JUDGMENT - Dr. PRATIBHA UPASANI, J.:---This Chamber Summons is taken out by the defendants praying that the leave granted under Clause XII of the Letters Patent to the plaintiffs to file this suit in this Court, be revoked, and necessary appropriate order be passed for return/rejection of the plaint. The suit is filed by the plaintiffs against the defendants for reliefs praying inter alia for declaration that the plaintiff was and continues to be the owner of the generator-set described at Exhibit A to the plaint, and that, defendants be ordered and decreed to pay to the plaintiffs a sum of Rs. 1,78,81,225/- as per the particulars of claim (Exhibit G) to the plaint, together with interest at the rate specified in prayer Clause (b) of the plaint, and that, the defendants be ordered to pay to the plaintiffs, compensation at the rate of Rs. 3.5 lakhs per month from the date of the suit till the date of the return of the said generator-set and that, the defendants be ordered and decreed to forthwith return to the plaintiffs, the said generator-set. 2. The plaintiffs' case as disclosed from the averments made in the plaint is that they are the partnership firm, duly registered with the Registrar of Firms and carry on business of supply and hire of A.C. and D.C. Generators, Diesel Welding Generators and Rectifiers, and that, they carry on business in the name and style of New Bharat Engineering Works at Bombay. The defendant Company namely, M/s. Jagson International Limited is a public limited company, having its registered office at New Delhi. They also have another office at Egmore, Madras. 3. It is the case of the plaintiffs that defendants require a diesel generator set to be installed at Madras for their business purpose which the plaintiffs agreed to supply. There was an agreement to that effect entered into between the plaintiffs and the defendants dated 29th September, 1993, which was executed at Bombay. The plaintiffs were assured by the defendants that the hire charges would be paid at Bombay by the defendants at the beginning of every English Calender Month. The terms and conditions accordingly, were recorded in the said agreement dated 29-9-1993, copy of which is annexed as Exhibit B to the plaint. The plaintiffs" case further is that they were to be paid Rs. The terms and conditions accordingly, were recorded in the said agreement dated 29-9-1993, copy of which is annexed as Exhibit B to the plaint. The plaintiffs" case further is that they were to be paid Rs. 3.5 lakhs per month as hire charges for the use of the said generator set, and that, an advance of Rs. 3.5 lakhs had to be paid at Bombay and accordingly, the defendants remitted a demand draft No. 115337 dated 29-10-1993 in acceptance of contract dated 27-09-1993 vide letter dated 02-11-1993. Exhibit C annexed to the plaint is the copy of the said letter dated 02-11-1993. Generator-set was installed by the representative of the plaintiffs at the site, as required by the defendants. However, there were defaults from the plaintiffs as far as the payment of hire charges were concerned and hence, the suit for the above mentioned reliefs. The plaintiffs obtained leave under Clause XII of the Letters Patent. 4. The defendants have now approached the Court vide this Chamber Summons praying that the said leave obtained by the plaintiffs under Clause XII of the Letters Patent be revoked. It is the allegation of the defendants that no cause of action whatsoever arose within the jurisdiction of this Court entitling it to entertain and try the suit. It is submitted by the defendants that incorrect and misleading statements were made by the plaintiffs in their plaint, so as to obtain the leave under Clause XII of the Letters Patent. 5. Mr. Palkhiwala, appearing for the defendants submitted that the agreement dated 29-09-1993 was executed by the parties not at Bombay, but at Madras. In support of this statement, he stated that the persons whose names were mentioned as witnesses at the foot of the Agreement, were one Mr. Balakrishnan, who was the Steno working at the office of the defendants at Madras, and that, other witness Mr. R.P. Sharma, who was a Purchase Manager of defendants, posted at defendants' Branch Office at Madras, and that, this clearly shows that the said document was executed at Madras in the presence of these two witnesses. 6. It is further submitted by Mr. R.P. Sharma, who was a Purchase Manager of defendants, posted at defendants' Branch Office at Madras, and that, this clearly shows that the said document was executed at Madras in the presence of these two witnesses. 6. It is further submitted by Mr. Palkhiwala for defendants, that assuming that an insignificant or small part of the cause of action has in fact arisen in Bombay, no material cause of action has arisen in Bombay and therefore, it would be the Madras Court which would have jurisdiction to entertain and try the suit, and that, balance of convenience is to be looked into because defendants are based at Madras, the witnesses would be from Madras and the generator-set which is the subject matter of the agreement is also at Madras. It is submitted by him that the Court cannot ignore the balance of convenience, if it comes to the conclusion that no cause of action has arisen at Bombay. According to the defendants, leave under Clause XII of the Letters Patent was granted only because of the misleading statement made in the plaint and hence, the said leave has to be revoked by the Court. 7. Mr. Shah, appearing for the plaintiffs, on the other hand, drew my attention to the petition for leave under Clause XII of the Letters Patent and Exhibit A annexed to the said petition. 8. Exhibit A annexed to the said petition, is a letter written by the defendants to the plaintiffs dated 02-11-1993. Copy of the very same letter is also annexed as Exhibit C to the plaint. The first para of this letter reads as follows: "Please refer our agreement dated 29th September, 1993 for hiring D-399 Emergency Caterpillar Generator from you. We are sending Mr. P.I. Jaison along with our Chief Engineer for taking delivery of D-399 Engine from you." 9. Highlighting this paragraph, which is from the letter of defendants themselves, Mr. Shah for plaintiffs argued that this letter discloses that the defendants sent their two persons from Madras to Bombay for taking delivery of the said generator from the plaintiffs, whose office, admittedly, is in Bombay. He said that it has got two-fold significance. Firstly, that the delivery of the said generator was given at Bombay and not at Madras, and therefore, part of the cause of action did arise at Bombay. He said that it has got two-fold significance. Firstly, that the delivery of the said generator was given at Bombay and not at Madras, and therefore, part of the cause of action did arise at Bombay. Secondly, he argued, that if the defendants could send two persons to Bombay from Madras for taking delivery of the said generator, it was not inconceivable that they sent two persons namely, Mr. Balkrishnan and Mr. Sharma from their office to witness the agreement which was executed in Bombay. 10. Mr. Shah for plaintiffs, reiterated that the said agreement was executed in Bombay, admitting at the same time, that the agreement itself does not mention so. He, however, argued that the defendants also could not support their statement that the agreement was executed at Madras and not at Bombay. 11. Mr. Shah for plaintiffs also drew my attention to para 2 of the said letter dated 02-11-1993, which reads as follows : "We are enclosing herewith Demand Draft No. 115537 dated 29-10-1993 for Rs. 3,50,000/- drawn at State Bank of Hyderabad payable at Bombay as per the agreement." 12. Heavily relying upon this para, Mr. Shah for plaintiffs argued that this para from the defendants' letter makes it amply clear that the payment was to be made at Bombay though the agreement is not very clear as to where the amount was payable. He submitted that Exhibit A annexed to the petition for Leave under Clause XII of the Letters Patent, which is also Exhibit C to the plaint, is the letter written by defendants themselves wherein, they admit that the amount is paid to the plaintiffs "at Bombay as per the agreement", and that, there is an implied agreement to pay the amount in Bombay only and since the payment was made in fact accordingly, at Bombay, the material part of the cause of action did arise at Bombay since the suit is based on contract, it is the Bombay High Court which has jurisdiction to try and entertain the suit. 13. Much is said about the balance of convenience by Mr. Palkhiwala, appearing for defendants. However, curiously enough in the affidavit-in-support of the Chamber Summons, no averment is made by defendants on this point. Arguments on this point were addressed only across the bar. 14. Mr. 13. Much is said about the balance of convenience by Mr. Palkhiwala, appearing for defendants. However, curiously enough in the affidavit-in-support of the Chamber Summons, no averment is made by defendants on this point. Arguments on this point were addressed only across the bar. 14. Mr. Palkhiwala for defendants relied upon (Bhuramull Maskara v. Ramkamal Maskar)1, A.I.R. (38)1951 Calcutta 105, Head Note (c), wherein it is stated that for the purpose of determining whether the leave under Clause XII of the Letters Patent, already granted should be revoked or not, the High Court will ordinarily take into consideration the balance of convenience. In this matter, the suit was filed for declaration of the shares of the parties in the joint properties and for partition and for accounts. There was a long list of properties consisting of about 50 in number and the only item of property which would be said to be within the jurisdiction of Calcutta High Court was the interest in a monthly tenancy with respect to half a room in some premises at Calcutta. Under these circumstances, the learned Judge of the Calcutta High Court exercised his discretion to revoke the leave which was already obtained, and rightly so. The learned Judge relied upon the case of (Madanlal Jalan v. Madanlal)2, reported in 49 C.W.N. 357 which has laid down that if only a part of the cause of action has arisen within the jurisdiction, then it is the question of discretion for the Court to give or refuse leave or where leave has already been granted to revoke or maintain the leave. The learned Judge has said in his judgment that what weighed with him was the consideration of the balance of convenience and that, only an insignificant part of the cause of action was shown to have arisen within the jurisdiction of the Calcutta High Court and he was exercising his discretion to revoke the leave granted under Clause XII of the Letters Patent. 15. In my opinion, the above authority would not come to the help of the defendants. 15. In my opinion, the above authority would not come to the help of the defendants. The present suit is a suit on contract and the cause of action which gives rise to filing a suit on contract can arise if the defendants are carrying on business within the jurisdiction of that Court, or if the delivery of the subject matter of the Agreement is agreed to be made within the jurisdiction of that Court, or if the payment is required to be made on that place, or if the contract is executed at that place, or if performance is promised at that place, or if breach has taken place within the jurisdiction of that Court. In the present case at hand, defendants are admittedly not carrying business at Bombay, however, according to them, the contract was executed at Bombay. There appears to be some grey area on this aspect and neither the plaintiffs nor the defendants are able to conclusively prove that the contract was in fact executed either at Madras or at Bombay. However, when leave under Clause XII of the Letters Patent is given, the Court has to see the averments made in the plaint as a whole and grant the Leave accordingly. Moreover, the defendants also have not succeeded even prima facie, in refuting the averment of the plaintiffs that the contract was executed at Bombay. To conclusively prove this fact, evidence will have to be recorded. As far as payment aspect is concerned, though the Agreement is silent on this part, in my an opinion, the letter from the defendants dated 02-11-1993 which is Exhibit A annexed to the Affidavit for Leave under Clause XII, and which is annexed as Exhibit C to the plaint, squarely nails the defendants, because they themselves have admitted that they were making payment to the plaintiffs at Bombay as per the Agreement. Thus, the implied agreement about making payment by the defendants to the plaintiffs at Bombay as per the agreement is clearly spelt out. 16. Mr. Shah for plaintiffs, relied upon a Calcutta judgement reported in The Calcutta Weekly Notes, Volume XXXV, page 930 i.e. on (The Secretary of State for India in Council v. Golabrai Paliram)3, (Coram : Bankin. Thus, the implied agreement about making payment by the defendants to the plaintiffs at Bombay as per the agreement is clearly spelt out. 16. Mr. Shah for plaintiffs, relied upon a Calcutta judgement reported in The Calcutta Weekly Notes, Volume XXXV, page 930 i.e. on (The Secretary of State for India in Council v. Golabrai Paliram)3, (Coram : Bankin. C.J. and Pearson, J.) wherein it is stated by the Division Bench that complicated questions of fact or mixed questions of law and fact are not to be raised and decided on an application to revoke the leave granted under Clause XII of the Letters Patent to file the plaint in the High Court and to have the plaint taken off the file. It is further observed in this judgment that application should be dismissed and the case be directed to proceed in the usual way. It is further stated in this case that after the case has proceeded to the stage of filing written statement and discovery, such questions may be determined as preliminary issues, with proper opportunity to either party to adduce evidence bearing upon them. 17. Mr. Shah for plaintiffs submitted that it will be unfair to throw the plaintiffs out of Court at this stage on the mere application taken out by defendants praying for revocation of the leave under Clause XII which is already granted mainly on the ground of "balance of convenience" which is not even pleaded in the affidavit-in-support of the Chamber Summons, especially when the defendants can, under section 9-A of the amended Code of Civil Procedure, raise a preliminary objection on the point of jurisdiction and even can lead evidence to substantiate their claim. 18. I am in agreement with the submissions made by Mr. Shah for plaintiffs. As already observed, defendants' letter dated 2nd November, 1993 gives credence to the submissions made by the plaintiffs' advocate that there was as implied agreement to make the payment at Bombay and according to which payment was made by the defendants to the plaintiffs at Bombay, therefore, material part of cause of action has arisen in Bombay, and therefore, though the defendants are residing outside the jurisdiction of Bombay or carrying on business at Madras, leave under Clause XII of the Letters Patent was rightly given, and that it should not be revoked. 19. Mr. 19. Mr. Shah for plaintiffs also drew my attention to the case of (Shanta Apte v. Sailapati Chatterji)4, reported in A.I.R. (34)1947 Bombay 72. In this case, the plaintiff Shanta Apte who was residing outside Bombay sued the defendant and other thirty persons, who were from Calcutta on an oral contract to give a singing performance alleged to have taken place at the Victoria Terminus Railway Station, Bombay. The contract was to be performed at Calcutta. The contract itself was not in dispute but it was denied by the defendants that it took place at Victoria Terminus Railway Station at Bombay. Question was whether any part of cause of action arose within the jurisdiction of the Bombay High Court under Clause XII of the Letters Patent, and it was held by this Court that if the plaintiff was right, the contract at Bombay was one which, if traversed the plaintiff had to prove. It, therefore, amounted to a part of cause of action, which though unlikely to be in dispute except for the purpose of determining jurisdiction, gave the Bombay High Court jurisdiction over the matter. In the very same case, our High Court also held that balance of convenience of both the parties should be considered. 20. I am in agreement with the views expressed by the learned Judge in this judgement and the findings given therein. 21. Coming to the facts of the present case at hand, as already observed, material part of the cause of action, in my opinion, has arisen in Bombay and therefore, it will be unfair to the plaintiffs if the Leave under Clause XII of the Letter Patent is revoked. Hence, the following order: ORDER Chamber Summons No. 1424 of 1997, taken out by the defendants for revoking Leave under Clause XII of the Letters Patent granted to the plaintiffs, is dismissed. No order as to costs. Chamber summons dismissed.