J.K. Biswas, J.
1. Defendant 3 in the suit has filed this application for revocation of leave granted to the plaintiffs under clause 12 of the Letters Patent and also for dismissal of the suit.
2. The case made out in the plaint is this:
The plaintiffs are motor enthusiasts and rallyists. In 1989 they circumnavigated the glove in a Contessa car manufactured by Hindustan Motors, an Indian company.
3. The circumnavigation was recorded in the Guinness Book of Records as the first and fastest one. Since a British Army team broke their record, in 1991 they undertook the circumnavigation for the second lime, and this time in a Nissan Sunny Car manufactured by Nissan Motors (GB) Limited (defendant 2). They set up a new record, which was entered in the Guinness Book of Records as the fastest circumnavigation round the world by car. Although the plaintiffs became well known globally, and were sought after for endorsement and promotion, particularly in relation to automobiles, they however, by choice and as a matter of principle, refused to endorse or promote products and services, and refrained from lending their names to advertise, sell or promote products. Defendants 1 and 2 manufacture distributes market and sell motor vehicles. Defendant 3 is the advertising agent of defendants ] and 2. On or about December 15th, 1999 one Ms. Ghislaine Bakker of defendant contracted by the plaintiffs at 12C, Camac Street, Kolkata; she wanted the plaintiffs' photographs and a short story about their trip in the Nissan Sunny car. She represented that the photographs and the write up would be used for a non commercial booklet to be published by defendants 1 and 2. Believing the representation the plaintiffs sent their photographs and newspaper reports containing details of their circumnavigation. In breach of the terms and conditions the defendants utilized the plaintiffs' photographs and the circumnavigation event to show that the plaintiffs were endorsing their products. The defendants distributed the brochures to both their actual customers and prospective customers. Their acts amounted to commission of breach of contract and fraud; and the acts also caused loss of the plaintiffs' goodwill and reputation. The plaintiff became subject matter of ridicule, and their standing was lowered in the estimation of right thinking members of the society, who started shunning their association. The loss suffered by them, if reasonably assessed, would be USS 25 million, and the defendants are jointly and severally liable to compensate them.
4. Making out a case as, briefly, narrated above, the plaintiffs prayed for a decree against the defendants for Rs. 122.5 crores. They also prayed for perpetual injunction to restrain the defendants from printing, publishing or circulating any book or printed matter containing their photographs or anything about their circumnavigation event.
5. Mr. S.N. Mookherjee, senior advocate appeared for the petitioning defendant 3. He submits that the leave is liable to be revoked and the suit should be dismissed, because (a) no part of the cause of action arose within the jurisdiction of this Court, (b) the balance of convenience is against trial of the suit in this Court, (c) since defendant 3 acted for disclosed principals, the suit against it is hit by section 230 of the Indian Contract Act, 1872 and (d) it is a vexatious litigation. Mr. Jayanta Mitra, senior advocate appears for the plaintiffs. His contention is that this application should be dismissed with costs.
6. Regarding cause of action, Mr. Mookherjee's submissions are these:
Statements in paragraphs 6 and 7 of the plaint can at best refer to an offer. As will appear from paragraph 8 the place where the contract was entered into has not been mentioned. Since the offer and acceptance took place through telephone, the contract, if there was one, would be deemed to have been made only in the Netherlands where communication of the acceptance of the offer by the plaintiffs was received by defendant 3. For this proposition the decision in Bhagwandas Goverdhandas Kedia v. M/s. Girdharlal Parshottamdas & Co. and Ors., : AIR1996SC543 is an authority.
7. The breach of the contract, if any took place outside India. As was held in A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agency, Salem, : [1989]2SCR1a in a suit for damages for breach of contract, the cause of action consists of the making of the contract and of its breach. It was also held in it that ordinarily, acceptance of an offer and its intimation result in a contract. So a suit can be filed either at the place where the contract was made, or at the place where it should have been performed and the breach occurred or in a Court within the jurisdiction of which the acceptance was communicated. Here all these happened in the Netherlands. It is therefore apparent from the statement in the plaint that no part of the cause of action for filing the suit arose within the jurisdiction of this Court.
8. Mr. Mitra's submissions, in reply, are these: The plaintiffs have filed the suit on the causes of actions-(1) breach of contract, (2) commission of fraud and (3) defamation.
9. From paragraphs 6, 7, 8 and 9 of the plaint it will appear that the offer made by the defendants was accepted by the plaintiffs by performance. Accepting the offer the plaintiffs dispatched their photographs and the details of the circumnavigation event from their residence at 12C, Camac Street, Kolkata, which is within the local limits of the Ordinary Original Civil Jurisdiction of this Court. As was held in Carlill v. Carbolic Smoke Ball Co. (1893) 1 QB 256 in a given case acceptance of an offer can take place by performance of the offeree; and the Court having jurisdiction over the place of such acceptance of the offer by performance is competent to entertain and try a suit for damages for breach of the contract. So this Court has jurisdiction to try and determine the suit.
10. As will appear from paragraphs 11, 14 and 17 of the plaint the breach of the contract took place in Kolkata. The defendants were under an obligation to send the draft of the write up in Kolkata for the plaintiffs' approval. The booklet, once printed, was also to be sent by them to the plaintiffs in Kolkata. The defendants committed breach of both these conditions of the contract. As was held in Bimal Singh Kothari and Anr. v. Muir Mills Co. Ltd. and Ors., 56 CWN 361 (DB) a part of the cause of action arises where the misrepresentation was made. In paragraphs 20 and 24 of the plaint particulars of the fraud and misrepresentation have been set out and it will appear from them that defendant 3 sent the letters to plaintiff 1 in Kolkata and believing the representations made in them to be true, the plaintiffs sent the photographs and the details of the circumnavigation.
11. In paragraphs 18, 23, 24 and 25 of the plaint details regarding defamation have been set out. The defendants destroyed the plaintiffs' amateur image. As was held in Tolley v. J.S. Fry & Sons Ltd., 1931 AC 333 acts capable of affecting one's amateur status are defamatory in nature and effect. For the acts of the defendants the plaintiffs have suffered loss in Kolkata, and more particularly at their residence, which is within the local limits of the jurisdiction of this Court. So in view of provisions in section 19 of the Code of Civil Procedure, 1908 this Court is competent to entertain the suit.
12. It was held in Ujjala Talukdarv. Netai Chand Koley, : AIR1969Cal224 that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court within the territorial limits of which that little occurs. In Hajee Adam Abdul Shakoor v. Ali Mahomed Ebrahim Shakoor and Ors., 44 CWN 460 (DB) it was held that where a plea regarding jurisdiction to entertain a suit involves difficult and important questions, such questions should not be dealt with in an application filed for revocation of leave granted under clause 12 of the Letters Patent, and the proper way is to take the plea in the written statement as a substantive part of defense. Hence the contention regarding lack of jurisdiction of this Court is liable to be rejected.
13. After going through the plaint and after considering the authorities cited at the bar, I find that Mr. Mookherjee's contentions are not acceptable.
14. The offer and the terms and conditions of the offer made by the defendants were mentioned in the two letters dated December 15th, 1999 and December 16th, 1999. By these two letters Ms. Bakker of defendant 3 requested plaintiff 1 to send the photographs and the little story about the trip, if he was agreeable to permit the defendants to use them exclusively for a non commercial booklet. Under cover of letter dated December 23rd, 1999 plaintiff 1 sent the photographs and the other details of the trip; and he sent them from Kolkata. By letter dated December 30th, 1999 defendant 3 acknowledged receipt of the parcel sent by plaintiff 4 from Kolkata. On these facts there can be no scope to doubt that the offer made by the defendants was accepted by the plaintiffs by actual performance in Kolkata. The acceptance was not communicated through telephone as contended by Mr. Mookherjee. Here communication of the acceptance of the offer was complete, the moment the parcel, containing the photographs and the details of the trip, went out of the hands of the plaintiffs.
15. I also find substantial force in the plaintiffs' case (a) that the misrepresentation leading to fraud was made in Kolkata and (b) that as a result of the innuendo they suffered loss of goodwill and reputation in Kolkata; and more particularly at their place of residence, which is within the local limits of the jurisdiction of this Court.
16. Therefore, on the facts of the case it cannot be said that no part of the cause of action for filing the suit arose within the local limits of the jurisdiction of this Court. As I am satisfied that substantial part of the cause of action for filing the suit arose within the local limits of the jurisdiction of this Court, it is not necessary to apply to this case the ratio of the Division Bench decision of this Court in Hajee Adam Abdul Shakoor v. Alt Mahomed Ebrahim Shakoov & Ors. Hence I find no reason to revoke the leave granted to the plaintiffs under clause 12 of the Letters Patent.
17. Mr. Mookherjee's next submission is this. The balance of convenience is entirely against trial of the suit in this Court. All the defendants have their offices and businesses outside india. The witnesses to be examined by the defendants are also from outside the country. All the records on which the defendants would rely will have to be brought from outside the country. There is no reason why the plaintiffs cannot go to the Netherlands for filing a suit. The witnesses named by the plaintiffs in paragraph 16 of their opposition are unnecessary witnesses, as they are not connected with the contract In any manner. As will appear from paragraph 18 of the opposition, the plaintiffs have not denied that Ms. Bakker is an important witness of the defendants. The position of law regarding balance of convenience was discussed in Bimal Singh Kothatri & Anr. v. Muir Mills Co. Ltd. & Ors. 56 CWN 361(DB); Muttra Electric Supply Co. Ltd. v. Gopal Saran Kulasresthi, 59 CWN 419; and Saudi India Navigation Line v. Asteroid Maritime Limited and Ors., 1985(2) CHN 149 (DB).
18. Regarding balance of convenience, Mr. Mitra's submissions are these. The Court shall first ascertain which the natural forum for institution of the suit is. The plaintiff may be directed to get the suit tried and determined by the forum chosen by the defendant only when the balance of convenience is overwhelmingly in favour of trial and determination of the suit in such forum. Moreover, in the instant case, the defendants have already filed their written statement, and the plea of balance of convenience taken by them is a belated one. The legal position was explained in Parasram Harnandvai v. Chitandas and Ors., : AIR1952Cal82 ; State of Punjab v. A.K. Raha (Engineers) Ltd. : AIR1964Cal418 (DB); and Sanjay Trading Company v. M/s. Dal Chemical N.V. and Ors., : AIR1978Cal397 . In the instant case the balance of convenience is overwhelmingly in favour of trial of the suit in this Court.
19. I find that there is no dispute regarding the proposition that considering the balance of convenience and inconvenience, a plaintiff in a suit though he has correctly chosen the forum, can be sent by the Court to a forum identified by the defendant as the more convenient forum to the parties for trial of this suit. In such a case neither the plaint is rejected nor is the suit dismissed. The position of law was examined in detail in the cases cited at the bar. However, it is not the mere convenience of the defendant, but the convenience of the parties that should overwhelmingly weigh in favour of trial of the suit in the forum identified by the defendant. If the forum identified by the defendant is very convenience to him, but is extremely inconvenient for the plaintiff, then from the natural forum chosen by the plaintiff he cannot be sent to the forum mentioned by the defendant.
20. In the instant case, the plaintiffs have chosen their natural forum. The fact that they are globally known of the fact that at one point of time their solicitors from the United States of America served a legal notice, would not of course, imply that they can very conveniently go to the Netherlands or to the United Kingdom for suing the defendants. Their case of loss of goodwill and reputation they can substantiate only by examining witnesses from the society they live in. Admittedly, their place of residence is in Kolkata. That they are likely to call witnesses also from outside India is no ground to hold that the balance of convenience for trial of the suit is in favour of the forum available either in Netherlands or in the United Kingdom. In my considered view, in the present case the balance of convenience is overwhelmingly in favour of trial of the suit in this Court.
21. Mr. Mookherjee's third contention is that defendant 3 acted as agent of defendants 1 and 2, and hence defendant 3 cannot be sued for damages for breach of the contract, because it acted for disclosed principals. He has relied on section 230 of the Indian Contract Act, 1872, and the decision in Raghunath Jha v. Kesori Lal and Ors. AIR 1934 Patna 269(DB).
22. In reply, Mr. Mitra has submitted that for fraud and defamation defendant 3 is jointly and severally liable with the other defendants, i.e. with its principals; and hence even assuming it cannot be sued for damages for breach of the contract, since it acted for disclosed principals, it can certainly be sued for the other causes of action.
23. On the facts of the case, I find force in Mr. Mitra's submissions. This is not an action pure and simple for damages claimed for breach of contract. Three causes of action arising from the same transaction have been joined together in the suit. Allegations of fraudulent misrepresentation are mainly against defendant 3. So it cannot be said that because defendant 3 acted for disclosed principals, it cannot be sued on any of the causes of action on which the plaintiffs have instituted the present suit.
24. Mr. Mookherjee's last submission is that the suit is a piece of vexatious litigation, because without giving any particulars the plaintiffs have sought decree for a huge amount by way of damages. He has relied on the decision in T. Arivandandam v. T.V. Satyapal and Anr., : [1978]1SCR742 and I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors., : AIR1998SC634 .
25. In reply, Mr. Mitra has submitted because the amount which the plaintiffs have claimed by way of damages is huge according to the defendant 3, it cannot be said that the suit filed by the plaintiffs is a piece of vexatious litigation. His submission is that it is entirely for the court to determine the amount to which the plaintiffs may be entitled by way of damages.
26. In my considered view, the present suit cannot be considered a piece of vexatious litigation. Whether the plaintiffs would be entitled to a decree for the amount claimed, or for any other lesser amount, is a question that would be relevant only at the time of trial and determination of the suit. The amount claimed is reasonable according to the plaintiffs though it may appea to be huge one according to defendant 3. At this stage of the suit the Court is not required to express any opinion about the damages assessed by the plaintiffs. Absence of particulars for assessing the damages by the plaintiffs is also irrelevant at the present stage of the suit. There is no reason to say that at the end of trial the plaintiffs would not be found entitled to the amount claimed.
27. The proposition of law laid down in T. Arivandandam case that a manifestly vexatious and meritless suit should be nipped in the bud, and irresponsible law suits and bogus litigation should be shot down at the earliest stage is not applicable to the present suit. It is true that I.T.C. case it was held that an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 can be taken out even after framing issues in a suit; and hence the question of delay in applying, and the fact of filing the written statement, as raised and pointed out by Mr. Mitra, would not be relevant for the purpose of deciding this application.
For the above reason, if find no merit in this application, and hence it is hereby dismissed. The costs of this application shall be the costs in the suit.
Urgent certified Xerox copy of this judgment and order, if applied for, may be supplied to the parties.