1. KHILJI ARIF HUSSAIN, J.---Brief facts for the purposes of deciding the application under Order VII, rules 10 and 11 filed by defendant No.1 are that defendant No.1 is a foreign company, incorporated under the laws of Germany, having its registered office in Germany, entered into a contract dated 26-8-1992, whereby he appointed plaintiff as his exclusive commercial agent and representative for the territory of Pakistan. The plaintiff in terms of the agreement negotiated the sale of defendant No. 1's products and provided services relating to the products, in turn whereof plaintiff was entitled to a commission at the agreed rates. The amount of commission, as per averments in the memo.
2. Of plaint, used to be paid by defendant No.1 to plaintiff quarterly. The plaintiff alleged that the plaintiff through its own efforts and hardworking procured sale of equipment of around Euro 5,843,694, against which defendant No.1 paid a margin sum of Euro 109,172.83, which is less than 10% commission to the plaintiff, which plaintiff was required to receive under the contract. The plaintiff also claimed that on sale of spare parts amounting to Euro 161,274.89, he received only Euro 8,781.83 from his bills. The plaintiff stated that defendant No.1 unlawfully deducted a sum of Euro 8,355.23 from his bills. An amount of Euro 676,602 was also claimed by the plaintiff towards the expenses on creating goodwill for the defendant No.1 company. On 28-6-2005, defendant No.1 terminated the contract with effect from 30-6-2005 and appointed another company as an agent for Pakistan.
3. The plaintiff claimed total sum of Euro 1,180,572.45 from defendant No.1 and filed the suit. After service of notice/summons defendant No.1 filed listed application and prayed to stay the suit and direct the plaintiff to file his claim for adjudication before the District Court of Krefeld Gernamy on the basis of foreign jurisdiction clause in their Agency Contract. The parties filed their counter- affidavits and affidavits-inrej oinder. Heard Mr. Agha Zafar Ahmed, learned counsel for the plaintiff, and Mr. Jawwad Sarwana, learned counsel for defendant No.1.
4. Mr. Jawwad Sarwana, learned counsel for defendant No.1, in support of his contentions to stay the proceeding drew my attention to clause 10(2) of the Agency Contract dated 26-8-1992/1-10-1992. I would like to reproduce clause 10 to appreciate the respective contentions of the learned counsel for the parties:-- Clause 10
(1) Projects which have been negotiated by ZSK before signing this contract and which can be concluded only after coming into force of this contract, are not subject to the regulations of this contract.
(2) The contractual relation is subject to German law. The direct or respective application of the obligatory determinations of the German Code for "Commercial Representative" is excluded.
(3) Plate of fulfilment for all obligations of this contract and exclusive jurisdiction is Krefeld. ZSK is also entitled to accuse the Agent at his competent Court.
(4) All claims resulting from the contractual relation of the Agent with ZSK will expire if they have not been claimed within a period of 6 months after being due. Learned counsel for defendant No.1 vehemently argued that clause 10(2) of the Agency Contract, confers exclusive jurisdiction to District Court Krefeld Germany, ha's been treated like a foreign arbitration clause by the various Courts and on the basis of the principle laid down in the said judgments, the suit is liable to be stayed. It was further contended by the learned counsel for defendant No.1 that the claim of the plaintiff as per laws of Pakistan is barred by time, however, in terms of the German laws is not hit by the provisions of the Limitation Act and that the plaintiff, if has any claim, can get the relief claimed from the Court at Krefeld same. It was next contended by Mr. Jawwad Sarwana, learned counsel for defendant No.1, that there is no reciprocal agreement between Government of Pakistan and Germany and accordingly if any decree is passed by the Pakistani Court, same cannot be executed in Court of Germany and for the recovery of the amount in decree, if any, the plaintiff has to approach to the Court at Germany. The learned counsel in support of his contentions relied upon the cases of M.A. Chowdhury v. Messrs Mitsui O.S.K. Lines Ltd. And 3 others PLD 1970 SC 373, CGM (Companies General Maritime) v. Hussain Akbar 2002 CLD 1528 and M/s Travel Automation (Pvt.) Ltd. v. Abacus International (Pvt.) Ltd. And 2 others 2006 CLD 497.
5. On the other hand, Mr. Agha Zafar Ahmed, learned counsel for the plaintiff, opposed the application and argued that it is more convenient for the parties to pursue their remedies before this Court, rather than the Courts at Germany where English language is not the language of Courts. Learned counsel for the plaintiff argued that clause 10(3) of the Agency Contract is uncertain and vague clause and accordingly the jurisdiction of the Court on such vague clause cannot be ousted. Without prejudice to his contentions, the learned counsel for the plaintiff argued that clause 10(3) of the Agency Contract is a void clause and proceedings cannot be stayed on the basis of such void clause and relied upon section 28 of the Contract Act. It was contended that this Court not only has -jurisdiction, but in fact appropriate Court to adjudicate the matter as the termination letter and other correspondence were in English and Pakistani Courts are experienced in dealing, English language and its interpretation than the German Courts where German language is the language of Courts. Another ground, on which learned counsel for the plaintiff opposed the application, is that the Courts at Karachi have more economical and cost effective than the District Court at Krefeld Germany and further all evidence is available at Karachi. The sales of defendant No. l's products were procured' by the plaintiff at Karachi and all expenses were incurred by the plaintiff at Karachi or other parts of Pakistan.
6. Learned counsel for the plaintiff argued that the Courts rarely disturb the plaintiffs choice of forum and will not do so unless the balance of factors is strongly in favour of defendant No.l. Learned counsel for the plaintiff in support of his contentions relied upon the case of Spiliada Maritime Corporation v. Cansulex Ltd. (The "Spiliada"), (1987) 1 Lloyd's Report page 1 and Evans Marshall and Co. Ltd v. Bertola S.A. And another, (1973) 1 WLR page 349.
7. I have taken into consideration respective arguments advanced by the learned counsel for the parties and perused the record. The plaintiff filed suit for recovery of his alleged commission, which plaintiff is entitled to- receive in terms of Agency Contract between the plaintiff and defendant No.
1. On going through the memo. Of plaint, it appears that though same is well drafted, but at the same time so far as the amount claimed, the plaintiff failed to give any particulars that how the amount has been calculated and for what period the same pertains to. Be it may be the question for the purpose of deciding listed application is whether this Court has jurisdiction in the matter or not. Clause 10(2) and Clause 10(3) of the Agency Agreement specifically provided that for the fulfilment of all obligations of the contract the exclusive jurisdiction is at Krefeld and defendant also entitled to accuse the plaintiff at his competent Court.
8. Before I would discuss various case-laws relied upon the respective parties, I would like to say that exclusive jurisdiction clause in a contract in my humble opinion is part of consideration of the agreement between the parties on the basis of which parties enter into a contract and said consideration should not be ignored lightly particularly merely at the whims of one of the parties to the contract. Learned Advocate for the plaintiff opposed the application on the ground that (i) it is more convenient and appropriate for the parties to pursue remedy before this Court than District Court of Krefeld Germany, (ii) all evidence is available at Karachi, within the jurisdiction of this Court, (iii) there no valid exclusive clause in the Contract and (iv) clause 10(3) of the Contract is not void under section 28 of the Contract Act.
9. As regards first two objections of learned Advocate for the plaintiff, due to the advancement of science and travelling facilities within last couple of years the matter of convenience and inconvenience is almost, in my humble view, has become insignificant. It is now-a-days very easy to approach from one continent to another within a couple of hours which few years back used to take much more time, the documents can be dispatched to any part of the world within couple of minutes by fax or by email which used to take various days in the past. For the purpose of recording evidence now it is not necessary that witness should travel from one place to another as recording of evidence by way of video conference has become common feature in developed countries and such facilities in appropriate cases can be availed whereas in the instant case most of the evidences in my tentative view is based upon documents. Coming to objection that there is no valid exclusive jurisdiction clause in the Contract and Article 10(3) of the agreement is void under section 28 of the Contract Act. To discover the intention of parties to a contract document/ agreement as a whole has to be read. By Agency Contract defendant No.1 appointed plaintiff as his agent exclusively representing for the territory of Pakistan for the products manufactured by him viz. Automobile Multi-Head Embroidery Machines, Card Studio, equipment for said machines and their spare parts. In terms of the agreement defendant was required to put at the disposal, of the plaintiff a sufficient quantity of leaflets, advertising material, details which are important for sale business etc. And plaintiff was obliged to observe the interests of defendant and was not authorized to conclude deals procured by him without the written confirmation of defendants, and the plaintiff was entitled for fixed commission on sale service and accessories. Clause 10(2) specifying provided that the contractual relation was subject to German law and by clause 10(3) parties agreed that for the fulfilment of all obligations of the contract Krefeld has exclusive jurisdiction. In the Court affidavit to application plaintiff himself stated that this Court is more convenient and appropriate than District Court of Krefeld Germany made it clear that so far as exclusive jurisdiction agreed to be same was given District Court of Krefeld Germany and there was no ambiguity in the mind of contracting parties in this regard, nor it was the case set up by the plaintiff. In the case of Standard Insurance Co. v. Pak Garments Ltd. 1998 SCM R 1239, the Honourable Supreme Court reproduced a quotation from the case of State Life Insurance Corporation v. Rana Muhammad Saleem (1987 SCM R 393), which is as under:-- "We have considered the arguments of the learned counsel for the parties. Under section 9 of the Code of Civil Procedure the Civil Court have jurisdiction to try all suits of a civil nature excepting the suit of which their cognizance is either expressly or impliedly barred. Under section 20 of the Code of Civil Procedure every suit is to be instituted in a civil Court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action wholly or in part arose. Under section 28 of the Contract Act every agreement by which any party thereto is restricted absolutely from enforcing the rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his 'rights, is void to that extent. It is evident from a plain reading of these provisions that there is no absolute exclusion of jurisdiction under section 9 or section in of the Code of Civil Procedure nor there is any violation of the provisions of section 28 of the Contract Act when two or more Courts have jurisdiction to try a suit and the parties mutually agree to choose or take their dispute to one of them. The civil Courts exercise their jurisdiction under the Code of Civil Procedure. If they do not possess such jurisdiction under the Code it cannot be conferred on them through a mutual agreement of the parties to a dispute. But in a situation where two or more Courts have jurisdiction to try a suit under the Code of Civil Procedure, then an agreement between the parties that any dispute arising between them shall be tried only by one of such Courts -could not be considered contrary to public policy as it would neither contravene the provisions laid down in section 28 of the Contract Act nor would it violate in any manner the provisions of section 9 or section 20 of the Code of Civil Procedure."
10. In the case of New India Assurance Co. Ltd. And others v. T. K. Nanjunda Setty and Sons and others (AIR 1964 Mysore 147), while considering a clause in n agreement given jurisdiction to a particular Court, it was held that what is rendered void by the first part of section 28 is an agreement which restricts absolutely any party from enforcing, by the usual legal proceedings in the ordinary tribunals, his right under or in respect of any contract. It does not however, debar a party from agreeing to have its claim instituted and settled in one only out of the two or more competent Courts having territorial jurisdiction in respect of disputes. In the case of M. A. Chowdhury v. M/s Mitsui O.S.K. Lines Ltd. And 3 others (PLD 1970 SC 373), while dealing with the clause which reads as under:-- "All actions under this contract of carriage shall be brought before the Court at Rotterdam and no Court shall have jurisdiction with regard to any such action unless the carrier appeals to another jurisdiction voluntarily submit himself thereto."
11. After discussing number of case-law on the subject the Honourable Supreme Court held as under- "Having said this, however, I am of the opinion that in order to preserve the sanctity of contracts I ought also to hold, as was done in the earlier cases in Great Britain that such foreign jurisdiction clauses, even when they purport to give jurisdiction to a Court in a foreign country; are really in the nature of arbitration clauses which come within the exception to section 28 of the Contract Act and, therefore, should be dealt with in the same manner as other arbitration clauses. In the case of an arbitration it has to be remembered that the jurisdiction of the Courts is not altogether ousted, for, the Courts merely stay their hands to allow the parties to resort to the form of adjudication to which they have previously agreed. By only staying the applications before them the Courts still retain themselves the jurisdiction to resume the case if the arbitration, for any reason, fails or the parties find it impossible to comply with the form of adjudication to which they had agreed. This was also the view taken in the case of Malik Ali Akbar, which I approve."
12. In the case of CGM (Companies General Maritime) v. Hussain Akbar (2002 CLD 1528), and M/s Travel Automation (Pvt.) Ltd v. Abacus International (Pvt.) Ltd. 2006 CLD 497, it was held as under:-- A learned Division Bench of this Court relying upon the pronouncement of the Honourable Supreme Court in the case of M. A. Chowdhury (supra) directed the respondent to file his claim for adjudication before the Tribunal de Commerce in Paris in accordance with clause 25 of the Bill of Lading.
13. Mr. Agha Zafar - Ahmed, learned Advocate for the plaintiff, relied upon the case of [19871 1 Lloyd's Rep.1, wherein it was held that, "on the facts and taking the convenience of the_ parties and witnesses probably titled the scales towards British Columbia as the forum, but certainly did not show that an English Court was distinctly more suitable for the ends of justice". In the said judgment it was held that:- "In order to justify a stay two conditions must be -satisfied, one positive and the other negative; (a) the defendant must satisfy the Court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English Court".
14. Learned Judge further held that:-- "In my opinion, having regard to the authorities (including in particular the Scottish authorities), the law at present be summarized as follows:--
(1) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the Court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. In which the case may be tried amore suitably for the interests of all parties and ends of justice."
15. The plaintiff has not disputed that the relief, as asked in this suit, cannot be granted by District Court of Krefeld and will or may deprive him from some legitimate judicial advantage. In the case of Evans Marshall and Co. Ltd. v. Bertola S.A. And another (1 W.L.R. 349), it was held:- "I now turn to the first of the main points with which this appeal is concerned. The question is whether the Courts in this country should permit the continuance of these proceedings against Bertola in view of clause (15) of the agreement, which provides for "law claims" to be submitted to the Barcelona Court of Justice. It appears likely that at trial there may be a contest as to whether or not that clause is an "exclusive jurisdiction clause": for the purposes of this appeal, however, it was conceded on behalf of the plaintiffs that it should be so regarded and that accordingly the burden lying upon the plaintiffs when asserting that they can successfully claim to continue proceedings here is heavier than it would be if the jurisdiction given to the Barcelona Court had not been exclusive. The authorities relating to this aspect of the case were cited in the first instance judgment. Thereupon the Judge rightly decided to apply the most stringent of the tests laid down in them. He referred to the judgment of Diplock Ltd. In Mackendov. v. Feldia A.G. [19671 2 Q.B. 590, 604, where he said, "I... Should require very strong rasons to induce me to permit one of them" i.e. The parties - "to go back on his word", and of Lord Denning M.R. In YTC Universal Ltd. v. Trans Europa Compania de Aviaeron S.A. October 7, 1968, C.A.; Bar Library Transcript No.366, where he said, "effect should usually be given to the "agreement, though there may be exceptional cases where a case may be allowed to proceed in these Courts despite such agreement". The Judge went on to say that, having taken all relevant matters into consideration, he nevertheless concluded. "without hesitation that for a number of reasons this is a proper case for the exercise of jurisdiction under Ord. 11 in relation to both writs, because of the special circumstances of this case."
16. In my judgment, too, this is plainly a case in which jurisdiction under Ord.11 should be exercised as regards both concurrent writs in favour of the plaintiffs. The reasons for this course being adopted were fully set out in the judgment of Kerr J. (supra at pp. 363B 364F) and can be summarized as follows by quoting from the judgment. First, ".. This is a case of which the substance is exclusively concerned with this country. It is a battle about the proper marketing of sherry in the United Kingdom."
17. Secondly, "Whatever may be the right view about all, these allegations, all the essential witnesses concerning these issues are here, and all these issues essentially relate to the marketing conditions of sherry in this country and nowhere else."
18. Thirdly, "Having chosen to give battle about the plaintiffs' marketing achievements in this country, Bertola have not merely purported to terminate the agreement but also to appoint another distributor, I.S.I., in the place of Evans Marshall. In doing this they must have known that it would be likely, if not certain, as happened, to provoke a bitter conflict between Evans Marshall and I.S.I. In the sherry market of the UnitedKingdom over this brand of sherry. Predictably, Evans Marshall have then instituted proceedings against both I.S.I. And Bertola to restrain them from continuing with this course and to claim damages. In these circumstances it seems to me that it does not lie in the mouth of Bertola to say that the conflict between Evans Marshall and Bertola should be separated from that between Evans Marshall and I.S.I. But Evans Marshall's claims against I.S.I. Which were provoked by the actions of Bertola, have nothing to do with the Court at Barcelona. It follows that Bertola are therefore not only a proper and necessary party to Evans Marshall's proceedings against I.S.I. Within Ord.11, but that Bertola have brought this state of affairs about by their own actions in purporting to terminate the agreement and to appoint I.S:I. Instead. How then can Bertola be heard to say that Evans Marshall must fight one battle here and the other in Spain?
19. Forthly, "..It is clear from the evidence that Spanish law does not differ from English law in the relevant respects to any substantial extent."
20. He had previously brought out the fact that in so far as Bertola seeks to establish that the agreement is void as being in unreasonable restraint of trade they rely on English law, which, I would add, involves difficult and controversial contentions. He accordingly expressed the view that:- "In all these circumstances I consider that it would be unjust if Bertola could on the one hand take the course which they have taken in relation to the agency in this country, but at the same time avoid the jurisdiction of the Courts of this country. I believe that the discretion which the English Courts have, notwithstanding a foreign jurisdiction clause exclusive or otherwise is designed to avoid unjust results such as those."
21. As I have held hereinabove that with the advancement of science and technology the question of convenience and inconvenience of party is not so material to wriggle out from the validly constituted agreement 'between them, I would also like to mention here that there is no reciprocal agreement between the Government of Pakistan and the Government of Germany and as such even if any decree is passed by this Court same cannot be executed in the Court of Germany as foreign judgment. For the foregoing reasons listed application is granted and the proceedings in the suit are stayed. The plaintiff, if so advised, can approach for adjudication of his claim before the Court at Krefeld, Germany.