THE basis of the claim of tide plaintiff in the said suit No. 2928 of 1967, as evident from the plaint, is, that the said machinery and equipment supplied by M/s. Cekop should have been reasonably fit and the technical data and technical assistance sufficient for the said plant to achieve the production capacity as agreed to between the parties. Asian Refractories Ltd. state that the said plant was erected between the months of August, 1964 and July, 1965 and also during the months of May to July, 1966 under the supervision of the technicians of Messrs. Cekop. Asian Refractories Ltd. state that the said plant was erected between the months of August, 1964 and July, 1965 and also during the months of May to July, 1966 under the supervision of the technicians of Messrs. Cekop. The said plant is operating according to the asian Refractories Ltd. under the supervision of the said Technicians since December, 1966. The Asian refractories Ltd. charges Messrs. Cekop with having supplied Plant equipments which were of lesser capacity, and which were unbalanced and under' which it was not possible to achieve: the full stipulated capacity. It further alleges that the Plant supplied was not in accordance with the description contracted for and the Asian refractories Ltd. was entitled to reject the same. The Asian Refractories Ltd. state that they have suffered loss and damages as per particulars they have mentioned in the plaint. It claims a sum of Rs. 24,03,025 /- and sets off and claims the right to set off the dues of messrs. Cekop for the price of the supply of the equipment and the technical data. After setting off dues as aforesaid, on account of the alleged loss and damages, Asian Refractories ltd. claims a sum of Rs. 11,52,675/-from Messrs. Cekop. In the suit filed, the Asian Refractories Ltd. has made the United Commercial Bank Ltd. as the second defendant. No relief, however, has been claimed against the second defendant and it has been stated that the said defendant has been made a party for effectual and complete adjudication of matters in dispute. After institution of the said suit Asian Refractories Limited made an application and obtained an interim injunction from this Court restraining messrs. Cekop from receiving any payment from the United Commercial bank Limited. There was also an injunction granted restraining the Asian refractories Limited from receiving any money from the United commercial Bank Limited. On 19th March 1968 the present application was moved for orders that the suit No. 2928 of 1967 and all proceedings thereunder including operation of the interim injunction obtained on 22nd December, 1967 be stayed, for an injunction restraining the Asian Refractories limited from taking any further steps in the said suit. On the application being moved an ad-interim order was granted by this Court. On the application being moved an ad-interim order was granted by this Court. On the 20th of March 1968 the matter was mentioned before the learned Judge and the interim order obtained was varied to the extent that the United Commercial Bank limited were not to pay money to Messrs. Cekop until disposal of this application. It has to be mentioned that on the 4th January 1968 the application made by the Asian Refractories Limited for interim injunction in suit No. 2928 of 1967 restraining the United Commercial bank Limited from paying money to or Messrs. Cekop from, receiving the money, appeared in the List. It appears that the learned Counsel appeared for the Polish Consul. It is necessary to set out the minutes of the Court of that date as the same would be relevant on the question of waiver: "Mr. M. K. Banerji appearing for the applicant makes his submissions. Mr. D. K. De appearing for the Polish consul submits, 'the Ct. Returnable date extended by 2 months from the date and the matter to appear in the list as a new motion 2 months hence. Interim order to continue,' Mr. De appears on behalf of the Polish Consul only to point out that the address of the defendant No. 1 has been wrongly given as the office of the Polish Consul in Calcutta. He does not represent the defendant. Therefore it will be recorded that his appearance will not be to the prejudice of any rights and contentions of the defendant under the arbitration Act. " 5. IT appears' that the said application again appeared in the List of this Court on the 4th March 1968 and the minutes of the Court read as follows : "the Court : A/o by 15.3.68. Reply 22.3.68. Adjourned till 25.3.68. This direction is without prejudice to Mr. Mitra's client to apply under section 34 of Arbitration Act and take proceedings. " 6. THE present petition has been verified by one Swarnakartic, Saha, who described himself as a constituted attorney of Messrs. Cekop and verified certain statements in the petition as true to knowledge derived from the records and information received from one Mr. Drozdzowski of the Polish consulate at Calcutta. There is a certificate, annexed to the petition from the Polish Consul, certifying that messrs. Cekop is a Polish State-owned enterprise. Cekop and verified certain statements in the petition as true to knowledge derived from the records and information received from one Mr. Drozdzowski of the Polish consulate at Calcutta. There is a certificate, annexed to the petition from the Polish Consul, certifying that messrs. Cekop is a Polish State-owned enterprise. It would be necessary to advert; to this certificate later in this judgment for determination of the question whether there is sufficient evidence that Messrs. Cekop is a part of the Foreign Government of Poland. There is an affidavit in opposition affirmed on behalf of the Asian refractories Limited by one Ratanlal Rampuria affirmed on 10th April, 1968. There is an affidavit of Swarnakartic Saha on behalf of Messrs. Cekop dealing with the said,affidavit of Ratanlal Rampuria affirmed on the 20th of April 1968. There is also an affidavit of Ratanlal rampuria affirmed on 22nd of April 1968 stating certain additional facts. There is further affidavit of swarnakartic Saha affirmed on the 24th April 1968 dlealing with the said affidavit of ratanlal Rampuria affirmed on the 22nd April 1968. Mr. D. K. De and following him Mr. Arya Mitter, learned Counsel for the petitioner, Messrs. Cekop, have submitted before me that- (i.) Messrs. Cekop is a part of the foreign Government of Poland. (ii) The Certificate of the Polish consul establishes that fact. (iiii) Inasmuch as this is a Suit against a Foreign State no suit or proceeditng lie or proceeding or the suit should be stayed. (:iv) There is a valid arbitration agreement. (v) Foreign Law has been chosen in the facts and circumstances of the case both by the implication and by expressed choice. (m) The suit has been filed in breach of the Arbitration Agreement. (vii) Indian Arbitration Act applies and as such the suit should be stayed under Section 34 of the Indian arbitration Act. (viii) The suit is malafide and an abuse of the process of the Court, and (ix) In any event under section 151 of the Code of Civil Procedure the suit should be stayed. 7. THE learned Counsel for the petitioner have drawn my attention to russell on Arbitration, 17th Edition; at pages 35 and 70. (viii) The suit is malafide and an abuse of the process of the Court, and (ix) In any event under section 151 of the Code of Civil Procedure the suit should be stayed. 7. THE learned Counsel for the petitioner have drawn my attention to russell on Arbitration, 17th Edition; at pages 35 and 70. They have also drawn my attention to the decision of the Supreme Court reported in (1961)2 S. C. A. 288 and in A. I. R., 1961 Supreme court page 1285 at 1294 being the decision in the case of (1) Messrs. Dhantrajamal Govindaram v. Shamji Kaliandas and Company, (2) Michael Golodtz v. Serajuddin, A. I. R., 1963 Supreme Court page 1044, the Bench decision of this court in (3) Ramji Dayawahla and sons Private Limited v. Messrs. Invest import, 70 Calcutta Weekly Notes, page 199, the case of (4) Lloyds Triestino sotieta etc., AIR 1959, Calcutta, page 669, cases of Messrs. (5) Laksminarayan ramniwas v. Lloyds Triestino Societta a. I. R. 1960, Calcutta, page 155 (8)Swedish East Asia Company Ltd. v. B. P. Herman and Mohatta (India)Private Limited, A. I. R. 1962, Calcutta, page 601, the decision of The Fehmarn, 1958, 1 Keenly Law Reporter, page 159, Dicey's conflict of Laws, Seventh Edition, page 1070, Rule 20h, Page 1085, Rule 203, russel on Arbitration, Sixteenth Edition, pages 81-92, the "decision in the Case ccf (7) Fort William and Company v. Messrz. Chainrup and Company, 67 Calcutta weekly Notes, page 603, the decision of (8) Hamlyn and Company v. Talishey distillery (1894) AC 202, (9) N. V. Kwik Hoo Tong Handel Meatschappjn v. James Finlay and Company (1927) A. C. 604, Dicey's Conflict of Laws, Rule 148, page 724, sub-rule 1, page 731, sub-rule ii, (Russell on Arbitration, 16th Edition, page 34, Cheshire -Private international Law, 5th Edition, page 221, (10)Vita Food Products v. Unus Shipping company Limited (1939) A. C. 277, (11)The King v. International Trustee etc. (1937) A. C. 500 at 501 and. 529, Cheshire on Private International Law, 5th edition, page 226, (12) Serajuddin and Co. v. Michael Golodetz 63 C. W. N. 717 at 724, 734, 733, 735, 736, (13) Krajina v. The Tass Agency and Anr. (1937) A. C. 500 at 501 and. 529, Cheshire on Private International Law, 5th edition, page 226, (12) Serajuddin and Co. v. Michael Golodetz 63 C. W. N. 717 at 724, 734, 733, 735, 736, (13) Krajina v. The Tass Agency and Anr. (1949) 2 A. E. R. 274, (14) Baccus 's. R. L. v. Servicio national Del Trigo (1957) 1 Q. B. D. 438, the cases of (15) "cristina" (1938) A. C. 485 at 490., (16) United States of america and Republic of France and dolfus Meig Et CIE. S. A. v. Bank of england (1952) A. C. 582, (17)Rahimtoola v. Nizam of Hyderabad and anr. (1958) AC 379, (18) Mirza Ali Akbar kashani v. United Arab Republic (1965) 2 SCA 590, Chesire-Private international Law, 6th Edition, page 99, dicey's Conflict of Laws 7th Ed., p. 102 and page 135, the Bench decision in the case of (19) Royal Nepal Airlines corporation v. Monorama Mehr Singh legha 69 C. W. N. 767 : A. I. R. (1966)Calcutta 319, (20) United Arab Republic and Anr. v. Mirza Ali Akbar Kashani A. I. R. (1982) Cal. 387 and (21) The king v. The General Commissioner for the purposes of Income Tax, etc. (1918) 1 K. B. 486. 8. MR. Subimal C. Roy and following him Mr. Milon Kumar Banerji, learned counsel for the. respondent the asian Refractories Limited submitted before me that the petition of Messrs. Cekop was not properly verified. They drew my attention to Order 19, Rule 3 of the Code of Civil Procedure and re-lied on the decision of (22) Hafiz Sham-sed v. Chatoolal Dey, 46 CWN page 474, the Bench decision of this Court in the case of (23) Bukhtiarpur Light railway Company v. Union of India and another, AIR 1954 Cal. p. 499 at p. 504, paragraph 22. They further submitted that the power of Attorney executed by Messrs. Cekop in favour of the asian Refractories Limited indicate that it was a limited power and the constituted attorney had no authority to make application for stay of suit. They further submitted that there is no proof or proper certificate before this Court that Messrs. Cekop is a part of the Foreign Government of Poland. The Certificate, according to them, indicates that M/s. Cekop is a separate legal juristic entity. They submitted that Certificate from Ambassador and certificate from Consul carry different weight. They further submitted that there is no proof or proper certificate before this Court that Messrs. Cekop is a part of the Foreign Government of Poland. The Certificate, according to them, indicates that M/s. Cekop is a separate legal juristic entity. They submitted that Certificate from Ambassador and certificate from Consul carry different weight. They also submitted that in view of the conduct of Messrs. Cekop they have submitted to the jurisdiction of this Court and have waived the claim for immunity, if any. They relied on the minutes of this Court of the 4th January, 1903 and 4th of March, 1968, referred to above. They further submitted that Asian Refractories limited have a right to institute suit if defects appear in the machinery and the plant agreed to be supplied. The evidence, according to them, is available wholly in India and it would be denial of justice to make their clients to go Poland. It has been urged that balance of convenience is overwhelmingly in favour of trial of suit in India for both the parties. They submitted that their client was not conversant with the Polish law and Polish system. On these grounds they submitted in the facts and circumstances of the case and on the balance of convenience the stay and/or injunction should be refused. They also relied on the decision of the case of Krajina v. The Tass Agency and another, (supra), at page 276, Decey's conflict of Laws, 8th Edition, page 124, section 28 of the Indian Evidence Act, dicey's Conflict of Laws, 8th Edition, page 1118, Rule 185, Cheshire' Private international Law, 6th Edition, pp. 643, 645, Dicey's Conflict of Laws, 8th edition, p. 180, rule 23. They further submitted that after the amendment of section 86 of the Code of Civil procedure by the inclusion of section 2 (d), there; can be waiver of the rights and privileges granted by that section and it was urged in the facts and circumstances of the case there in fact has been a waiver by conduct. It was urged that clauses of the contract do not prevent institution of the suit of the present type after 18 months of the last substantial shipment. Reference was made to Hudson on Building Contracts, 9th edition, pp. 287, 442, 444 and 448. They also relied on the case of (25) Robins v, Gnddard, (1905) 1 KB 294. It was urged that clauses of the contract do not prevent institution of the suit of the present type after 18 months of the last substantial shipment. Reference was made to Hudson on Building Contracts, 9th edition, pp. 287, 442, 444 and 448. They also relied on the case of (25) Robins v, Gnddard, (1905) 1 KB 294. Reliance was also placed on Russell on arbitration 17th Edition, page 95, case of (26)Bonm v. Neame, (1910) 1 Ch. 732 at 739, (8) Hamlyn v. Taliskar Distillery, (1894) AC 202. It was also urged that this application has been filed mala fide and is an abuse of the process of this; Court. They also submitted that because of amendment of the original contract the arbitration agreement does not survive. Reliance was placed on, (27) The Union of India v. Kishorilal Gupta and Brothers, (1960) 2 SCA 343 : (1960) 1 SCR 493 . Reliance was; also placed on (28)Lakshmi-namin Ramniwas v. IV. V. Vereangide neanderlandsche, etc., 64 CWN 269. Coiunsel for the respondent, also drew my attention to Dicey's Conflict of laws, 8th Edition, page 691, rule 27, cheshire Private International Law, 6th Edition, p. 214, 644, pages 100-101, dicey's Conflict of Laws, 7th Edition, p. 135. On the materials before this court, can it be said that Messrs. Cekop is a part of or department of the government of Poland ? This question has to be answered first. In the agreement dated 1st of April, 1960, referred to before, Messrs. Cekop has been described as "exporters of Plant equipment and complete works, Polish foreign Trade Enterprise Incorporated and registered under the Laws of poland and the Register of Enterprises, section C. No. 27 and having their registered office at 1049, Ul. Mokotowska, warsawa, Poland". It has the same description that has been given in the cause title of the present petition. En the petition there is a Certificate annexed dated 15th of March 1968 from the Consul for Poland. It is necessary to set out the Certificate here-under: "consulate OF THE POLISH people's REPUBLIC IN CALCUTTA-This is to certify that Messrs. CEKOP is Polish State owned Foreign trade Enterprise, having its registered office at No. 12, Koscielna Street, wajsawa, Poland. Messrs. CEKOP is incorporated under the Polish law and also is registered in the State Enterprise Register under the section "c" No. 27. I do certify that Messrs. CEKOP is Polish State owned Foreign trade Enterprise, having its registered office at No. 12, Koscielna Street, wajsawa, Poland. Messrs. CEKOP is incorporated under the Polish law and also is registered in the State Enterprise Register under the section "c" No. 27. I do certify that Messrs. CEKOF being Polish State owned Foreign trade Enterprise is authorised by the polish Government to carry on export activity, export of machineries, equipments, etc., and also is under the direct control of the Ministry of Foreign trade, Government of Polish People's republic. Seal of konsulat Polski w. Kalkucie 481. Sd./- Zdzislaw Tomczyk consul for Poland." 9. IT may also be mentioned that in ex. 'a' herein, being the power of attorney, Messrs. Cekop has described itself as "the said firm" - Reliance was placed by both sides on the decision of (13) Krajina v. Tass Agency and another, (1949) 2 All England Reports, page 274. In that case the plaintiff sued a News Agency for alleged libel. After entering a conditional appearance the first defendant applied to the court to set aside the writ on the ground that they were a Department of the Soviet state and as such immune from being sued. In the proceedings it was shown that in January 1938 particulars were filed under the Registration of business Act, 1916 by the Second defendant an English Subject. The business was described as Telegraphic News agency and in the particulars appended to the application it was stated-"the business name and particulars of the foreign firm as Agent for whom business is carried on - Tas agency, Moscow, USSR". Soviet Ambassador in Great britain certified that the Agency constitute a Department of Soviet State. It would be relevant to set out material portion of the certificate given by the soviet Ambassador in that case- "I, Georgi Nikolaevich Zaroubin, ambassador of the Union of Soviet socialist Republic in Great Britain, hereby certify that that the Telegraphic agency of the Union of the Soviet Socialist republic, commonly known as tass, or Tass Agency, constitute a department of the Soviet State, i.e. to say Union of Soviet Socialist Republic, exercising the rights of a legal entity. " Before the Court of Appeal in England the statute establishing the Tass agency was produced by the plaintiff. " Before the Court of Appeal in England the statute establishing the Tass agency was produced by the plaintiff. Clause 15 of the said statute provided-"the Telegraphic Agency of USSR and the Telegraphic Agency of the union Republic enjoyed all the rights of a juridical person." it was urged by the Counsel for the plaintiff in chat case that the effect of the statute creating the Tass Agency specially clause 15 makes it a separate juridical entity from the Soviet State and as such it was not entitled to immunity. It was further argued that the certificate of the Ambassador was self-contradictory and as the onus of establishing immunity lay on the defendants, they were not entitled to such immunity. 10. COHEN, LJ. held that the defendants had established that Tass was in essence a Department of State and it was the necessary for the plaintiff to prove that they were separate legal entity which the plaintiff had failed to prove, cohen, L. J. had also considered the fact of registration of Tass in England. More or less the same view was expressed by the other learned Judges. In the case of (14) Baccus, s. R. L. v. Servicio National Del Trigo, (1957) 1 QBD 438, there was an affidavit by the Spanish Ambassador stating that the defendant was a part of the spanish State and a Department of the spanish Government. It was held by the Court of Appeal that the defendant, notwithstanding that they were a corporate body and a separate legal entity, were entitled to claim sovereign immunity, as they were a department of the Government. Singleton, L. J. took a contrary view. The decision held that under the English law the question whether a particular body is a department of foreign government is a question of foreign law. In this respect the evidence of the foreign Ambassador is of high evidential value. It is for the defendant to prove by satisfactory evidence that the body sued is a department of foreign government. The burden of proing foreign Law lies on the party who bases its claim or defence on it. In england if no" evidence of foreign law is produced it is presumed that Foreign law is the same as English Law until contrary is proved. The position is a slightly different in India under sec. 38 of the Evidence Act. The burden of proing foreign Law lies on the party who bases its claim or defence on it. In england if no" evidence of foreign law is produced it is presumed that Foreign law is the same as English Law until contrary is proved. The position is a slightly different in India under sec. 38 of the Evidence Act. Under this section books containing statement of foreign laws published under the authority of the Government of those countries may be directly referred to. 11. THERE is no evidence or statement before me as to what is the relevant Pblish Law on this aspect. If the certificate of the Polish Consul set out hereinbefore is analysed it appears that messrs. Cekop is: (a) a Polish State-owned foreign trade Enterprise,' (b) it has a registered office at poland, (c) it is incorporated under the polish Law, (d) it is also registered in the State enterprise Register, (e) it is authorised by the Polish government to carry on export activity, (f) it is also under the direct control of the Ministry of foreign State ob" the Government of Polish People's Republic. 12. IT is significant to note that unlike the two English cases referred to hereinbefore there is no evidence or statement by the Polish Consul to the effect that it is a Department of the polish People's Republic or of the polish Government. On the contrary there is the statement that it is a body which is registered and incorporated,. The result is, from the Certificate it appears that, Messrs. Cekop is a body incorporated and registered and as such must be presumed to be a legal entity, but there is no statement and no evidence to indicate that such legal entity is a part of the Polish Government. The claim for immunity in this application has also been made on behalf of Messrs. Cekop, but not on behalf of the Polish government. It is also significant to note that on the 4th January, 1968 the learned Counsel appearing on behalf of the Polish Consul stated that he does not represent Messrs. Cekop. The facts on this aspect of the matter are different from the cases of Royal Nepal Air lines Corpn. v. Monorama Mehr Singh legha, (supra), and United Arab Republic and anr. v. Mirza All Akbar kashani, (supra ). Cekop. The facts on this aspect of the matter are different from the cases of Royal Nepal Air lines Corpn. v. Monorama Mehr Singh legha, (supra), and United Arab Republic and anr. v. Mirza All Akbar kashani, (supra ). On the evidence before me, I have, therefore, come to the conclusion that M/s. Cekop has not been able to establish to the satisfaction of this Court that it is a part or a Department of the Government of Poland. In this connection it is well to remember the observations made by Singleton, l. J., in Baccus S.R.L. v. Servicio National del Trigo, (1957) 1 Q. B.-438 at 461. "I know of no case which goes as far as does the claim made by the defendant here. I cannot find that it has been almost universally recognised that if a government sets up a legal entity, something which may contract on its own behalf as a limited company does in this country, it can succeed in a claim for sovereign immunity in respect of the activities of that company or entity. The claim goes further than has been generally recognised, and in the interests of good government, and in the interests of business relationship and business dealings throughout the world, I do not think that the claim ought to be allowed on the material before us. In one of his affidavits the ambassador speaks of how the courts, he feels sure, would regard any trespass on the sovereign immunity of the State of Spain. I feel quite sure that the courts of this country would not knowingly do anything which they understood to be a violation of the sovereign immunity of the State of Spain, but the position is wholly different, it seems to me, if a separate entity is set up and is allowed to trade with its own people conducting its business. One is not trespassing upon sovereign immunity in saying that the body so created should not have the immunity granted to a foreign sovereign or to a foreign State." It is true that the above view was not shared by the majority of the judges in that case but in view of- (a)the fact that there is no evidence to show that Messrs. Cekop is a department of the Government of Poland, (b) statement of the counsel for the Consul for poland that he does not represent messrs. Cekop, (c) the absence of any claim being made on behalf of the polish Government claiming immunity (d) the fact that Messrs. Cekop is an incorporated and registered body and (e) the fact that in the Power of Attorney Messrs. Cekop describes itself as a firm, the above observations of Singleton, l. J., in my opinion become apposite. 13. BEFORE discussion on this aspect of the matter is concluded it is however necessary to refer to the decision of the case of State Trading Corporation of India Ltd. v. Commissioner Commercial Taxes, (1964) 2 S. C. A. 201. In that case the majority of the Judges of the Supreme Court while dealing with the question whether the State Trading corporation was a citizen entitled to the benefit of article 19 of the Constitution of India had observed that the State trading Corporation is really a department of the Government behind the corporate veil and it is not possible to pierce the veil of incorporation to determine the citizenship of the members and then to give the Corporation the benefit of article 19 of the Constitution. Dasgupta, J. held that the state Trading Corporation is not a department or organ of the Government. The question however whether the State Trading Corporation was entitled to the immunities and the privileges and the rights of Government, being a part of it, was not directly at issue. It is therefore not possible to draw an analogy without any evidence about the constitution of M/s. Cekop, between M/s. Cekop and the St. Trading corpn. No evidence unlike the two English cases referred to above, however, was adduced in this case on the constitution of Messrs. Cekop. If it was possible otherwise to accept the contentions made on behalf of the petitioner I would not however have made much of the fact that in this case the certificate was from the Consul and not from the Ambassador. 14. IN view of the decision reached by me on the question whether messrs. Cekop. If it was possible otherwise to accept the contentions made on behalf of the petitioner I would not however have made much of the fact that in this case the certificate was from the Consul and not from the Ambassador. 14. IN view of the decision reached by me on the question whether messrs. Cekop is a part or a Department of Foreign Government, it is not necessary for me to go into the question whether in the facts and circumstances of the case a Foreign Government or a department of a Foreign Government was entitled to claim immunity from being sued in the Courts of our Country. If it were necessary for me to decide that question then I would have been bound to hold, on the authority of the decision of the Supreme Court in the case of Mirza Ali Akbar Kashani v. The United Arab Republic and anr. (1965) 2 S. C. A. 590, that in the absence of consent as provided in Section 86 of the Code of Civil Procedure of the central Government the present suit was incompetent. It is not necessary far me to consider the various cases cited on the question of the immunity of the Foreign States from being sued in the municipal courts of other countries. It has been urged on behalf of the respondent before me that, in view of its conduct, the defendant has expressly or impliedly waived the pri-viiage or the claim for immunity. This question will have to be determined with reference to Section 86 of the Code of Civil Procedure. In view of Section 88 (2) (d) of the Code of Civil procedure, it is possible for a Foreign state expressly or impliedly to waive the privilege. It has been argued that by entering unconditional appearance in the suit and by not reserving the right or the claim to make applications on the ground of the immunity of Foreign State as recorded in the miuntes of this Court dated 4th of January, 1968, and 4th March, 1968, there has been waiver. I am unable to accept that contention. To be a waiver there must be conscious relinquishment of one's right. To waive rights there must be not only knowledge of these rights but unequivocal expression of intention to waive them. In India there is no scope for conditional appearance to be entered. I am unable to accept that contention. To be a waiver there must be conscious relinquishment of one's right. To waive rights there must be not only knowledge of these rights but unequivocal expression of intention to waive them. In India there is no scope for conditional appearance to be entered. Immunity to Foreign State is not granted on the basis of any technical rule, but as a matter of principle. In the facts and circumstances of the case if it was necessary for me to go into the question whether there has been waiver by the conduct of the defendant I would have held that there has been no such waiver. On this aspect of the matter reliance may be placed on the observations of the Bench decisions of this Court in tike cases of (20) United Arab Republic and anr v. Mizra Ali Kashani A. I. R. (1962)Cal. 387.,. (19) Royal Nepal Airlines corporation v. Monorama Mehr Singh legha 69 C. W. N. 767. 15. THE other matter that requires consideration in the case is whether there Is a valid clause covering dispute being the subject-matter of the suit which the parties have agreed to refer to arbitration. If there is such a clause, then, are there sufficient reasons tor not referring the matter to arbitration under section 34 of the Arbitration Act or are there sufficient grounds for granting an Injuction or a stay of the suit under section 151 of the Code of civil Procedure? Having regard to the amplitude of the arbitration clause, I am of the opinion that the subject-matter of the suit are matters agreed to between the parties to be referred to arbitration as mentioned in the agreement dated 1st of April, 1960 which has been adopted and accepted by the respondent Asian Refractories Ltd. Indeed no argument was advanced before me by the learned Counsel for the respondent on the question whether the Arbitration clause is bindnig on the respondent, Asian Refractories Ltd. or not. It has also not seriously been disputed that the arbitration clause in this case covers the subject-matter of the suit. It has also not seriously been disputed that the arbitration clause in this case covers the subject-matter of the suit. It was however suggested during the course of the argument on behalf of the respondent that there is an additional party in the suit namely the united Commercial Bank Ltd. which is not a party to the arbitration agreement and as such the suit filed by the asian Refractories Ltd. is not covered by the arbitration agreement. In view however of the nature of the suit and the fact that no relief is being claimed against the United Commercial Bank ltd. by the plaintiff in the suit, I am of the opinion that the fact that the united Commercial Bank Ltd. is not a party to the arbitration agreement would not make any material difference in this case. I have very great doubts whether the United Commercial bank Ltd. is at all a necessary party in this suit. The party to an arbitration agreement cannot, in my opinion, defeat agreement between the parties merely by joining a party in suit against whom no relief is being claimed. It has further been argued though not very seriously that inasmuch as there were subsequent amendments to the original agreement and inasmuch as the subsequent amendments do not contain the arbitration clause, there was no arbitration agreement covering the dispute in suit. Reliance was placed on the decision of (27) Union of India v. Kishorilal Gupta, (1960) 2 SCA 343. There the position was entirely different, the effect of the subsequent agreement was the cancellation of the previous contract and the final settlement of contract provided that the contract stands finally completed in terms of the settlement as recorded in terms of the settlement contract. The facts of the present case are different where the original contract survives. There were only modifications of certain methods of the performance and node of payments. In that view of the matter, I am of the opinion that the subject matters of the dispute between the parties in the suit are covered by a valid arbitration agreement. 16. The facts of the present case are different where the original contract survives. There were only modifications of certain methods of the performance and node of payments. In that view of the matter, I am of the opinion that the subject matters of the dispute between the parties in the suit are covered by a valid arbitration agreement. 16. IT has been contended by the learned Counsel for the petitioner that the stay should be granted under section 34 of the arbitration Act or an Injunction should be granted under section 151 of the Code of Civil Procedure for the following reasons:- (a) there is a valid arbitration clause and no reason has been shown why the parties should not be held to their bargain, (b) that by the express agreement and by necessary implication foreign law, being the Polish Law, is the proper law of contract in this case. Reliance was placed for this purpose in this case on the clause of the contract which stipulated that machinery and equipment would be delivered by Messrs. Cekop F. O. B. Polish Port for the argument that Poland was the place of performance. Attention of the Court was drawn to the fact that in this case by the virtue of the Arbitration Clause the legal place of arbitration would be warsaw that is in Poland. Learned counsel also drew my attention to the facts that payment under the contract was to be made in Poland and one of the agreements namely the agreements namely the agreement dated 20th July, 1960 was signed in Poland.' (c) The suit is thoroughly malafide and has been filed only to prevent messrs. Cekop from receiving money. The suit had been filed in December, 1967, while the date of last substantial shipment was June, 1964. In any event it was contended that Messrs. Cekop would have no liability after 18 months from that date, i.e., December, 1965. The suit was therefore not clearly maintainable and as such an abuse of the process of the Court. (d) It was further contended that the balance of convenience in this case would be for trial at Warsaw. In any event it was contended that Messrs. Cekop would have no liability after 18 months from that date, i.e., December, 1965. The suit was therefore not clearly maintainable and as such an abuse of the process of the Court. (d) It was further contended that the balance of convenience in this case would be for trial at Warsaw. (e) It was also submitted that in view of the fact that a number of foreign countries are participating in the development projects of our country, foreign merchants and traders are permitted to file suits in violation of the agreements between parties and as such both public and private interests would suffer. (f) It has also been urged that there has been suppression of facts in the application for interim order in the suit. (g) It was further contended on behalf of the petitioner that there is no satisfactory evidence of any application to the Reserve Bank of India for foreign exchange before this Court to take note of. Reliance was placed on the bench decision in the case of (3) Ramji dayawala and Sons Pvt. Ltd. v. Invest import 70, Calcutta Weekly Notes page 199. It was contended on behalf of the respondent that- (a) that the proper law of contract would be the Indian Law. The Court would not decide in any event, at this stage as to what would be the proper law of contract. (b) The balance of convenience was overwhelmingly in favour of the trial of the suit at Calcutta. Reliance was placed on the affidavit of Ratanlal rampuriya affirmed on the 22nd of July, 1968. It would be denial of justice to make the parties go to Warsaw for adjudication of the dispute between the parties. (c) It was further contended that the application was mala fide and on that ground the stay should be refused. (d) It was further contended that the clause on which reliance was placed on behalf of the petitioner for the proposition that the liability was only for a period of 18 months from the last substantial shipment, does not cover a situation like the present. (c) The learned counsel for the respondent further contended that if it was a matter of costruction then the matter should be dealt with by the court and not left to arbitration. (c) The learned counsel for the respondent further contended that if it was a matter of costruction then the matter should be dealt with by the court and not left to arbitration. In my opinion in this case it is unnecessary to decide as to what should be the proper law of contract at this stage. When the dispute comes to be adjudicated upon either in the suit filed by the plaintiff in Calcutta or before the Arbitrators in Warsaw it is that forum that would have to decide which should be the proper law of contract by which the parties should be governed. In the case of (4) M\s. Llyods Trestino Societa etc., AIR 1959 calcutta 669, the contract provided for adjudication by Italian Courts. It was admitted that the contract would be governed by Italian Law. The court here stayed the action. In the case of (28) Lakshminarayn Ramniwas v. N. V. Vereengide etc., 64 CWN 269, even though the law applicable was the jaw of Netherlands and the dutch Courts were chosen, the Court here refused to stay the suit here as the bulk of the evidence was in India. In the case of (6) Swedish East Asia co. Limited v. B. P. Herman and Mohatta (India) Private Limited, AIR (1962) Cal. 601. there was an express choice of Swedish Law and Swedish court - there was no inconvenience of the trial in Sweden. The suit here was stayed. Even if the foreign law, in this case, the Polish Law, is the proper law this Court would be competent to decide the dispute according to that law. If it is clearly found that the proper law of the contract is the foreign law or if that is the admitted position, then that would be a relevant though not the determining factor in deciding whether stay under section 34 of the Arbitration Act or an Injunction under s. 151 of the C. P. C. should be granted in respect of the suit filed in this Court. If, however, the question what is proper law is not absolutely clear but a debatable one, then the Court should not in my opinion base its judgment on that consideration. If, however, the question what is proper law is not absolutely clear but a debatable one, then the Court should not in my opinion base its judgment on that consideration. Cartain features of the bargain between the parties may be examined in this case to find out whether the question what is the proper law is a debatable one unlike some of the cases noted hereinbefore there is no clear statement by the parties that the proper law would be either Polish or Indian. All the different agreements except the agreement dated 20th July 1960 were signed and executed in India. It is true that the agreement provided for shipment F. O. B. Polish Port and also for payment in Poland, and it stipulated that last substantial shipment of machinery and equipment would be considered as fulfilment of deliveries. But the contract was not only for the supply of equipment but also for supply of Technical design and the bargain also provided for putting into operation of the plant with the advice of Messrs. Cekop and for proper execution of machine there was a stipulated guarantee period. The machinery were to be put into operation and technical Design applied in India. In this context can it be said that place of performance was only in Poland ? if a foreign government was a party then a presumption in certain cases might have arisen that, foreign law was applicable but as has been held in this case that foreign government is not a party to this bargain, no question of that presumption arises in this case. It is also necessary to bear in mind that the clause of arbitration does not provide that in all circumstances arbitrations are to be held in Warsaw. If the dispute was raised by Messrs. Cekop against the Asian Refractories Limited then in that case the arbitration would have to be held at Calcutta. Could it be said that the proper law of contract would be different varying from whether messrs. Cekop was the plaintiff or the defendant ? These features of the contract in the present case, in my opinion, distinguish this case from facts of the case of Messrs. (1) Dhan-rajmal Gobindram. Messrs. Shamji kalidas, (1961) 2 SCA 288, (9) N. V. Kwik Hoo long Handel etc. v. James finlay and Co. Cekop was the plaintiff or the defendant ? These features of the contract in the present case, in my opinion, distinguish this case from facts of the case of Messrs. (1) Dhan-rajmal Gobindram. Messrs. Shamji kalidas, (1961) 2 SCA 288, (9) N. V. Kwik Hoo long Handel etc. v. James finlay and Co. Ltd., 1927 AC 604, (8)Hamlyn v. Talisker Distillery, (1894)AC 202, (11) Rex (The King) v. International Trustee for the Protection of Landholders etc., (1937) AC 500, and (10) Vita Food Products Incorporated v. Unus Shipping company Limited, (1939) AC 277. Having; regard to the principles as stated in Dicey's conflict of Laws, Cheshire's Private International Law and russell, on Arbitration cited from the bar the question what would be proper law of contract in this case is a debatable one. In that view of the matter in my opinion, in the facts and circumstances of this case it is desirable to proceed by the test laid down by Lord denning in the case of (30) The Feh-marn, (1958) 1 Weekly Law Reports 159 at 162 when His Lordship observed "i do not regard the choice of law in the contract as decisive. I prefer to look to see with what country is the disputes most closely concerned. " 17. IN the case of (2) Michael golodetx v. Serajuddin, 63 CWN p. 128, ray, J. held that even if the arbitration agreement provided for settlement of dispute by arbitration in New York, according to the American Arbitration association Rules, section 34 of the Arbitratibn Act applies and in that case his Lordship did not find any sufficient reason for not staying the action commenced in breach of the agreement. The learned Judge granted the stay under section 34 of the Arbitration Act. In appeal, the Division Bench of the court held that section 34 of the Arbitration Act does not apply. The Division Bench was further of the opinion that there were factors for refusing a stay which according to the Division bench, the learned trial judge, did not take into consideration and as such stay v/as refused and the order of the trial judge vacated. The Division Bench further held that even if section 34 of the Arbitration Act does not apply the court; can exercise similar powers under section 151 of the Code of Civil procedure. The Bench decision is reported in 63 CWN p. 717. The Division Bench further held that even if section 34 of the Arbitration Act does not apply the court; can exercise similar powers under section 151 of the Code of Civil procedure. The Bench decision is reported in 63 CWN p. 717. There was further appeal to the Supreme Court and the judgment of the Supreme Court is reported in AIR (1963) SC 1044. The Supreme Court did not specifically decide the question whether section 34 of the Arbitration Act applies. It assumed that it does and further held that the power enunciated by section 34 of the Arbitration Act was inherent in the Court and came to the conclusion that in the facts and circumstances of that case a stay should not be granted because most of the evidence in that case was available in India and there were difficulties of foreign exchange and it would have been extremely difficult for the Indian Merchant to go to New York for the purpose of arbitration. It was conceded in that case that the proper law of contract would be the Indian law. It has been contended by the learned counsel for the petitioners in this case that that factor distinguishes the instant case before me from the case before the Supreme Court. The position, therefore, seems to be that either under section 34 of the Arbitration Act or section 151 of the Code of Civil Procedure, the court has the power to stay a suit provided in the facts of a particular case the interest of justice requires it. There would, however, be in my opinion, a difference of approach in exercising the power under the two different sections. It is often contended that a suit has been filed mala fide and is in abuse of the process of the Court. When the Court exercises its jurisdiction under section 151 of the Code of civil Procedure, the Court would examine that contention closely. An examination of that contention would necessarily involve an examination, of the merits of the case. It is often contended that a suit has been filed mala fide and is in abuse of the process of the Court. When the Court exercises its jurisdiction under section 151 of the Code of civil Procedure, the Court would examine that contention closely. An examination of that contention would necessarily involve an examination, of the merits of the case. Such an examination of the merits of the case, in my opinion, would become unnecessary if the Court exercises powers under section 34 of the Arbitration Act as has been observed by the Supreme court that in an application under section 34 of the Arbitration Act the Court is not competent to go into the question of the validity of the claim made in the suit. Reference may be made to the decision of the Supreme Court in the case of Gaya Electric Supply company Limited v. State of Bihar, AIR 1953 SC p. 182. Further in an application under section 34 of the Arbitration act it is the party resisting a stay that has to satisfy the Court by evidence and reasons why a stay should not be granted, the onus in that case is on the party resisting the stay. But in an application under section 151 of the code of Civil Procedure the onus would be on the party making that application for the stay of the suit or injunction. Where however the entire evidence has been placed before the court the question of onus does not assume any importance.- 18. IN this case it is therefore, necessary to examine whether there is sufficient evidence cither under provisions of section 34 of the Arbitration act to hold that there should be a stay of the suit or to grant an injunction restraining the suit under section 151 of the Code of Civil Procedure. It has been contended that the suit is an abuse of the process: of the Court. It has further been argued that on the construction of the clause of the contract the liability of Messrs. Cekop is only limited for a period of 18 months after the last substantial shipment and a claim for damages beyond the period of 18 months for defects in the machinery supplied is not maintainable. If this was an application only under section 34 of the Arbitration Act I would not have considered this contention at all. Cekop is only limited for a period of 18 months after the last substantial shipment and a claim for damages beyond the period of 18 months for defects in the machinery supplied is not maintainable. If this was an application only under section 34 of the Arbitration Act I would not have considered this contention at all. That consideration as mentioned, before, under section 34 of the Arbitration Act, is not a relevant consideration. Even if an examination of the said contention is necessary under section 151 of the Code of Civil Procedure it is difficult to come to any conclusion, at this stage, that the suit framed is not maintainable and there is no liability of Messrs. Cekop beyond the period of 18 months after the last substantial shipment. Reliance was placed on behalf of the respondent on the decision of (25) Robins v. Goddard (1905) 1 KB. 249 at 303, and Hudson on Building contracts, pages 287, 442, 444, 448 for the argument that the suit as framed is not precluded by any clauses of the contract in this case. I am of the opinion that argument is not without substance. It is not necessary for me to decide that question finally at this stage. In that view of the matter on the materials before me at this stage I am of the opinion that it is not possible to hold either that the suit as framed is no maintainable or has been filed in abuse of the process of this Court. The next contention of the petitioner on this aspect of the matter is that there is no scope for evidence and this is matter of construction of the contract. On this submission the petitioner wants to contend that no question of balance of convenience arises. If the petitioner is right in that contention then this case is pre-eminently one suited for adjudication by a Court of law. Such adjudication will not in any way prejudice the petition. For this purpose reliance may be placed on the decision of (26) Bonn v. Neame, (1910) 1 Ch. 732 at 739 and Russel on arbitration 17th Edn. p. 85. If the claims of the parties depended mainly on the construction of the various clauses of the contract then I would have held there are sufficient reasons for refusing to grant a stay of the suit. 732 at 739 and Russel on arbitration 17th Edn. p. 85. If the claims of the parties depended mainly on the construction of the various clauses of the contract then I would have held there are sufficient reasons for refusing to grant a stay of the suit. IE on the other hand in determining the rival claims of the parties evidence becomes necessary there it not only on meds to be examined (sic) what would be in the interest of justice ? In view of the nature of the suit, in order to prove that the machinory supplied was defective or damaged and as a result damages were suffered, evidence which is available in India mainly would have to be adduced by the Asian Refractories Ltd. Et seems that, evidence if any, in rebutal to be given by Messrs. Cekop would also be mainly available in India. It has been stated in the affidavit that there would be difficulties of obtaining foreign exchange for taking such witnesses to Warsaw. It has also been contended that the Asian Refractories ltd. have no competent lawyer in warsaw while Messrs. Cekop can have the assistance of the Polish Consulate. Of this last argument I do not make much, because, it not being a department of State, if Messrs. Cekop can have the assistance of the Polish consulate in Calcutta in conducting its litigation, then there is no reason why the Asian Refractories Ltd. would not have similar assistance from Indian embassy in Warsaw. The question, however, is, in view of the frame of the suit and the nature of the issues involved, the likely evidence required and in the background of the restriction of foreign exchange, what would be in the interest of justice? There is no statement on behalf of the petitioner that there would to any particular difficulty in conducting the litigation at Calcutta. 19. There is no statement on behalf of the petitioner that there would to any particular difficulty in conducting the litigation at Calcutta. 19. I have come to the conclusion, that inasmuch as the predominant evidence is in India and inasmuch as there are serious difficulties in obtaining foreign exchange, which fact has been stated in the affiavit and of which as a Judge I am entitled to take judicial notice and also in view of the fact that difficult questions of law such as construction of the various clauses of lite contract and the determination of the question as to what would be the proper law of contract, are involved, that it would not be in the interest of justice to stay the suit at Calcutta High court. In view of the facts mentioned by me I have come to the conclusion that there are sufficient grounds for refusing stay of the suit under section 34 of the Arbitration Act. In order to be entitled to an injunction under section 151 of the Code of Civil Procedure the applicant or the petitioner must establish that such an injunction is essential in the interest of justice reliance may be placed for this proposition on the case of (31) Monharlal v. Seth Hiralal A. I. R. (1962) S. C., 527 at 534 and 535. In this case, in my opinion, in view of the facts mentioned hereinbefore the petitioner has failed to establish that. It has been urged that where there is such bargain between the parties, as in the present case, the Court should enforce such bargain in order to keep confidence of the foreign merchant which is necessary for the development of India's economy. When foreign merchants contract with Indian nationals containing an arbitration clause they do so with the knowledge of this law that such an arbitration clause would not be enforced if they work injustice between the parties. This Court is concerned with justice between the parties irrespective of nationality of the suitors I dissent from the view that even at the cost of injustice to the nationals this Court should enforce such a covenant for the purpose of gaining confidence of foreign merchants or traders. It is doubtful in any event if confidence of anybody can be obtained by such means or whether it is worthwhile obtaining such confidence by perpetuating such injustice. It is doubtful in any event if confidence of anybody can be obtained by such means or whether it is worthwhile obtaining such confidence by perpetuating such injustice. In view of the facts and circumstances of the case and after taking into consideration the convenience of both parties as I have come to the conclusion that it would be unjust to stay the further prosecution of the suit in this Court, it is not necessary for me to consider this argument further. 20. ON the materials before me it is also not possible to hold that either the present application is malafide or that in the application for interim order by the respondent there has been suppression of material facts. In the case of (2) Michael golodetz v. Serajuddin, A. I. R., 1963 supreme Court, page 1044 it is significant to remember that the proceedings of arbitration were pending in America when a suit was filed in the Calcutta high Court. There was a statement that the entire evidence was available in India. The Supreme Court was of the opinion that that statement was not challenged in the affidavit in opposition. Similar is the case here. Supreme Court also took into consideration the severe restriction imposed in the matter of foreign exchange and on that basis their Lordships upheld the judgment of the Division Bench of the Calcutta High Court refusing stay of the suit. It has been contended that there was a concession made in that case that the proper law of contract would be the Indian Law. It has been argued on behalf of the petitioner before me that the concession made all the difference. I am unable to accept that contention. As mentioned hereinbefore what would be proper law of contract, would be decided by the forum finally deciding the issues between the parties. Furthermore, the question, what would be the proper law of contract in this case is a debatable question and that itself is a ground for refusing stay. Reliance was also placed strongly on the case of Ramji dayawhala v. Invest Import, (supra). There, however, stay was granted. There for the purpose of signing contract one of the directors of the plaintiff had gone to Yugoslavia. Here, except in the case of one amendment, all the contracts were signed at Calcutta. Reliance was also placed strongly on the case of Ramji dayawhala v. Invest Import, (supra). There, however, stay was granted. There for the purpose of signing contract one of the directors of the plaintiff had gone to Yugoslavia. Here, except in the case of one amendment, all the contracts were signed at Calcutta. In that case there was no statement in the affidavits that foreign exchange would not be available. The court consindered in that case that Lalabhai, managing Director of the plaintiff company, had obtained the requisite foreign exchange for going to Belgrade for signing of the contract. Furthermore the Court in that case was not satisfied what would be the required evidence or that the foreign exchange would not be available. As discussed above, the facts of this case are different. There is a statement in the affidavit that the evidence would be in India. There is no serious denial of that fact. There is the statement that there would be difficulty in obtaining foreign exchange. There is no serious denial of the same. Here all the contracts except one simple amendment were signed at Calcutta. In view of what is stated above I am of the opinion that the decision in the case of ramji Dayawhala v. Invest Import, (supra), cannot be relied on, in aid of the petitioner. 21. THERE were two other points which were argued, namely, that the power of attorney did not authorise making of this application and secondly the petition has not been properly verified. It is true that strictly speaking the power does not authorise this application. But giving a liberal construction on the power I am of the opinion that this application is covered by the authority granted. The other point that has been urged in this case is that the petition has not been properly verified. It has been submitted that this is an original application and not an interlocutory application and it should be in compliance with rule 3 of order 19 of the Code of Civil Procedure. The other point that has been urged in this case is that the petition has not been properly verified. It has been submitted that this is an original application and not an interlocutory application and it should be in compliance with rule 3 of order 19 of the Code of Civil Procedure. it was argued that provision of Order 19 of Rule 3 should be strictly observed and the affidavits which are violative of the requirement of the mandatory provisions of law should be ignored Reliance was placed on the decision in the case of (22) Hafiz Shamshed v. Chattolal Dey, in 46 CWN page 474, and (32) B. B. Light Railway Co. Limited v. Union of India, AIR (1954)Cal. 499 at 504. It has been urged on behalf of the petitioner that inasmuch as this is an application in the suit it is not an original application. I am of the opinion that the affidavit verifying the petition in this case should have been in conformity with order 19, rule 3 of the Code of Civil Procedure. I am also of the opinion that the affidavit is defective. If it was possible for me to accept the contentions of the petitioner before me I would have acted upon this petition, I would have given an opportunity to the petitioner to re-verify the same in accordance with the law. If after that opportunity was given the petitioner had failed to re-verify the petition in accordance with the law, I would have rejected the same. In view, however, of the fact that I am unable to accept the contentions of the petitioner, I do not think any useful purpose would be served by giving the petitioner an opportunity to reverify the petition. I must, further observe that no such prayer for revivification or reaffirmation was made before me on behalf of the petitioner. 22. FOR the reasons given by me hereinafter this application fails and is hereby dismissed. All interim orders made herein are hereby vacated. Costs of this application will be the costs in the suit No. 2928 of 1967 of this Court. There would be stay of the operation of the order passed by me today up to 25th November 1968.