JUDGMENT Dipak Kumar Sen J. Asteroid Maritime Limited, the plaintiff, instutited this suit on the 21st July 1984 against Mohamed Abdul Rehman Orri, Saudi Cargo Carriers Company Limited, Saudi Chartering S.A., Saudi International Shipping Company S.A., Saudi India Navigation Line, M/s Saudi Europe Line, impleaded as defendants Nos. 1, 2, 3, 4, 5 and 6 respectively, claming inter alia, a decree for Rs. 45,70.543.60p interest on the said amount from the 18th June 1984 till the filing of the suit, further interest and costs. 2. The plaintiff is a company incorporated in Cyprus. The defendant No.1 is national of Saudi Arabia. The defendant no.2 is a shipping operation and chartering company incorporated in Saudi Arabia. The defendant No. 3 is a ship chartering company also incorporated in Saudi Arabia. The defendant No. 4 is a ship management company incorporated in Greece. The defendant no. 5 is a ship-owning company incorporated in Saudi Arabia. The defendant No. 6 is a ship managing and operating company incorporated in Greece. 3. The case of the plaintiff in the plaint appears to be as follows : - a) The plaintiff owns and runs a sea going vessel named M.V. Fidelity (hereinafter referred to as the said vessel) which is a bulk carrier. b) The defendants Nos. 2, 3, 4, 5 and 6 are companies owned and controlled exclusively by the defendant No.1 c) The plaintiff let out under a time charter the said vessel to the defendant No.2 for one trip form Spain to the Arabian Gulf via continental Europe and Red Sea. The said Charter party was concluded by exchange of telex and recorded in a fixture note. The agreement was entered into in London. d) Under the said charter party the said vessel was delivered to the defendant no.2 on the 3rd April 1984 at the Port of Cadiz in Spain. e) The defendant no.3 negotiated the said charter and the defendant No.4 guaranteed all payments thereunder. f) In terms of the said charter the defendant No.2 paid to the plaintiff the first three instalments of the semi-monthly hire till the said vessel completed loading. The defendants collected freight from the shippers and issued bills of lading. Thereafter the defendants refused to pay to the plaintiff further rent or charter hire. The defendants committed various breach of faith and trust in London and other palaces outside the jurisdiction of this court. The defendants collected freight from the shippers and issued bills of lading. Thereafter the defendants refused to pay to the plaintiff further rent or charter hire. The defendants committed various breach of faith and trust in London and other palaces outside the jurisdiction of this court. g) There is due and owing by the defendants to the plaintiff Rs. 45,70,543.60 on account of unpaid rent for charter hire as also cost of bunkers etc. h) In order to defeat the claims of the plaintiff and other creditors the defendants, who own other vessels, have been disposing of the same as scrap. The defendant have been avoiding their regular ports of call in India and Europe and are in the process of closing their entire shipping operation. i) Saudi Luck is a vessel belonging to the defendants nominally owned and operated by the defendant No. 5. j) Saudi Luck arrived at the Port of Calcutta on or about the 8th July 1984 and was expected to complete discharge of her cargo and leave the Port on the 21st July 1984. k) The defendants have been making serious efforts to sell the said vessel Saudi Luck for scrap. l) The local agents of the defendants in Bombay, M/s Sai Shipping co. Private Ltd. have caused the said vessel Saudi Luck to be arrested in a suit filed by them in the High Court of Bombay being Admiralty Suit No. 26 of 1984 for recovery of their dues. The arrest has been made on a warrant issued in the said suit on the 12th July 1984. m) Another vessel of the defendant Saudi Ali Jubali has been arrested in Singapore at the instance of her officers and crew for non-payment of wages. n) The defendants are carrying on business through their agent Capstan Shipping Enterprise Private Limited at Calcutta within the Original Jurisdiction of this Court. m) Another vessel of the defendant Saudi Ali Jubali has been arrested in Singapore at the instance of her officers and crew for non-payment of wages. n) The defendants are carrying on business through their agent Capstan Shipping Enterprise Private Limited at Calcutta within the Original Jurisdiction of this Court. o) Cargo booking, is accepted and freight is received by the vessels of the defendants Customs clearance effected and other formalities are complied with, and claims preferred again at the defendants are entertained and settled at the office of the said agent at Calcutta which is a permanent office of the defendants for their shipping business p) The plaintiff's demand in this suit was received by or on behalf of the defendants at the said office q) The defendants have committed breach of their agreement by nonpayment of the dues of the plaintiff at Calcutta within the said jurisdiction at the said office. 4. On or about the 30th July 1983 the defendants made an application in the suit for the following orders: a) The Leave granted under clause 12 of the Letters Patent in this suit be revoked b) 'The' suit be dismissed. c) Stay of the suit and all proceedings thereunder permanently. d) The order dated the 21st July 1984 passed in the suit be vacated. 5. In their application, the defendants contended inter aha, that no part of the plaintiff's Cause of action arose or could arise within the jurisdiction of this Court. The plaintiff, it was contended, falsely alleged breach of the said charter party at Calcutta. The plaintiff itself is proceeding in arbitration at London for the adjudication of the disputes between the parties. No transaction between the parties, it was contended, took place or could have taken place within the jurisdiction of this Court and the balance of convenience was overwhelmingly in favour of the suit not being fried in Calcutta. If the suit was continued in Calcutta, the defendants, it was contended, would be seriously and irreparably prejudiced It was alleged that the entire evidence of the defendants to be adduced in defence to the claim of the plaintiff in this suit was outside India and that all the witnesses of the defendants were also outside India. If the suit was continued in Calcutta, the defendants, it was contended, would be seriously and irreparably prejudiced It was alleged that the entire evidence of the defendants to be adduced in defence to the claim of the plaintiff in this suit was outside India and that all the witnesses of the defendants were also outside India. 6 It was contended that the suit had been filed mala fide and with an ulterior motive with the sole object of putting pressure on the defendants by proceeding against them at Clacutta. 7. It was contended that the plaintiff having referred the matter to arbitration in London should not be permitted to proceed further with the suit which should be stayed on the ground alone. The arbitration proceedings pending in London was a foreign arbitration and this Court should stay the suit under the provisions of the English Arbitration Act, 1975 or under the Foreign Award (Recognition and Enforcement) Act, 1961. 8. Dilip Kumar Chatterjee, the constituted attorney of the plaintiff, affirmed an affidavit on the 4th August, 1984, which was filed in opposition to the petition of the defendants in their said application. It was contended in this affidavit, inter alia, that no leave under clause 12 of the Letter Patent was obtained or granted for filing the suit and as such there was no question of revocation of such leave or stay of the suit thereon. The application of the defendant, it was contended, was not made under any Arbitration Act. 9. It was contended further that the defendants have submitted to the jurisdiction of this Court unconditionally by having appeared in the suit through Advocate on the 24th July 1984 having obtained a variation of the interim order passed in the suit, having taken directions for filing of affidavit in the application of the plaintiff and having consented to the continuance of the order of injunction made on the 21st July 1984 till the disposal of the said application of the plaintiff. The defendants, it is alleged have taken advantage of the proceedings in the suit and instead of filing affidavits in the application of the plaintiff have come up with the present application. 10. The defendants, it is alleged have taken advantage of the proceedings in the suit and instead of filing affidavits in the application of the plaintiff have come up with the present application. 10. It is alleged that the defendants have not submitted to the arbitration proceeding in London and therefore cannot claim the benefit of the provision of the Foreign Award (Recognition 3rd Enforcement) Act or the English Arbitration Act or the Arbitration Act, 1940. The present application, it is contended, had been filed without any reservation or protest and the defendants have taken steps in the suit and as such they are not entitled to the reliefs claimed. It is contended that, in any event, only the defendant No.2 is a party to the arbitration agreement and therefore the petition by all the defendants was not tenable. 11. It is alleged that the defendant No.4 had instructed the Capstan Shippng Enterprise Private Limited, the agent of the defendants at Calcutta to Canvass for cargo to be shipped from Calcutta to Taiwan. Under the standard agency from the defendant No 4, the agent at Calcutta would he required to canvass booking of cargo, receive cargo shipment, issue freight documents, forward statement of accounts and attend to al1 c1aims und disputes. 12. It was contended that if the suit was tried at Calcutta the defendant No 7 would he prevented from defrauding the plaintiff. It was contended that the fact that the witnesses were outside India was irrelevant and could not be considered at this stage. The defendants, it was alleged, have not disputed the claim of the plaintiff. 13. Mohamed Shafiq Bhora, the General Manager of Sai Shipping Co. (Private) Ltd. affirmed an affidavit on the 1st August 1984 which was filed in support of the plaintiff's case It was alleged in this affidavit that Sai Shipping Co Private Ltd of Bombay was appointed as the agents of the said vessel Saudi Luck under an agreement signed by the defendant No.4. It was alleged further that the defendants have been carrying on business in the Indian Ports including Calcutta. The defendants it was alleged, brought their vessels to the Indian ports to discharge imperiled cargo and they also loaded cargo in their vessels from the Indian ports and earn freight. 14. One Andreas Metaxes, an authorised representative of the defendant No.5. It was alleged further that the defendants have been carrying on business in the Indian Ports including Calcutta. The defendants it was alleged, brought their vessels to the Indian ports to discharge imperiled cargo and they also loaded cargo in their vessels from the Indian ports and earn freight. 14. One Andreas Metaxes, an authorised representative of the defendant No.5. affirmed an affidavit on the 6th August 1984 which was filed in reply to the aforesaid affidavit of Dilip Kumar Chatterjee It was alleged in this affidavit that the defendant No.5 is not a proprietary concern and that it did not carryon any business in Calcutta. It was alleged further that there has been no transaction between the defendant No. 5 and the plaintiff and that the later had no claim against the defendant no 5. 15. It is alleged that the arbitrator has passed an ex parte interim award on the 16th July 1984 in favour of the plaintiff in London and this fact had been deliberately suppressed by the plaintiff in this suit. 16. It was contended that the natural forurn of the suit was not Calcutta and continuance of the suit in this Court would result In injustice to the defendants The plaintiff who was located in Cyprus would not suffer any prejudice if this suit was not tried in Calcutta It was alleged that the Capstan Shipping Enterprises Private Limited was the protecting agent of the said vessel Saudi Luck and that they had worked in no other capacity. It was alleged that no agreement of agency in respect of the said vessel Saudi Luck had been entered into with the said Capstan Shipping Enterprise Private Limited or any other person at Calcutta. 17. It was alleged that, at the material time, the said vessel Saudi Luck had been berthed at No. 3, Netaji Subhas Dock, Kidderpore outside the original jurisdiction of this Court and was scheduled for its outward journey on ballast. Cargo carried by the said vessel was unloaded by M/s. Balai Lal Mukherjee & Co., the stevedoring agent of the charterer who also filed the import manifest and paid the import duty. No documents were filed on behalf of the defendants as required in law for all foreign companies to carry on business in India. 18. Cargo carried by the said vessel was unloaded by M/s. Balai Lal Mukherjee & Co., the stevedoring agent of the charterer who also filed the import manifest and paid the import duty. No documents were filed on behalf of the defendants as required in law for all foreign companies to carry on business in India. 18. Sree Gopal Chakravarti, the Operation Manager of the Capstan Shipping Enterprises Private Limited affirmed and affidavit on the 13th August 1984 which was filed in support of the application of the defendants. It was alleged in this affidavit that on or about the 9th July 1984 the defendant no. 6 requested, the Capstan Shipping Enterprise Private Limited to act as a protecting agent of the vessel Saudi Luck while at the Port of Calcutta. The said vessel had discharged a cargo of fertilizers the consignee of which was the Government of India and/or the Minerals and Metals Trading Corporation of India Limited. The said vessel, it was alleged, was not going to load further cargo at Calcutta. The Capstan Shipping Enterprise Private Limited, It was alleged, was not concerned with the said vessel in any way except to make arrangement for her sailing and providing for her requirements as her protecting agent and that Capstan Shipping Enterprise Private Limited never had any other transaction with any of the defendants. 19. It is denied that any of the defendants carry on business at the office of the Capstan Shipping Enterprise Private Limited at Calcutta. It is alleged that the defendants did not obtain any approval from or sanction of the Reserve Bank of India under the Foreign Exchange Regulation Act, 1973 to carry on business in India. 20. By a judgment and order dated the 8th August 1984 the application of the defendants was dismissed. The present appeal against the said order of dismissal has been preferred by the defendant No.5. 21. It has been held in the judgment under appeal that the defendants have to proceed on the basis that the allegations in the plaint have to be accepted as correct. There were no averments in the plaint on which the same could be rejected under Rule 11 of the Order VII of the Code of Civil Procedure. 21. It has been held in the judgment under appeal that the defendants have to proceed on the basis that the allegations in the plaint have to be accepted as correct. There were no averments in the plaint on which the same could be rejected under Rule 11 of the Order VII of the Code of Civil Procedure. It has also been held that in the facts and circumstances the filing of the suit in this court by the plaintiff did not amount to an abuse of the process of Court nor was the suit harrasive. It was held further that the balance of convenience was in favour of the plaintiff, who was succeeded in justifying that its choice of forum was reasonable. Weighing the advantage in favour of the plaintiff with the disadvantage of the defendants it was held that the defendants were not entitled to a stay of the suit. 22. At the hearing of this appeal, learned Counsel for the defendant No 5, the appellant, submitted that in respect of the same cause of action the plaintiff has instituted proceedings also in Singapore and had caused arrest of another vessel alleged to belong to the appellant An order of sale of the said vessel has since been passed. The appellant admittedly carries on business in Saudi Arabia and in Greece both outside the jurisdiction of this Court No cargo had ever been booked by any of the defendants at Calcutta. The vessel Saudi Luck arrived and berthed at the Kidderpore Docks Calcutta a1so outside the original jurisdiction of this Court only to discharge some cargo and it was intended that the vessel would sail out on ballast No cargo was booked or invited for the said vessel Saudi Luck on its out ward journey The Capstan Shipping Enterprise Private Limited, it was submitted, was only the protecting agent of the said vessel and nothing more. The said vessel was not declared by the said protecting agent for its entry nor did the said agents file any import general manifest or had any thing to do with the discharge of the cargo. 23. It was submitted further that the connection of the suit with this court was tenuous and that this Court was not the natural forum for trial of the suit. 23. It was submitted further that the connection of the suit with this court was tenuous and that this Court was not the natural forum for trial of the suit. In the premises this Court had jurisdiction to stay or strike out the suit and in the facts and circumstances such power was required to be exercised. 24. It was next submitted that the plaintiff had been pursuing its one cause of action in separate proceedings in different parts of the world to harass the defendants and should not he permitted to harass them further by proceeding with this suit. 25. In the activity of carrying on business, it was submitted, there is an element of continuity and repetition. The fact that a single vessel belonging to one of the defendants was at Calcutta cannot lead to the conclusion that the defendants were carrying on business at Calcutta. In support of his contention learned counsel for tile appellant cited the following passage from Dicey and Morris ‘Conflict of Laws’ 10th edition Volume I at page 251 : "The mere fact that the some plaintiff starts proceeding against the same defendant in respect of the same transaction in England and in a foreign country is not a ground for staying the English proceedings or restraining the foreign proceedings In order to justify a stay, the defendant must show that continuance of the proceedings will cause him injustice and a stay will not cause injustice to the plaintiff, and mere multiplicity of suits is not sufficient to justify a stay. The plaintiff may for instance be entitled to one remedy in the foreign country and to a different remedy in England, or the foreign judgement may be enforceable against some of the defendants only, and the English judgement against others, or the plaintiff may not know, when he starts the two actions which one can be more easily pressed to judgement. But it is not likely, since the decision of the House of Lords in the Atlanitic Star and Mac. Shannon v. Rckwars Glass Ltd., that the court will allow, except in very unusual circumstances, the continuance of proceedings by the same plaintiff against the same defendant for the same cause of action in the different jurisdiction”. Learned Counsel for the defendant No.1 also cited. Shannon v. Rckwars Glass Ltd., that the court will allow, except in very unusual circumstances, the continuance of proceedings by the same plaintiff against the same defendant for the same cause of action in the different jurisdiction”. Learned Counsel for the defendant No.1 also cited. : - (a) Hansraj Bajaj v. The Indian Overseas Bank Ltd. reported in AIR 1956 Cal 33 . In this case a suit was filed in this Court against the defendant Bank which has its head office at Calcutta within jurisdiction of this court alleging that a demand draft issued by the penang Branch of the Bank had been wrongly cancelled and that the proceeds thereof had been wrongfully credited to some other account. The Bank applied in the suit for an injunction restraining the plaintiff from proceeding with the suit and for stay of further proceedings therein, contending that no part of the suit arose within the jurisdiction of this Court and that the transaction was had outside the country. P.B. Mukharji, J. as his Lordship then was, stayed the suit and all proceedings thereunder. It was observed in the judgment as follows : - “In other words, the jurisdiction to stay an otherwise competent suit is to be exercised only for the ends of justice or to prevent abuse of the process of the Court. This view is well settled and supported by such authorities in India as…….” “This jurisdiction is to be sparingly exercised and within the strict limits of rigorous conditions, whose principles may now be clearly stated. The Courts have evolved certain well-defined principles to guide their decision on this point. The first principle is that a mere balance of convenience is not a sufficient ground for depriving a plaintiff of his right of prosecuting his action in or his right of access to the competent Courts of the land” “The second principle is that Court stays an action brought within the jurisdiction in respect of because of action arising entirely out of the jurisdiction when it is satisfied that the plaintiff will thereby suffer no injustice whereas if the action is continued the defendant will, in defending the action, be the victim of such injustice as to amount to vexation and oppression and which vexation and oppression would not arise for the defendant if the action were brought in another assessable Court where the cause of action arose……….. In such a case the Courts have also insisted that the onus is upon the defendant to satisfy the Court, first that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be abuse of the process of the Court, and, secondly, also that the stay will not cause any injustice to the plaintiff" (b) Mac Shannon v. Rockware Glass Ltd reported in 1978 (1) All. ER 626 In this case the plaintiff a resident of Scotland, was employed by the "defendant, a company registered in England, at the factory of the latter located in Scotland. The plaintiff suffered injuries in an accident which occurred at the factory and on legal advice the plaintiff brought an action for damages against the defendant in England It was thought that the Proceeding in England would be likely to be disposed of quicker and less expensive and that the plaintiff had chance of obtaining higher damages and cost. The defendant applied for stay of the action in England contending, inter alia that there was no reasonable justification for the action to continue in England. The Scottish Court was the natural forum and that, if the action was proceeded with in England the defendant would suffer serious inconvenience and incur additional expenses The application was dismissed in the first Court. The order of dismissal was affirmed by a majority in the Court of Appeal. The defendants preferred a further appeal to the House of Lards. The House of Lords allowed the appeal of the defendants. The following principles were laid down by the Law Lords : Lord Diplock : "In order to justify a stay two conditions must be satisfied one positive and the other negative, (a) the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parries at substantially less inconvenience or expense, and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English Court.” The advantage that is relied on as a ground for diverting the acting from its natural forum must be shown objectively and on the balance of probability to exist" Lord Salmon : "In an action brought in England when its natural forum is Scotland. I consider the question as to whether it should be stayed depends on whether the defendant can establish that to refuse a stay would produce injustice Clearly if the trial of the action in England would afford the Scottish Plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay. If, on the other hand, a trial in England would offer the plaintiff some Teal personal advantage e. g if he had come to live in England, a balance would have to be struck and the court might in its dissolution consider that justice demanded that the trial should be allowed to proceed in England." Lord Keith :- ".... .... .... .... where a defendant seeks a stay of proceedings on the ground that the action can and should be prosecuted elsewhere, he must show good reason why the Court's discretion should be exercised in his favour. He must satisfy the court that the continuance of the action would work in injustice because it would be oppressive or vexatious to him or would be an abuse of the Court in some other way, that expression being understood in a broad and reasonable sense and without any necessary moral connotations, and also that the stay would not cause an injustice to the plaintiffs, where England is .the natural forum for the action, in the sense of being that with which the action has the most real and substantial connection, it is necessary for the defendant in order to establish injustice to him and no injustice to the plaintiff, to show some very serious disadvangages to him which substantially outweighs may advantage to the plaintiff Where however, the defendant shows that England is oat the natural forum and that If the action were continued there he would be involved in substantial (i e. more than do minimis) inconvenience and unnecessary expense, or in some other disadvantages, which would not affect him in the natural forum, he has made out a prima facie case for a stay, and if noting follows it may properly be granted The plaintiff may, however, seek to show some reasonable justification for his choice of forum in the shape of advantage to him. If he succeeds it becomes necessary to weigh against each other the advantages to the plaintiff and that disadvantages to the defendant and a stay will not be granted unless the court concludes that to refuse it would involve injustice to the defendant and no injustice to the plaintiff. (c) An unreported judgement dated the 11th May 1979 in Appeal No. 415 of 1975 intituled Warren Tea Co. Ltd. v. Bhawani Sunkar Bagaria. In this case, a suit was filed against the defendant with leave under clause 12 of the Letters Patent for money decree and alternatively accounts. The cause of action of the plaintiff as appearing from the plaint was inter alia that the plaintiff by an agreement in writing had appointed the defendant as an agent to supply foodgrains allotted from Government sources for consumption of workers of certain tea estate of the plaintiffs, outside the jurisdiction of this Court. The agreement provided, inter alia, that the said agreement would be subject to Dibrugarh jurisdiction. Pursuant to the agreement moneys were advanced by the plaintiff to the defendants against supply of foodgrains made by the defendant to the tea estates from time to time. The defendant applied for stay of the suit and the proceedings thereunder and also for revocation of leave granted under clause 12 of the Letters Patent contending, inter alia, that no part of the cause of action of the plaintiffs arose within the jurisdiction of the Court, the Dibrugarh Court was the agreed forum and that the suit was in abuse of the process the Court. The application succeeded in the first Court 'Where the suit was directed to be stayed permanently and leave granted under clause 12 of the Letters patent was directed to be revoked. On appeal by the plaintiffs a Division Bench of this Court presided over by A N. Sen, J. as his lordship then was, upheld the order of the first Court. A number of decisions of Indian Courts as also those of English Courts were considered and certain basic principles were laid down for the guidance of the Court for exercising its discretion in such cases. (d) "The Abidin Daver" reported in 1984 (2) WLR 196 The facts in this case were in March 1982 a collision occurred in the Bosphorus between two ships one of which was a Cuban Vessel. The other one was Turkish Vessel. (d) "The Abidin Daver" reported in 1984 (2) WLR 196 The facts in this case were in March 1982 a collision occurred in the Bosphorus between two ships one of which was a Cuban Vessel. The other one was Turkish Vessel. A suit was instituted by the Turkish ship owners in the Turkish Court in April 1982 and another ship belonging to the owners of the Cuban Vessel involved in the accident was arrested in the said action. The Cuban ship-owners obtained release of their vessel after putting up security. In July 1982, during the pendency of the proceeding in the Turkish Court the Cuban shipowners took advantage of the presence in England of another ship belonging to the Turkish ship owners. They commenced action in rem against the Turkish shipowners in England and caused an arrest of be effected of the said Turkish ship. The Turkish vessel arrested was also released on security. The Turkish shipowners, the defendants, in the English action moved to stay the English proceedings It was held by the first Court that the Turkish Court was the forum in which justice could be done between the parties at substantially less inconvenience and expenses and that such a stay would not deprive the plaintiff of any legitimate personal or juridical advantage The English action was defected to be stayed An appeal by the Cuban ship owners was alleged by the Court of Appeal. The Turkish patty preferred a further appeal to the House of Lords The House of Lords allowed the appeal. The Turkish patty preferred a further appeal to the House of Lords The House of Lords allowed the appeal. The relevant observations of the Law Lords as stated were as follows : "Where a suit about a particular subject matter between a plaintiff and a defendant is already pending in a foreign Court which is natural and appropriate forum for the resolution of the dispute between them, and the defendant in the foreign suit seeks to institute as plaintiff an action in England about the same matter to which the person who is plaintiff in the foreign suit is made defendant, then the addition d inconvenience and expenses which must result from allowing two sets of legal proceedings to be pursued concurrently in two different countries where the same Lots will be in issue and the testimony of the some witnesses required, can only be justified if the would be plaintiff can establish objectively by cogent evidence that there is some personal or juridical advantage that would be available to him only in the English action that is of such importance that it would cause injustice to him to deprive him of it. Quite apart from the additional inconvenience and expense, if the two actions are allowed to proceed concurrently in the two jurisdictions the courts of the two countries may reach conflicting decisions. “…………. Novel problems relating to estoppel per rem judicatam and issue estoppel, which have not hitherto been examined by any English Court, might also arise. Comity demands that such a situation should not be permitted to occur as between courts of two civilized and friendly states It is a recipe for confusion and injustice” Lord Templeman – “There is ample scope for a litigant to choose the exercise of English jurisdiction of which Sri John Donaldson M.R. is justly proud, notwithstanding that proceedings have already been institued under a foreign jurisdiction provided that the events which happen prior to the hearing of an application for a stay of the English proceedings do not demonstrate that the foreign forum is to be preferred on grounds of convenience and expense. An ugly rush to get one action decided ahead of the other is not to be replaced by an ugly rush to issue proceedings in one country before the issue of proceedings in another” “………….. An ugly rush to get one action decided ahead of the other is not to be replaced by an ugly rush to issue proceedings in one country before the issue of proceedings in another” “………….. There was no justification for inflicting English proceedings on the Turkish owners in addition to the Turkish proceedings.” 26. Learned Counsel for the plaintiff submitted on the other hand that the prayer of the appellant for revocation of leave under Clause 12 of the Letters Patent was misconceived as no such leave had been obtained by the plaintiff in filing the suit. Such a relief could not be granted to the plaintiff It was submitted further that it cannot be demonstrated from the plaint that the suit was barred by any law. As such the suit could not be dismissed under Rule 11 of Order VII of the Civil Procedure Code, and on the specific averments in the plaint jurisdiction of this Court of entertain and try this suit has been established prima facie. 27. Learned Counsel next submitted that to be entitled to stay of a proceeding on the ground of balance of convenience, it was necessary for the party claiming such stay to plead and prove that a Court other than the Court where the proceeding had been instituted was a more convenient forum It was not enough to urge that the Court where the proceeding Were pending was not a convenient forum. The defendants in the instant case has not been able to establish that apart from this Court there was any other Court where the suit could be tried more conveniently. The defendants carried out business throughout the worked. After serious efforts the plaintiff has been able to locate a vessel belonging to the defendants within the jurisdiction of this Court and the vessel left such jurisdiction the plaintiff will be seriously prejudiced and will not be able to realise its huge claim. The balance of convenience and interest of justice was therefore in favour of the plaintiff. 28 Learned Counsel submitted next that in the peculiar facts and circumstances of this case the natural forum theory had no application or alternatively, the natural forum was that where the properly protected against was situated. 29. The balance of convenience and interest of justice was therefore in favour of the plaintiff. 28 Learned Counsel submitted next that in the peculiar facts and circumstances of this case the natural forum theory had no application or alternatively, the natural forum was that where the properly protected against was situated. 29. The plaintiff, it was submitted, has the right to choose its own forum and particularly so in a case where there Was no chosen or agreed forum. The plaintiff in the facts had reasonable justification to choose this court as its forum. It was submitted that the suit should not be stayed on the ground that arbitration was pending in London and an interim award had been made in the arbitration. The defendants had not applied for stay of the suit under the Arbitration Act, 1940 or the Foreign Award (Recognition and Enforcement) Act, 1961. 30. It was submitted last that there were no grounds on which this Court should exercise its inherent jurisdiction and discretionary power to stay this suit. This order under appeal ought not to be interfered with inasmuch as discretion has been exercised by the first Court in favour of the plaintiff and It was not shown that such discretion was exercised unreasonably capriciously or perversely. 31. In support of his contentions learned Counsel for the plaintiff cited Ruttonjee Jeevandas v. Indo China Steam Navigation Co. Ltd reported in 99 CLJ 95 In this Case it was held by G K. Mitter. J, as his Lordship then was, that where vessels of a foreign shipping company regularly called at Calcutta, unloaded cargo and took fresh cargo, where correspondence for import and export of cargo were carried on by the local agents, of the shipping company operating within the jurisdiction of this Court who were authorized to obtain delivery of goods, to issue Bills of Lading and accept services of process and defend suits, the shipping company was carrying on business in Calcutta within the jurisdiction. 12. To appreciate the controversies raised before us the following facts which are admitted or are matters of record have to be kept in mind. The plaintiff is a non-resident company incorporated in Cyprus. The defendant No. 1 is an individual ordinarily residing in Saudi Arabia. The other defendants are all non-resident companies or corporation incorporated in countries outside India. 33. To appreciate the controversies raised before us the following facts which are admitted or are matters of record have to be kept in mind. The plaintiff is a non-resident company incorporated in Cyprus. The defendant No. 1 is an individual ordinarily residing in Saudi Arabia. The other defendants are all non-resident companies or corporation incorporated in countries outside India. 33. The suit before us is a suit for recovery of money payable under a charter party. It is on record that the plaintiff initiated proceeding in arbitration to realise its claim on the same cause of action before an Arbitrator in London. An interim Award has already been passed in favour of the plaintiff in the arbitration proceeding. The plaintiff has instituted other proceeding in Singapore where another vessel stated to belong to the defendant No.1 has been arrested. The plaintiff did not obtain any leave under clause 12 of the Letters Patent to institute this suit in this Court. The Jurisdiction of this Court has been sought to be invoked by the plaintiff on the sole ground that the defendants carryon business within the Jurisdiction of this Court through their local agent in Calcutta. 34 The question whether a suit which has been prima facie filed before a competent court ought to be stayed or not in the interest of justice has C0me up before the Courts in India and law has been laid down. 35. It is now well settled both in English Law and the law of this country that in appropriate Case Court has inherent power to slay an action or a suit before it for the ends of justice or to prevent abuse of the process of Court. Such inherent jurisdiction is exercised in India under S.151 of the Code of Civil Procedure. 36. The principles laid down in Hansraj Bajaj (supra) that the court can exercise its inherent power and jurisdiction to stay an otherwise competent suit for ends of justice was affirmed by the Supreme Court in Monoharlal v. Seth Hirelal reported in AIR 1962 SC 527 where it was observed that if it was absolutely essential for the ends of justice an order Could be passed restraining a party from proceeding with a suit in a competent court but that such power Should be exercised with great care and Consideration. 37 One of the factors which the Court has to take into account in such Cases is whether the Court in which the suit has been instituted is the natural forum for the action, that is, the suit has the most real and substantial connection with the Court. 38. If It is found that the suit has been instituted in a Court which is the natural forum, the suit can only be stayed only if the defendant can establish that extremely serious disadvantage would be caused to him without corresponding injustice to the plaintiff or where no injustice would be caused to the plaintiff. 39. Where the suit is instituted in a Court which is not the natural forum and it is found that the continuance of the proceeding would Cause substantial inconvenience and disadvantage to the defendant in the shape of unnecessary expenses or harassment which may not be caused to the defendant in some other court, the plaintiff must offer a reasonable justification for his choice of forum in the shape of an advantage: to him personal, juridical or otherwise. In the absence of such justification the suit would be stayed. 40. A mere balance of convenience however is not a sufficient ground for depriving the plaintiff of his right to proceed with his suit in a competent court. 41. We venture to lay down further that is would also be a relevant factor for the court to consider whether proceedings are pending in any foreign court or tribunal on the same cause of action involved in the suit before a Court of India. 42. In the facts of the instant case the dispute between the parties have arisen under a charter party whereby the vessel involved was let out by the plaintiff to the defendant No.2 for a trip from Spain to the Arabian Gulf. 43. It cannot be said that the transactions between the parties which have resulted in the disputes have any nexus or cc1nnection with this Court The conclusion is inevitable that this Court is not the natural forum for this notion. This suit has not and could not have been filed in the Admiralty Jurisdiction of this Court. Such action being an action in rem would have made this Court the natural furum and the question of balance of convenience would have been of little moment. 44. This suit has not and could not have been filed in the Admiralty Jurisdiction of this Court. Such action being an action in rem would have made this Court the natural furum and the question of balance of convenience would have been of little moment. 44. This suit, however, is a suit of recovery of money payable under a charter party The jurisdiction of this Court bas been invoked by the plaintiff on the basis of that the defendants carrying on business within such jurisdiction. In our view such invocation is rather tenuous. 45. Serious disputes have been raised as to whether the defendants carry on any business within the jurisdiction and if the suit is proceeded with, possibly the same will be an issue to be tried. 46. At this stage, even if it be held that the Court will proceed on the basis that the allegations in the plaint are correct, it still has to be decided whether the continuance of this suit in this court would cause serious difficulty and extreme inconvenience and harassment to the defendant causing injustice and would amount to an abuse of process of this Court. 47. The plaintiff has sought to justify the initiation and continuation of this suit in this Court on the grounds, inter alia, that if the suit is tried here the defendant No. 1 will be prevented from defrauding the plaintiff, that the Plaintiff's claim in this suit is undisputed and that a vessel belonging to the defendants is in Calcutta within the jurisdiction of this Court. 48. We ale unable to accept the contention of the plaintiff. The fact that a particular property of the defendant is within the jurisdiction of this Court, (which is also a matter of dispute as the vessel dooked in a part of the inland water surrounding Calcutta not within the original jurisdiction of this Court) will be of little relevance. Actions cannot always follow ships that pass by the night. 49. The allegations of fraud against the defendant will also be of no relevance so far as the points in controversy are concerned. Fraud has to be established and proved and allegations of fraud will not by themselves be germane to the question whether a particular suit will be tried in a particular court or not. 50. 49. The allegations of fraud against the defendant will also be of no relevance so far as the points in controversy are concerned. Fraud has to be established and proved and allegations of fraud will not by themselves be germane to the question whether a particular suit will be tried in a particular court or not. 50. From the facts it appears that all evidence to be adduced in this suit both oral and documentary, which necessarily relate to the charter party and the alleged breach thereof by the defendants are all outside India and would also be required to be adduced in the pending foreign actions if the same are proceeded with. This would cause further harassment to the defendants if they want to defend such action. It also appears that the plaintiff cannot get any particular advantage in proceeding with the suit before this Court in the hearing or disposal thereof 51. In our view discretion has been exercised by the first Court in favour of the plaintiff on grounds' which are not relevant and the grounds which have been considered have not been considered in their proper perspective The learned Judge in the first Court did not at all consider the prayer of the defendant that this suit should be stayed. 52. It was observed by the Supreme Court in the Printers (Mysore) Pvt. Ltd. vs. Pothom Joseph reported in AIR 1960 SC 1156 : "........it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unmusical approach then it would certainly be open to the appellate court-and in many cases it may he its duty to interfere with the trial court's exercise of discretion. In Cases falling under this class the exercise of discretion by the trial court is in law wrongful and improper and that would certainly justify and call for interference from the appellate Court." The above case was referred to and relied on in Warren Tea Co. Ltd (supra). 53. We hold that the appellant has succeeded in establishing that the continuation of this suit in this court which is not the natural forum would cause injustice and would be oppressive and vexatious to the defendants. Ltd (supra). 53. We hold that the appellant has succeeded in establishing that the continuation of this suit in this court which is not the natural forum would cause injustice and would be oppressive and vexatious to the defendants. We held further that the continuation of this suit in this Court would be an abuse of the process of court. We find that the stay of this suit would not cause any or any particular inconvenience or injustice to the plaintiff. 54. For the reasons above, the appeal is allowed. There will be an order directing stay of the suit and all proceedings thereunder. In the facts and circumstances of this case there will be no order as to costs. Suhas Chandra Sen, J : 1 agree Appeal allowed.