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CASE NO.: Appeal (civil)  867 of 2006

PETITIONER: Mayar (H.K.) Ltd. & Ors.

RESPONDENT: Owners & Parties, Vessel M.V. Fortune Express  & Ors

DATE OF JUDGMENT: 30/01/2006

BENCH: RUMA PAL & P.P. NAOLEKAR

JUDGMENT: JUDGMENT [arising out of Special Leave Petition (Civil)  No. 17906 of 2004]

P.P. NAOLEKAR, J. :  Leave granted. This appeal is preferred by the plaintiff-appellants challenging the  judgment of the Division Bench of the Calcutta High Court dated 23.8.2004  whereby the plaintiffs’ suit filed in Admiralty jurisdiction was  directed to  remain permanently stayed and the bank guarantee furnished by the  defendant-respondents in the suit was directed to stand immediately  discharged.  The plaintiff-appellants were also directed to pay the costs.         Appellant No. 1 Mayar (H.K.) Limited filed admiralty suit in the High  Court at Calcutta on 27.3.2000 in admiralty jurisdiction along with  appellants Nos. 2 to 5 with whom a contract to sell the goods was entered  into by plaintiff / appellant No.1, against the defendant-respondents alleging,  inter alia, that plaintiff / appellant No. 1 (hereinafter called "A-1") is a  company incorporated under the laws of Hong Kong and engaged in the  business of export and import of timber logs.  By and under a Charter Party  Agreement entered into on 7.1.2000 between plaintiff No. 1-Mayar (H.K.)  Limited  and defendant No. 2-Trustrade Enterprises PTE Ltd., a company  incorporated  under the appropriate laws of Singapore and carrying on  business, inter alia, at 101, Cecil Street 10-04 Tong. Eng. Building,  Singapore (description given in the plaint) an owner on behalf of the vessel  M.V. "Fortune Express" (hereinafter referred to as "the vessel"), a foreign  vessel flying the flag of Singapore,  the defendants agreed to carry on board  the vessel a quantity of 5200 CBM Barawak Round logs or upto vessel’s full  capacity for discharge at the Port of Calcutta, India.  In or about January  2000, A-1 purchased various quantities of Malaysian Barawak logs for the  purpose of shipment to the Port of Calcutta and to sell the same to various  third parties having their offices in West Bengal, India.  Under five bills of  lading dated 21.2.2000, 17.2.2000, 24.2.2000, 15.2.2000 and 18.2.2000, the  defendants agreed to carry on board the said vessel 1638 pieces of logs of  different quality measuring 5325.2941 CBM from various ports of Malaysia  to the Port of Calcutta, India.  At the request of A-1, the five bills of lading  were split into 17 bills of lading at the instance of the defendants so as to  facilitate sale by A-1 to various buyers in West Bengal, India.  The  appellants 1 to 5 are the holders  in due course and/or endorsees of the six of  those bills of lading which dealt with the 642 pieces of logs. As per the  stowage  plan of the vessel, out of  642 logs, the subject matter of bills of  lading, which were loaded on board the vessel,  578 logs were lying on the  deck of the vessel.  The vessel arrived at the Port of Calcutta on 7.3.2000  and started discharging the cargo lying on its deck from that date till  15.3.2000.  At the time of the discharge of the cargo lying on the deck of the  vessel, it was found that 456 logs out of 578 logs which were lying on the  deck of the vessel were missing and had been short-landed.  It has been  alleged that in breach of the defendants’ duty as a carrier and/or bailees for  reward and/as evidenced by the six bills of lading, the defendants have failed  to deliver 456 logs whereby the plaintiffs have suffered loss and damage.   The plaintiffs have also alleged that the defendants also acted in breach of

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their contract entered into with A-1 being the shipper under the aforesaid six  bills of lading.  The defendants have  acted in breach of the Charter Party  Agreement entered with A-1  by failing and neglecting to carry on board the  vessel from the loading point to the discharge port, the agreed quantity of  logs.  As the logs were not delivered, all the plaintiffs are entitled to claim  from the defendants the proportionate value and expenses incurred on  account of the said missing 456 logs which is approximately valued at Rs.  1,30,19,688.44p. as per the particulars stated hereinbelow :

1.  Proportionate value of 456 logs of aggregate     value of Rs.1,56,87,298.44p.                                        Rs.1,09,13,902.56p.

2. Proportionate port charge and other charges    paid in respect of 456 logs.                                 Rs.     4,14,130.72p.

3. Proportionate custom duty paid in respect     of 456 logs.                                                        Rs.     5,00,264.73p .

4.  Proportionate insurance payment made     in respect of 456 logs.                                             Rs.    10,91,390.43p                                                                        --------------------- ----                                                                         Rs.1,30,19,688.44p.                                                                        --------------------- ----     

The plaintiffs have also claimed from the defendants interest on the  aforesaid sum at the rate of 24 per cent per annum until realization of the  entire sum from the defendants.   The plaintiffs have  prayed for the arrest of  the vessel along with her tackle, apparel and furniture.         On 27.3.2000 itself, the learned Single Judge of the Calcutta High  Court passed an order  that it appears that the claim of the plaintiffs arises  out of short-landing of the goods as mentioned in the affidavit of arrest  amounting to a total sum of Rs.1,30,19,688.44p.  The vessel in question is a  foreign vessel and does not have any assets within the jurisdiction of the  Court.  The said vessel is now lying at Kidderpore Dock and if the said  vessel is allowed to ply from the said dock then the decree that may have  been passed in the suit in favour of the plaintiffs will frustrate the  proceedings, as the defendant-respondents have no assets within the  jurisdiction of the Court and in view thereof the Marshall is directed to arrest  the said vessel M.V. Fortune Express along with her tackle, apparel and  furniture.  It was made clear in the order  that if the said vessel furnishes a  bank guarantee for the amount mentioned in the order, with the Registrar,  Original Side, High Court, Calcutta,  they will be at liberty to apply before  the Court for vacation of the order.  On 12.4.2000, the Punjab National  Bank, Calcutta, submitted a letter of intent before the Registrar, High Court,  Original Side, Calcutta regarding furnishing of the bank guarantee on behalf  of the defendant-respondents seeking order of the court for release of the  vessel.   On submission of the letter of intent for furnishing the bank  guarantee on behalf of the owners and parties interested in the vessel, i.e.,  the respondents, dated 12.4.2000, the learned Single Judge of the Calcutta  High Court on 12.4.2000 itself has passed an order releasing the vessel from  arrest vacating the order of arrest dated 27.3.2000.  The order was passed  without prejudice to the rights and contentions of the owners of the vessel  that the suit is not maintainable.  On 17.5.2000, the Punjab National Bank  furnished the bank guarantee binding itself and the defendants for the  payment of the amount of Rs.1,30,19,688.44p.  The guarantee incorporated a  term that the defendants and the Bank do thereby submit themselves to the  jurisdiction of the Court.   On 7.7.2001, the defendants filed an application purported to be  under Order VII Rule 11 of the Code of Civil Procedure 1908 (for short "the  Code") alleging therein that the suit filed by the plaintiffs is liable to be  dismissed in limine and as a consequence thereof the bank guarantee is

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liable to be released, on the grounds that as per Clause 3 of the Bill of  Lading (for short "BOL") the court having jurisdiction to entertain the suit,  is the court of the carrier’s country and thus the Calcutta High Court has no  jurisdiction to entertain the suit;  that the contract for carriage was for deck  cargo and, therefore, liability of the carrier was excluded by application of  Clause 2 and Clause 9 read with Clause 19 of BOL and the same being  binding on the plaintiffs the defendants are not at all liable for payment of  the damages; and that the suit does not disclose any cause of action.   The  learned Single Judge by his order dated 1.7.2002 dismissed the application  filed by the defendants for dismissal of the suit relying on the decision of  this Court in Chittaranjan Mukherji vs. Barhoo Mahto, AIR 1953 SC 472,  that the defendants having received a favourable order from the Indian court  cannot turn around and challenge the jurisdiction of the very court at a later  stage.  It was also held that for application of Clause 9 of BOL and  exonerating the carrier from its liability and responsibility, it would be  necessary to prove that the loss or damage is the result of any act, neglect or  default  on account of any servant of the carrier who is in the  management  of the deck cargo, which is a matter of evidence and cannot be ascertained at  the preliminary stage.   Aggrieved by the said order of the learned Single Judge, an appeal  was preferred  before the Division Bench of the Calcutta High Court by the  defendants which was allowed by order dated 23.8.2004   The Division  Bench of the High Court has held that under the forum selection clause  (Clause 3) of BOL any dispute arising therefrom shall be decided in the  country where the carrier has its principal place of business governing the  law of such country and, thus, the Singapore Court alone will have  jurisdiction to entertain the suit.  Some interesting findings have been  arrived at by the Division Bench which have  material bearing in deciding  the present appeal and, therefore, they are referred herein.  The Division  Bench has said that the vessel (Fortune Express) having sailed into the  Calcutta Port and the claim being of an admiralty nature the Court had  jurisdiction by the laws of India in the same manner as it would have  jurisdiction if a Singapore trader happened to open up a place of business  within the local limits of the ordinary original civil  jurisdiction  of the  Court.  The issue is not one of possession of jurisdiction but of its exercise.   If the parties have chosen a particular forum and a particular set of laws in  the world to govern them, then they are, in the large majority of ordinary  cases, to be held to their bargain and not to be allowed to depart therefrom  only because one party finds it convenient and, therefore, chooses to do so.   The finding as regards the chosen forum of Singapore Court and to be  governed by the laws of Singapore has been arrived at by the Division  Bench only on the basis of the plaintiffs mentioning that defendant No. 2  Trustrade Enterprises PTE Ltd. is a company incorporated under the  appropriate laws of Singapore and is carrying on its business at Singapore.    The Court has also observed that the Singapore law with regard to the  discharge of liability is quite different.  According to the Singapore Act, the  Hague Rules have been somewhat amended.  For voyages which start from  ports of Singapore or even the goods which are first shipped from there, the  Act seems to include even deck cargo as goods.  There is not a single line in  the plaint stating either that the Singapore law is the applicable law or that  by reason of the application thereof the goods are not deck cargo.  As  regards the liability of the defendants, the Court has found that admittedly  the goods were carried on the deck and there is no liability of the carrier if  the deck cargo is lost.  The Court has further held that the defendants by  submitting the bank guarantee before the Court did not submit to the  jurisdiction of the Court, particularly so when the order dated 12.4.2000  passed by the learned Single Judge specifically mentioned that the order was  being passed without prejudice to the rights and contentions of the owners of  the vessel that the suit is not maintainable.  As regards the submission of the  plaintiffs that compelling the plaintiffs to file a suit for damages at this late  stage at Singapore Court would be most unjust because the application by  the defendants for treating the plaint off the record of the Court had been  filed on 7.7.2001 when  the order for arrest of the vessel was passed on  27.3.2000 and particularly the plaintiffs’ right  would be jeopardized  because under Article 3(6) of the Hague Rules, 1924 the carrier and the ship

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had been absolved of all liability in respect of the loss or damage if suit were  not brought within one year after delivery of the goods or the date when  the  goods should have been delivered, the Court has opined that under Article 3,  Clause 6 of the Hague Rules, 1924, the limitation had been with respect to  the goods.  However, Article 1(c) of the Hague Rules, 1924 mentioned that  the cargo which had been carried on deck would not come under the  definition of ‘goods’.   Except 135 logs, all others were described in BOL as  deck cargo and thus the limitation prescribed for filing of the suit would  have no application.   The Court has further observed that though the law of  Singapore on the point had been different in the sense that even the deck  cargo would be considered under the definition of ‘goods’ , but the plaintiffs  had not mentioned a single word in their plaint regarding the applicability of  the Singapore law.   It was further held that the plaintiffs, from the very  outset of the suit, were aware of the fact regarding the appropriate forum and  hence now at this stage they could not plead to reap the benefit from their  own fault.  The Court  held that the plaintiffs’ plaint suppressed the forum  selection clause relating to the law governing the contract and approached a  wrong court to get an ex parte arrest order against the defendants’ vessel.  It  has been observed that the suppression of  fact regarding forum selection  was of serious nature and that would be sufficient to dismiss the suit filed by  the plaintiffs.          As regards the contention of the plaintiffs that the defendants having  submitted to the jurisdiction of the Court, could not challenge the  jurisdiction of it at a later stage, the Court  has held  that the defendants  raised the objection regarding the maintainability of the suit at the first  opportunity itself which is also reflected in the order.  It has been held by the  Court that by release of the vessel the defendants have not taken advantage  of the Court’s order because instead of  the arrested ship lying in wait to  satisfy  the  decree  that  might  be  passed  a  sufficient  money  equivalent  provided  by  the  owners  and  the parties interested in the ship lies so in  wait.    On consideration of the submissions made by the parties before the  Division Bench and the relevant provisions of BOL and the provisions of the  Indian Carriage of Goods by Sea Act, 1925, the Division Bench has arrived  at the following findings :

(i)     The parties have chosen the Singapore Court and the Singapore  law by express contract.  They should be held bound to it.

(ii)    Arrest of the ship was obtained from the Calcutta High Court in  Calcutta wrongfully since it was in breach of the above clause.

(iii)   The defendants never submitted to the Calcutta jurisdiction as they  made reservation about the maintainability of the suit within about  a fortnight of the arrest when the order for furnishing Bank  Guarantee and release of the vessel was obtained on their behalf.

(iv)    Save for 135 longs, the lost logs being 456 in number are covered  entirely by the exclusion clause agreed upon which excludes  liability for any defaults of the shippers’ servants in the  management of the deck cargo.

(v)     Deck cargo is that which is described as such in the Bill of Lading  and is also carried as such.  The admissions in the plaint are clear  as to the deck cargo nature of the said balance number of logs and  the admissions in the plaint are equally clear that the loss thereof  occurred due to the actions or neglect of the defendants’ servants.

(vi)    The plaintiffs suppressed the jurisdiction clause and the liability  exclusion clause; arrest of the ship being obtained thereupon the  Court should decline to proceed any further on the improper plaint,  improperly proceeded with by the plaintiffs."  

The Court has, inter alia, recorded a finding that Order VII Rule 11 of the  Code might not in terms be applicable as the plaint discloses the cause of

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action fully and wholly, but that by reason of the suppression contained in it,  had the exclusion clause been inserted, the cause of  action would be lost  with regard to the lost cargo excepting for 135 logs.  Again, under the said  Rule the suit might not be held to be barred as such, because the Calcutta  High Court does have the necessary admiralty jurisdiction to entertain the  plaint and even cause arrest of the ship.   The case is not so much on the  terms of Order VII Rule 11  of the Code as upon the inherent jurisdiction of  the Court, which it always possesses to reject or stay, a plaint by treating it  as complete and by notionally removing the suppression for that purpose.   After treating the plaint as complete in that manner, if the Court finds that  the cause of action is lacking, it can reject the plaint just as it could reject a  plaint had it been properly presented along with all relevant and necessary  materials.  It can also similarly stay a suit permanently.         The aforesaid finding clearly indicates that the order of permanent  stay of the suit was made by the Division Bench not because  the plaint is  liable to be rejected on the grounds that it falls within the parameters of  Order VII Rule 11 of the Code  or the suit is liable to be stayed in exercise of  the powers under Section 10 of the Code or that the Court has passed an  order under Order VI Rule 16 of the Code which has not been complied  with.    The Division Bench, in fact, has exercised the jurisdiction for stay of  the suit as the plaintiffs did not disclose the forum selection clause whereby  the Court at Calcutta had no jurisdiction to entertain the suit and further  suppressed the fact that the claim in the suit shall be governed by the laws  applicable in the Singapore Court and that plaintiffs have no case because  the claim is in regard to deck cargo.         Under  Order  VII  Rule  11  of  the  Code,   the  Court  has  jurisdiction  to  reject  the  plaint  where  it  does  not  disclose  a  cause  of  action,  where  the  relief  claimed  is  undervalued  and  the  valuation  is   not  corrected  within  a  time  as  fixed  by  the  Court,  where  insufficient  court  fee  is  paid  and  the  additional  court  fee  is  not  supplied  within  the  period  given by the Court, and where the suit appears from the  statement in the plaint to be barred by any law.   Rejection of the plaint in  exercise of the powers under Order VII  Rule 11 of the Code would be on  consideration of the principles laid down by this Court.  In T. Arivandandam  vs. T.V. Satyapal and Another, (1977) 4  SCC 467, this Court has held that if  on a meaningful, not formal, reading  of the plaint it is manifestly vexatious,  and meritless, in the sense of not disclosing a clear right to sue, the Court  should  exercise  its power under Order VII Rule 11 of the Code taking care  to see that the ground mentioned therein is fulfilled.  In Roop Lal Sethi vs.  Nachhattar Singh Gill,  (1982) 3 SCC 487, this Court has held that where the  plaint discloses no cause of action, it is obligatory upon the court to reject  the plaint as a whole under Order VII Rule 11 of the Code, but the rule does  not justify the rejection of any particular portion of a plaint.  Therefore, the  High Court could not act under Order VII Rule 11(a) of the Code for striking  down certain paragraphs nor the High Court could act under Order VI Rule  16 to strike out the paragraphs in absence of anything to show  that the  averments in those paragraphs are either unnecessary, frivolous or vexatious,  or that they are such as may tend to prejudice, embarrass or delay the fair  trial of the case, or constitute an abuse of the process of the court.  In ITC  Ltd. Vs. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70,  it was held  that the basic question to be decided while dealing with an application filed  by the defendant under Order VII Rule 11 of the Code is to find out whether  the real cause of action has been set out in the plaint or something illusory  has been projected in the plaint with a view to get out of the said provision.   In Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1  SCC 557, this Court has held that the trial court can exercise  its powers  under Order VII Rule 11 of the Code at any stage of the suit before  registering the plaint or after issuing summons to the defendant at any time  before the conclusion of the trial and for the said purpose the averments in  the plaint are germane and the pleas taken by the defendant in the written  statement would be wholly irrelevant at that stage.  In Popat and Kotecha  Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, this  Court has culled out the legal ambit of Rule 11 of Order VII of the Code in  these words :

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"There cannot be any compartmentalization, dissection,  segregation and inversions of the language of various  paragraphs in the plaint.  If such a course is adopted it would  run counter to the cardinal canon of interpretation according to  which a pleading has to be read as a whole to ascertain its true  import.  It is not permissible to cull out a sentence of a passage  and to read it out of the context in isolation.  Although it is the  substance and not merely the form that has to be looked into,  the pleading has to be construed as it stands without addition or  subtraction of words or change of its apparent grammatical  sense.  The intention of the party concerned is to be gathered  primarily from the tenor and terms of his pleadings taken as a  whole.  At the same time, it should be borne in mind that no  pedantic approach should be adopted to defeat  justice on hair- splitting technicalities."  

       From the aforesaid, it is apparent that the plaint cannot be rejected on  the basis of the allegations made by the defendant in his written statement or  in an application for rejection of the plaint.  The Court has to read the entire  plaint as a whole to find out whether it discloses a cause of action and if it  does, then the plaint cannot be rejected by the Court exercising the powers  under Order VII Rule 11 of the Code.  Essentially, whether the plaint  discloses a cause of action, is a question of fact which has to be gathered on  the basis of the averments made in the plaint in its entirety taking those  averments to be correct.  A cause of action is a bundle of facts which are  required to be proved for obtaining relief and for the said purpose, the  material facts are required to be stated but not the evidence except in certain  cases where the pleadings relied on are in regard to misrepresentation, fraud,  wilful default, undue influence or of the same nature. So long as the plaint  discloses some cause of action which requires determination by the court,  mere fact that in the opinion of the Judge the plaintiff may not succeed  cannot be a ground for rejection of the plaint.  In the present case, the  averments made in the plaint, as has been noticed by us, do disclose the  cause of action and, therefore, the High Court has rightly said that the  powers under Order VII Rule 11 of the Code cannot be exercised for  rejection of the suit filed by the plaintiff-appellants.         Similarly, the Court could not have taken the aid of Section 10 of the  Code for stay of the suit as there is no previously instituted suit pending in a  competent court between the parties raising directly and substantially the  same issues as raised in the present suit.           It is contended by Mr. R F Nariman, learned senior counsel appearing  for the defendant-respondents that the court has inherent discretionary  jurisdiction to stay the proceedings in appropriate matters where the court  thinks fit to do so.  This jurisdiction of the court to stay the proceedings in  appropriate cases is not limited to the jurisdiction conferred on the court in  India under Section 10 of the Code.  It is distinct from the jurisdiction  conferred by the Code and for this proposition reliance was placed on  Bhagat Singh Bugga vs. Dewan Jagbir Sawhney, (28) AIR 1941 Calcutta  670, Hansraj Bajaj vs. Indian Overseas Bank Ltd., AIR 1956 Calcutta 33,   Krishnan and Another vs. Krishnamurthi and Others, AIR 1982 Madras 101  and M/s. Crescent Petroleum Ltd. vs. "MONCHEGORSK" and Anr., AIR  2000 Bombay 161.  In the aforesaid matters, the Court has recognized the  inherent power of the High Court to stay the proceedings in appropriate  cases.   In Bhagat Singh Bugga’s case (supra), it is said that the Code is not  exhaustive and does not expressly provide a remedy in all eventualities and,  therefore, the Court has in many cases where the circumstances warrant it,  and the necessities of the case require it, to act upon the assumption of the  possession of an inherent power to act ex debito justitiae and to do real and  substantial justice.   In exercise of this power, the High Court can restrain a  defendant by injunction in another Court in spite of provision of Section 10  of the Code.  In  Hansraj Bajaj’s case (supra), the High Court put a note of  caution while upholding the inherent power of the High Court to stay the suit  though filed in a competent court when it said:  

"The jurisdiction to stay an otherwise competent suit is to

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be sparingly exercised and within the strict limits of the rigorous  condition, whose principles may be stated thus : 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 the Court stays an action  brought within the jurisdiction in respect of a cause 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 accessible 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 an abuse of the  process of the Court and, secondly, also that the stay will not  cause any injustice to the plaintiff.  \005\005"  

In Krishnan’s case (supra), the Court laid down that if the ends of justice  require or it is necessary to prevent the abuse of the process of the court, the  court has jurisdiction to stay the trial of a suit pending before it, but the  exercise of such power would depend upon the facts and circumstances of  each case.            For the sake of convenience, we may reproduce certain relevant  clauses of the Bill of Lading (BOL) and provisions of the Indian Carriage of  Goods by Sea Act, 1925 (hereinafter referred to as "the Act") as under :

Bill of Lading "3.  Jurisdiction  Any dispute arising under the Bill of Lading shall be decided in the  country where the carrier has his principal place of business and  the law of such country shall apply except as provided elsewhere  herein."

"9.  Live Animals and Deck Cargo shall be carried subject to the Hague Rules as referred to in Clause  2 hereof with the exception that notwithstanding anything  contained in Clause 19 the Carrier shall not be liable for any loss  or damage resulting from any act, neglect or default of his servants  in the management of such animals and deck cargo."

"19. Optional Stowage Unitization (a) Goods may be stowed by the Carrier as received or, at Carrier’s  option, by means of containers, or similar articles of transport use  to consolidate goods.

(b) Containers, trailers and transportable tanks whether stowed by  the Carrier or received by him in a stowed condition from the  Merchant, may be carried on or under deck without notice to the  Merchant.

(c) The Carrier’s liability for cargo stowed as aforesaid shall be  governed by the Hague Rules as defined above notwithstanding the  fact that the goods are being carried on deck and the goods shall  contribute to general average and shall receive compensation in  general average."           Indian Carriage of Goods by Sea Act, 1925  "2.   Application of Rules :  Subject to the provisions of this Act,

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the rules set out in the Schedule (hereinafter referred to as "the  Rules") shall have effect in relation to and in connection with the  carriage of goods by sea in ships carrying goods from any port in  India to any other port whether in or outside India."

"SCHEDULE RULES RELATING TO BILLS OF LADING Article I Definitions

In these Rules the following expressions have the meanings hereby  assigned to them respectively, that is to say \026

xxx                             xxx                                     xxx (c) "Goods" includes goods, wares, merchandises, and articles of  every kind whatsoever, except live animals and cargo which by the  contract of carriage is stated as being carried on deck and is so  carried;  [unamended clause]

(c) "Goods" includes any property including live animals as well  as containers, pallets or similar articles of transport or packaging  supplied by the consignor, irrespective of whether such property is  to be or is carried on or under the deck"  [as amended by Act  44/2000]

"Article III Responsibilities and Liabilities.

xxx                             xxx                             xxx (6)       \005.                 \005..                          \005.         In any event the carrier and the ship shall be discharged from all  liability in respect of loss or damage unless suit is brought within one  year after delivery of the goods or the date when the goods should  have been delivered.

       *[This period may, however, be extended if the parties so agree  after the cause of action has arisen:

       Provided that a suit may be brought after the expiry of the  period of one year referred to in this sub-paragraph within a further  period of not more than three months as allowed by the court]*.

\005..                          \005..                          \005.."           --------------- *Added by Act 28/1993 While working out the equity between the parties and directing  permanent stay of the suit and release of the bank guarantee, the Division  Bench was mainly impressed by two factors that (i) Clause 3 of BOL gives  exclusive jurisdiction to the Singapore Court to try and decide any dispute  arising between the parties under the BOL and the parties shall be governed  by the law which is applicable in Singapore; and (ii)  the goods lost being  the deck cargo the carrier ship has no liability in respect of the loss or  damage as per Clause 9 of BOL.  The Division Bench has said that Clause 3  and Clause 9 of BOL are material clauses which should have been pleaded  by the plaintiff-appellants in their suit and, therefore, abuse of process of the  Court.         As per law of pleadings under Order VI Rule 2 of the Code, every  pleading should contain, and contain only, a statement in a concise form of  the material facts on which the party relies for his claim or defence, as the  case may be.   Thus, the facts on which the plaintiff relies to prove his case  have to be pleaded by him.  Similarly, it is for the defendant to plead the  material facts on which his defence stands.  The expression ‘material facts’  has not been defined anywhere, but from the wording of Order VI Rule 2 the

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material facts would be, upon which a party relies for his claim or defence.   The material facts are facts upon which the plaintiff’s cause of action or  defendant’s defence depends and the facts  which must be proved  in order  to establish the plaintiff’s right to the relief claimed in the plaint or the  defendant’s defence in the written statement.   Which particular fact is a  material fact and is required to be pleaded by a party, would depend on the  facts and circumstances of each case.    In A.B.C. Laminart Pvt. Ltd. Vs.  A.P. Agencies, Salem, (1989) 2 SCC 163, this Court has considered the  ambit of the exclusion clause whereby the jurisdiction of one court is  excluded and conferred upon another court by agreement of the parties and  said that in a suit for damages for breach of  contract, the cause of action  consists of making of the contract, and of its breach, so that the suit may be  filed either at the place where the contract was made or at the pace where it  should have been performed and the breach occurred.  When the court has to  decide the question of jurisdiction pursuant to an ouster clause, it is  necessary to construe the ousting expression or clause properly to see  whether there is ouster of jurisdiction of other courts.  When the clause is  clear, unambiguous and specific accepted notions of contract would bind the  parties and unless the absence of ad idem can be shown, the other courts  should avoid exercising jurisdiction.  As regards construction of the ouster  clause when words like ‘alone’, ‘only’, ‘exclusive’ and the like have been  used, there may be no difficulty.  Even without such words in appropriate  cases, the maxim ‘expressio unius est exclusio alterius’ \026 expression of one  is the exclusion of another \026 may be applied.  What is an appropriate case  shall depend on the facts of the case.  In such a case, mention of one thing  may imply exclusion of another.  When certain jurisdiction is specified in a  contract, an intention to exclude all others from its operation may in such  cases be inferred.  It has, therefore, to be properly construed.   The allegations in the plaint are to the effect that the parties have  entered into a contract on 7.1.2000 to carry on board the vessel M.V.  Fortune Express under the six split bills of lading 642 logs from the port of   Sarawak, Malaysia for discharge at the port of Calcutta, India.  As per  stowage plan, 578 logs were lying on the deck of the vessel.  At the time of  the discharge of the cargo lying on the deck of the vessel, it was found that  456 logs out of 578 logs were missing and had been short-landed.  The  plaintiffs claimed a decree for the proportionate value of 456 logs, port and  other charges, custom duty and proportionate insurance payment.  As per the  plaintiffs’ allegation, the logs, which were to be carried on the vessel owned  by the defendants, had not been delivered at the port of destination.  Thus,  all the material facts on the basis of which the plaintiffs claimed the decree  are alleged in the plaint.  As the logs were not delivered at the port at  Calcutta, the port of destination, the part of cause of action arose within the  jurisdiction of the Calcutta Court and, thus, the suit filed by the plaintiffs at  Calcutta was maintainable although it may be pleaded by the defendants in  their written statement that the Calcutta High Court has no jurisdiction on  account of Clause 3 of BOL.  For the purpose of the cause of action, it was  not necessary for the plaintiffs to plead the ouster of the jurisdiction of the  Calcutta Court.  In fact, it was for the defendants to plead and prove the  ouster of the jurisdiction of the Calcutta Court and conferment of the  jurisdiction in the Singapore Court alone.  On a bare reading of Clause 3 of  BOL, it is clear that any dispute arising under the BOL shall be decided in  the country where the carrier has its principal place of business and the law  of such country shall apply except as provided elsewhere in the BOL.   Therefore, the exclusion clause refers to the jurisdiction of a court where the  carrier has its principal place of business.  Unless and until it is established  that the defendant-carrier has its principal place of business at Singapore, the  exclusion clause has no application.  Simply because in the cause title of the  plaint, the plaintiffs have described defendant No. 2-Trustrade Enterprises  PTE Ltd. to be carrying on business at Singapore, would not ipso facto  establish the fact that the principal place of business of defendant No.2  (respondent herein) is/was at Singapore to exclude the jurisdiction of the  Calcutta Court which admittedly has the jurisdiction to try the suit.   Therefore, absence of reference of Clause 3 of BOL in the pleadings cannot  be said to be suppression of the material fact as the question of jurisdiction  would be required to be adjudicated and decided on the basis of the material

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placed on record at the trial.    In S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and Others,  (2004) 7 SCC 166, this Court has accepted the principle that the suppression  of  a material fact by a litigant disqualifies such litigant from obtaining any  relief.  The rule has been evolved out of the need of the courts to deter a  litigant from abusing the process of court by deceiving it.  But the  suppressed fact must be a material one in the sense that had it not been  suppressed it would have had an effect on the merits of the case.  It must be  a matter which was material for the consideration of the court, whatever  view the court may have taken.  Reliance was placed on R. vs. General  Commrs. for the purposes of the Income Tax Act for the District of  Kensington, (1917) 1 KB 486.           Similarly under Clause 9 of BOL, the carrier was not made liable for  any loss or damage resulting from any act, neglect or default of his servants  in the management of animals and deck cargo.  Under this clause, the carrier  is excluded from making good any loss or damage to the deck cargo which  has resulted from any act, neglect or default of his servants who are in the  management of such deck cargo.  The facts are yet to come on record that  the loss or damage to the deck cargo was the result of any act, neglect or  default of the carrier’s servants who were in the management of the deck  cargo.    In fact, this would be the defence if at all to be raised by the  defendants in their written statement.  It was not at all required for the  plaintiffs to introduce this clause in their plaint.  The liability of the  defendants to pay or not to pay any loss or damages to the cargo, would  depend on proof of certain necessary facts which could only be adjudicated  upon at the trial of the suit.         Clause 2 (General Paramount Clause)  of BOL reads as under:

"The Hague Rules contained in the International Convention  for the Unification of certain rules relating to Bills of Lading,  dated Brussels the 25th August 1924 as enacted in the country of  shipment shall apply to this contract.  When no such enactment  is in force in the country of shipment, the corresponding  legislation of the country of destination shall apply, but in  respect of shipments to which no such enactments are  compulsorily applicable, the terms of the said Convention shall  apply.

Trades where Hague-Visby Rules apply.

The trades where the International Brussels Convention 1924 as  amended by the Protocol signed at Brussels on February 23rd  1968.  The Hague-Visby Rules apply compulsorily, the  provisions of the respective legislation shall be considered  incorporated in this Bill of Lading.  The Carrier takes all  reservations possible under such applicable legislation, relating  to the period before loading and after discharging and while the  goods are in the charge of another Carrier and to deck cargo and  live animals."       Under this Clause of BOL, the Hague Rules contained in the International  Convention for the Unification of Certain Rules Relating to Bills of Lading,   Brussels, August 25, 1924  and Protocol to amend the said Convention,  Brussels, February 23, 1968, as enacted in the country of shipment shall  apply to this contract and if  no such enactment is in force in the country of  shipment, the corresponding legislation of the country of destination shall  apply, but if no such enactments are compulsorily applicable then the terms  of the Convention shall apply, that is to say, in the absence of any enactment  in the country of shipment or in the country of destination, the Hague Rules  shall apply.  Under Article 1, clause (c) of the Hague Rules , the goods shall  include goods, wares, merchandise, and articles of every kind whatsoever  except live animals and cargo which by the contract of carriage is stated as  being carried on deck and is so carried.  Thus, the cargo which by the  contract of carriage is carried on the deck  would not be  goods under the  Hague Rules, whereas under Clause 9 of BOL deck cargo is also included

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for the purposes of the liability of the carrier if the loss or damage to the  goods is not on account of the neglect or default of the servants of the  carriage in the management.   The question whether the cargo transported by  the carrier would be governed by the Hague Rules on account of Clause 2  (General Paramount Clause) or by Clause 9 of BOL would be a question  required to be determined by the Court after the parties placed all material  evidence before it and could not have been decided by the Division Bench at  the preliminary stage.  Clause 19 of BOL permits the Carrier to stow the  goods either on deck or under deck without notice to the merchant as  received by him or at the Carrier’s option by means of containers or similar  articles of transport used to consolidate goods.  Sub-clause (c) thereof  provides that the Carrier’s liability for the cargo stowed shall be governed by  the Hague Rules as defined above notwithstanding the fact that the goods are  being carried on deck and the goods shall contribute to the general average  and shall receive compensation in general average.  This clause has  reference to Clause 14 of BOL which provides for general average and  salvage in respect of goods in the event of accident, danger, damage or  disaster before or after commencement of voyage.  This clause has no  reference to the liability, if any, of the Carrier or the cargo ship for non- delivery of the goods.  In any case, without there being material on record,  Clause 19 cannot be relied upon for absolving the Carrier from his liability  for any damage or loss caused to the goods carried on ship.         It is urged by Shri C.S. Sundaram, learned senior counsel for the  plaintiff-appellants that on 4.12.2001 reply was filed to the application filed  by the defendants under Order VII Rule 11 of the Code wherein the  plaintiffs have denied that 578 out of 642 logs were carried on deck or that  456 out of the said 578 logs which were carried on deck had been short-  landed; that at the time of filing of the suit, information of the plaintiffs was  based on the six split bills of lading contained in Annexures "A" to "F" of  the plaint and the representations made on behalf of the defendant No. 2;   that it subsequently transpired that the allegation that 578 logs were carried  on deck is wholly incorrect and false; and that the original five bills of  lading more fully referred to in paragraph 7 of the plaint did not state that the  logs were carried on deck.  From this, it appears that the plaintiffs are  alleging and asserting that the logs were not carried on deck and, therefore,  Clause 9 has no application.  We are not recording any finding on this issue,  but on the basis of the aforesaid factual questions raised, the High Court  without going into the merits of the case could not have held that the  plaintiffs would not be entitled to a decree on account of Clause 9 of BOL.   Besides this, the Court will be required to give meaning to the words used in  Clause 9 as to  whether the term ‘loss’ in the Clause has to be separately  read or it has to be read and construed as having reference to, damage to  deck cargo and whether it will cover the case of shortlanding of the goods  and not to damaged goods. To get the order of stay of a suit on the ground of abuse of process,  the applicant must show that plaintiff would not succeed but that he could  not possibly succeed on the basis of the pleadings and in the circumstances  of the case.  In other words, the defendant would be required to show very  strong case in his favour.  The power would be exercised by the Court if  defendant could show to the court that the action impugned is frivolous,  vexatious or is taken simply to harass the defendant or where there is no  cause of action in law or in equity.  The power of the court restraining the  proceedings  are to be exercised sparingly or only in exceptional cases.  The  stay of proceedings is a serious interruption in the right, that a party   has to  proceed with the trial to get it to its legitimate end according to substantive  merit of his case.  The court to exercise the power to stay the proceedings  has to keep in mind that the positive case has been made out by the  defendant whereby the court can reach to the conclusion that proceedings,  however, indicate an abuse of the process of Court.  The High Court has  granted stay of proceedings as it found plaintiffs guilty of suppression of   jurisdictional clause of BOL and on the finding that plaintiffs have no case  on merits, and thus it would be abuse of process of the Court if the plaintiffs  are permitted to go ahead with the trial in Calcutta Court.   We are not  satisfied that the  defendants have made out the case on any of the counts. It is urged by the learned senior counsel that where jurisdiction is

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founded on the basis of cause of action arising in Calcutta Court as non  delivery of logs are claimed to be at Calcutta, the defendants are entitled to  apply to the court to exercise its discretion to stay the proceedings on the  ground of forum non conveniens.  It was urged before the High Court and by  Shri C.S. Sundaram, learned senior counsel appearing for the appellants  before us that the appellants will suffer irreparable injury if they are called  upon to file a suit at Singapore Court after the expiry of period of one year,  particularly so when the objection to the jurisdiction of the Calcutta Court  was raised by the defendants on 7.7.2001 and, therefore, the defendants  cannot claim advantage of forum non conveniens.   The argument is based on the basis of Clause (6) of  Article III of the  Schedule to Indian Carriage of Goods by Sea Act, 1925, wherein it has been  provided that in any event the carrier and the ship shall be discharged from  all liability in respect of loss or damage unless suit is brought within one  year after delivery of the goods or the date when the goods should have been  delivered.  By Act No. 28 of 1993, it has been provided that this period may  be extended if the parties so agree after the cause  of  action  has  arisen,   and  further  under  the  proviso a suit may be brought after the expiry of the  period of one year within a further period of not more than three months as  allowed by the court.  Under Clause (6) of Article III,  one year period was  provided to file a suit against the carrier or the ship for loss or damages  which, by amendment in 1993, has been extended to further period of three  months if allowed by the court and can also be extended for a period till the  filing of the suit if the parties to the suit agree after the cause of action has  arisen.  Under Article I of the Schedule, ‘goods’ are defined and as per the  substitution brought about by Act No. 44 of 2000, the goods shall include  any property including live animals as well as containers, pallets or similar  articles of transport or packaging supplied by the consignor, irrespective of  whether such property is to be or is carried on or under the deck.  By the  amended definition, the deck cargo is also included in the definition of  goods provided the deck cargo is in the form of containers, pallets or similar  articles of transport or packaging supplied by the consignor.   Therefore, on   a first reading, the goods transported on a carriage, even if it is a deck cargo,  could be subject to the limitation as provided in Clause (6) of Article III, but  for Section 2 of the Act which specifies that subject to the provisions of the  Act, the rules set out in the Schedule shall have the effect in relation to and  in connection with the carriage of goods by sea in ships carrying goods from  any port in India  to any other port whether in India or outside India.   To  apply the provisions of the Act and the Schedule thereunder, the goods  should be carried by sea in a ship from any port in India to any other port in  India or outside India.    In the present case, admittedly, the goods in  question were carried on the ship from Malaysia for discharge at Calcutta.   The goods having not been carried from any port in India, Clause (6) of  Article III of the Schedule and the provisions of the Act will have no  application for the purposes of limitation.  Therefore, it cannot be said that  by virtue of the Act, the suit would be barred by limitation if the plaint is  required to be presented in the Singapore Court.  None of the parties have  placed before us the Singapore law applicable to the facts of the present  case, nor any argument has been advanced on that basis.  The plaintiff- appellants on these facts cannot claim equity on the basis of the provisions  of the Act and the limitation provided therein.           In Smith Kline & French Laboratories Ltd. & Ors. Vs. Bloch  [ (1983)  2 All ER 72], the first plaintiffs (the English Company)  were  pharmaceutical company in England and were a wholly owned subsidiary of  the second plaintiffs (the U.S. Company)  The defendant was a research  worker working in England.  The defendant brought an action for damages  in Pennysylvania against both the English and the U.S. Companies.  The  English Company (plaintiff) sought an injunction in the English Court to  restrain the defendant from further proceedings with his claim in  Pennysylvania or from making any further claims outside the jurisdiction of  English Court and further sought declarations that the proper law of  agreement was that of England and that the English Company were not  liable for the breaches complained of.  The judge granted the injunction  sought.  The defendant appealed and it was held while dismissing the appeal  that "the Court had jurisdiction  to grant an injunction restraining a litigant

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from continuing proceedings in a foreign court where the parties were  amenable to the English jurisdiction and where it is satisfied (a)  that justice  could be done between the parties  in the English forum at substantially less  inconvenience and expense; and (b)  that the stay of proceedings did not  deprive the litigant in the foreign proceedings of any legitimate personal or  juridical advantage which would otherwise have been available to him.  The  jurisdiction was nevertheless to be exercised with great caution. In Spiliada Maritime Corp Vs. Cansulex Ltd. [ (1986) 3 All ER 843], the  House of Lords explained the ambit of the principle of forum non  conveniens  for issuing the order of stay and  held:  "(1) The fundamental principle applicable to both  the stay  of English proceedings on the ground that  some other forum was the appropriate forum and  also the grant of leave to serve proceedings out of  the jurisdiction  was that the court would choose  that forum in which the case would be tried more  suitably for the interests of all the parties and for  the ends of justice  

(2)  In the case of an application for a stay of  English proceedings the burden of proof lay on the  defendant to show that the court should exercise its  discretion  to grant a stay.  Moreover, the  defendant was required to show not merely that  England was not the natural or appropriate forum  for the trial but that there was another available  forum which was clearly or distinctly more  appropriate than the English forum.  In considering  whether there was another forum which was more  appropriate the court would look for that forum  with which the action had the most real and  substantial connection, e.g. in terms of  convenience or expense,  availability of witnesses,  the law governing the relevant transaction, and the  places where the parties resided or carried on  business.  If the court concluded that there was no  other available forum which was more appropriate  than the English court it would normally  refuse a  stay.  If, however, the court concluded that there  was another forum which was prima facie more  appropriate the court would normally grant a stay  unless there were circumstances militating against  a stay, e.g. if the plaintiff would not obtain justice  in the foreign jurisdiction."                   In this case the Division Bench has held while considering the  question of forum non conveniens as under :         "Let us see, therefore, what are the factors  weighing in favour of the Indian Courts as against  the Courts of Singapore.  The evidence regarding  shortage of goods was said to be in India.  In our  opinion this evidence does not justify the  continuance of the action in the wrong Court,  because the shortage is practically admitted; in any  event the proof of it in Singapore is not a matter of  any very great difficulty.  The other great factor in  favour of the Indian action is that the ship Fortune  Express lost the goods in the very voyage in which  it happened to travel to the Port of Calcutta and  that by reason thereof, it could be quite clearly and  easily arrested and the security obtained for the  action upon the lost logs.  This, in our opinion,  takes a very one sided view of the matter.  The  arrest conventions, the decision of the Supreme  Court in the case of M.V. Elezabeth, reported at

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1993 Supp.(2) SCC page 433, and the various  observations therein from, say paragraphs 75 to 85  of the judgment, no doubt show that the Fortune  Express could be arrested on an admiralty claim of  the present nature.  That arrest makes the action of  the consignee very much secure.  But we are not  deciding upon the issue of security; we are  deciding upon the issue of appropriate  commencement of the action.  If the action can be  appropriately commenced in Calcutta, security can  be obtained and to that extent the consignee can  feel safe.  This does not mean that the reverse is  true.  It would be putting the cart before the horse  if one were to say that because the plaintiff can  commence an action and obtain security here the  action should be held as appropriately commenced.    This is not the correct way to look at the case at  all.  If that were so, parties would be encouraged  not to pay the attention to solemnly agreed clauses  of forum selection and they would rush to the  Admiralty Court even contrary to such a selection  clause and obtain arrest, thereafter arguing, that the  arrest was most convenient for them, that it  produced a security from the shipper, and that if  decree should be passed in their favour there  would be no difficulty in its execution.

xxx                          xxx                        xxx

       The factor for leaning heavily in favour of  Singapore is that the parties have chosen  Singapore law.  We have not had any experts on  Singapore law attending the proceedings before us  and indeed this choice of law was also suppressed  by the plaintiffs like the choice of  Court.  No  doubt, arrest of a ship and the consequent  obtaining of security would be of great advantage  to a plaintiff if it were shown that the owners of  the ship were difficult to trade or had to sue.  Not  so here. The owners have come forward.  They can  be sued in their country.  There is nothing to show  that they are so impecunious or that they are such  slippery customers that filing a suit against them in  Singapore would be a matter of no use at all.   These factors are not present in the case.  We do  not see why in view of these circumstances we  should not hold the parties to their bargain and  send them away from a Court which they had not  agreed to come to."

From the aforesaid, it is apparent that the Court has found that the  Calcutta Court has jurisdiction to try the proceedings except when the forum  selection clause excludes the jurisdiction of the Court.  The Court has also  found that the law of Singapore is not known.  The case of the defendant  carrier/owner of the ship, of exclusion of the Calcutta Court, is solely based  on the exclusion clause which conferred jurisdiction on the Court where the  defendant has the principal place of business, which according to us has to  be determined only after sufficient material is placed before the Court.  In  Advanced Law Lexicon, 3rd Edition 2005,  by P.Ramanatha Aiyar,  at page  3717, ‘principal place of business’ is defined as under: "where the governing power of the corporation is exercised,  where those meet in council who have a right to control its  affairs and prescribe what policy of the corporation shall be  pursued, and not where the labour is performed in executing the  requirements of the corporation in transacting its business.

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The place of a corporation’s chief executive offices, which is  typically viewed as the "nerve center".

\005\005..  the place designated as the principal place of business of  the corporation in its certificate of incorporation."    From this, it appears that the principal place of business would be where the  governing power of the corporation is exercised or the place of a  corporation’s Chief Executive Offices, which is typically viewed as the  nerve center or the place designated as the principal place of business of the  corporation in its incorporation under the various statutes.   Therefore, to  arrive at a finding as to which is the principal place of business, the parties  would be required to place the relevant material before the Court.  The Court  cannot arrive at a finding of a particular place being the principal place of  business at the preliminary stage of the hearing of the suit.   The defendants  have not placed any material before the Court that the Singapore Court is  another available forum which is clearly or distinctly more appropriate than  the Indian Courts.  The Court has not taken into consideration that the action  commenced by the plaintiff-appellants in Calcutta Court founded on the  facts which are most real and substantially connected in terms of  convenience or expense, availability of the witnesses and the law governing  the relevant transaction in the Indian Court.  There is no averment in the  application filed by the defendants that continuance of the action in Calcutta  High Court would work injustice to them because it is oppressive or  vexatious to them or would be an abuse of the process of the Court.  There  was no material before the Court how the trial at Singapore would be more  convenient to the parties vis-‘-vis the trial of the suit at Calcutta and that  justice could be done between the parties at substantially less inconvenience  and expense.  Nor it has been shown that stay would not deprive the  plaintiffs of legitimate personal or juridical advantage available to them.  In  the facts of the case, we are not satisfied that there is other forum having  jurisdiction, in which the case may be tried more suitably for the interest of  all the parties and for ends of justice.                The Rules of the High Court of Calcutta on the Original Side,  Appendix No. 5  under the caption ‘Admiralty Rules’, the Rules for  regulating the procedure and practice in cases brought before the High Court  at Calcutta under the Colonial Courts of Admiralty Act, 1890 were framed.  The suit was defined to mean any suit, action, or other proceedings instituted  in the said court in its jurisdiction under the Colonial Courts of Admiralty  Act.   Rule 3 provides for institution of the suit. Under this Rule,  a suit shall  be instituted by a plaint drawn up, subscribed and verified according to the  provisions of the Code of Civil Procedure.          Rule 4 is in relation to the arrest warrant after affidavit which reads as  under:  "In suits in rem a warrant for the arrest of property  may be issued at the instance either of the plaintiff  or of the defendant  at any time after the suit has  been instituted, but no warrant of arrest shall be  issued until an affidavit by the party or his agent  has been filed, and the following provisions  complied with:-

(a)     The affidavit shall state the name and  description  of the party at the whose  instance the warrant is to be issued, the  nature of claim or counter-claim, the name  and nature of the property to be arrested, and  that the claim or counter-claim has not been  satisfied.  (b)     In a suit of wages or of possession the  affidavit shall state the national character of  the vessel proceeded against; and if against a  foreign vessel, that notice of the institution  

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of the suit  has been given to the Consul  of  the State to which the vessel belongs, if  there be one resident in Calcutta and a copy  of the notice shall be annexed to the  affidavit.  (c)     In a suit of bottomry the bottomry bond, and  in a foreign language also a notarial  translation thereof, shall be produced for the  inspection and perusal of the Registrar, and  a copy of the bond, or of the translation  thereof, certified to be correct shall be  annexed to the affidavit.  (d)     In a suit of distribution of Salvage the  affidavit shall state the amount of Salvage  money awarded or agreed to be accepted,  and the name, address and description of the  party holding the same.  

Rule 6 provides that in suits in rem  no service of writ or warrant shall  be required when the attorney of the defendant waives service and  undertakes in writing to appear and to give security or to pay money into  Court in lieu of Security. Rules 27 provides for caveat to be filed against the arrest warrant.   The Court can issue the warrant for the arrest if the affidavit contains the  particulars as required under Rule 4.  Rule 6 permits the attorney of the defendant to ask for waiving of  warrant of arrest by giving an undertaking in writing to appear and to give  security.  In the present case suit was instituted on 27.3.2000 and affidavit  was filed for issuance of warrant of arrest of the vessel  along with tackle,  apparel and furniture as the same day the court directed for the arrest of the  vessel.  On 12.4.2000 letter of intention regarding furnishing guarantee on  behalf of the Owners & Parties, Vessel M.V. Fortune was filed and on the  same date the vessel was directed to be released.  In the order of release  dated 12.4.2000   the court has specifically mentioned that the order of  release was passed without prejudice to the rights and contentions of the  owner of the vessel that the suit is not maintainable.  Thus, the  maintainability of the suit filed by the plaintiff-appellants was the question  raised before the court and the court was quite aware of the fact that the  defendants are submitting to the jurisdiction of the court subject to their  rights and contentions that the suit is not maintainable in the Calcutta High  Court.  Thus, it cannot be said that at the time of the filing of the letter of  intention for furnishing guarantee parties were not aware that the question of  the jurisdiction of the court would be raised. Not only the parties the court  was also aware that the issue of jurisdiction of the court would be in  question.  The defendants have not pressed for dismissal of the suit even  when the bank guarantee was furnished on 17.5.2000. The defendants have  not asserted dismissal of suit on the ground of jurisdiction of the Court at the  outset when letter of intention was furnished by the Punjab National Bank  on their behalf nor at the time of furnishing bank guarantee and waited till  7.7.2001 to file an application.  From reading of Admiralty Rules, it appears  that it is a usual and common practice to issue warrant of arrest if the  affidavit filed under Rule 4 contains  all particulars required.  Thus, it cannot  be said that arrest of the ship was obtained by the plaintiffs suppressing  material facts which would warrant stay of suit by the Court. For the reasons aforementioned, we are of the view that the  defendants have not made out a case for stay of the proceedings of  Admiralty Suit No. 11 of 2000 pending in the Calcutta High Court and the  High Court has committed an error in passing the order of permanent stay  and discharging the bank guarantee.  The appeal is allowed with costs.  The  order of the Division Bench of the High Court is set aside.  The suit shall  now proceed in the Calcutta Court in accordance with law.