1. ' S. AHMED SARWANA, J.---Mr. Hussain Akbar (respondent herein) is a resident of Monorvoia, Liberia, while Companies General Maritime (Ship-owner/appellant No,1) is a French Company engaged in the carriage of goods and Delta Shipping Company (appellant No, 2) is the local Agent of appellant No, 1 in Pakistan. In March, 1991 respondent filed a claim in the High Court being Suit No,375 of 1991 against the appellants for recovery of Rs,56,93,113 (equal to US $ 64,200) with interest thereon for breach of contract in respect of two Bills of Lading in the following circumstances as contained in the plaint.
2. ' Respondent imported two consignments/containers each consisting of 200 Bales of printed cotton clothes from Karachi. The shipper/seller delivered the said consignments to appellant No, 2 for carriage from Karachi to Le Havre, Monrovia. Appellant No, 2 acting as Agent of appellant No, 1 issued two "Shipped on Board" Bills of Lading, dated 26th March, 1991 evidencing the contract of carriage. On or about 21-5-1990 respondent, on coming to know that appellant had failed to deliver the consignments/containers at the port of destination, made inquiries from appellant No, 2 and also came to Karachi on three different occasions and personally visited the office of appellant No, 2 and requested them to deliver the said two containers in accordance with the Bills of Lading or indicate their whereabouts but did not receive any satisfactory response. Thereafter, on 12-3-1991 he issued a legal notice to appellant No, 2 alleging that the two containers had been misappropriated by appellant No, 1 and asked them to deliver the said containers or pay him a sum of US $ 2,64,200 being the landed cost of the goods together with interest thereon but in vain.
3. Consequently, he filed the above suit against the ship-owner (appellant No, 1) and its local agent (appellant No, 2).
4. ' Appellant No,1 filed an application under Order 7, rule 10 read with section 151, C.P.C. 1C.M.A. No, 878 of 1992) for return of the plaint to the plaintiff (respondent herein) on the ground that the Bill of Lading contained an exclusive jurisdiction clause and accordingly the suit was not maintainable at Karachi. The affidavit-in-support of the application stated the fact. Of jurisdiction clause in the Bill of Lading. In the Court affidavit, the respondent asserted that the suit was maintainable and that the jurisdiction of the High Court was not ousted by virtue of the alleged clause in the Bill of Lading.
5. Appellant No, 2 also filed an application under Order 7, rule 10 read with section 151, C.P.C. (C.M.A. No, 4582 of 1992) asking the Court to return the plaint on the same ground of exclusive jurisdiction in the Bill of Lading and in the affidavit-in support thereof stated further that appellant No 2 was not liable as it had acted as an agent of disclosed principal, had nothing to do with the transport of the goods and also repeated the exclusive jurisdiction clause in the Bill of Lading. In the rejoinder- affidavit appellant No, 2 pointed out that from paragraphs Nos. 4 to 6 and 8 of the plaint it was evident that the goods had been shipped on boar,1 of a foreign vessel owned by a foreigner which was to be delivered at a foreign port in terms of the Bill of Lading and that the plaintiff (respondent herein) had himself alleged that the goods had been misappropriated by appellant No,2 and as such they were not responsible for any loss caused to the respondent.
6. ' After hearing the arguments of the learned counsel of both parties, the learned Single Judge, by order dated 11-5-1992 rejected both the applications and held that the suit shall proceed in Karachi Court.
7. ' Being aggrieved by the aforesaid order, appellants Nos.1 and 2 have filed this H.C.A., inter alia, on the ground that the order is contradictory to the principle laid down by the Supreme Court in the case of M.A. Chowdhry v. Messrs Mitsui OSK Lines, PLD 1970 SC 373 (hereinafter referred to as "the Mitsui's case").
8. ' We have heard Mr. M. H. Kazmi, learned counsel for the appellants and Mr. Muhammad Naeem, learned counsel for the respondent in support and against the impugned order. On consideration of the arguments advanced and law cited by them, our conclusion on the various points raised by them are as follows: ' The application under Order 7, rule 11, C.P.C. Read with section 151, C.P.C. Were filed by the appellants on the basis of the jurisdiction clause 25 of the Bill of Lading issued by the Carrier which reads as follows:-- "Law and jurisdiction.---(1) Applicable Law: Insofar as anything has not been dealt with by the provisions of this Bill of Lading, any claim or dispute shall be governed by the law of France.
(2) Jurisdiction. All actions under this contract of carriage shall be brought before the Tribunal de Commerce in Paris to the exclusion of the jurisdiction of a Court of any other country, unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto."
9. The Bill of Lading is a contract between the shipper and the, carrier which is binding on both parties. The effect and validity of the jurisdiction clause in a Bill of Lading was considered by the Supreme Court of Pakistan in the Mitsui's case reported in PLD 1970 SC 373 referred to above and after discussing the various judgments cited by the parties at length the Hon'ble Supreme Court of Pakistan upheld the validity of the said clause and observed as follows:-- "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 exceptions 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 actions before them the Courts still retain to themselves the jurisdiction to resume the case if the arbitration, for any reason, fails or the parties find it impossible to comply."
10. ' The above judgment is still good law and is cited as an authority both in Pakistan and other countries of the World.
11. ' It would be advantageous to reproduce here the observations of Mr. Justice Ajmal Mian (as he then was) on the sanctity of Foreign Arbitration clauses in contracts in the case of Eckhardt & Co, Marine GmbH v. Muhammad Hanif PLD 1993 Supreme Court 42 at page 52 which are as follows :-- "I may observe that while dealing with an application under section 34 of the Arbitration Act in relation to a foreign arbitration clause like the one in issue, the Court's approach should be dynamic and it should bear in mind that unless there are some compelling reasons, such an arbitration clause should be honoured as generally the other party to such an arbitration clause is a foreign party. With the development and growth of International Trade and Commerce and due to modernization of Communication/Transport systems in the world, the contracts containing such an arbitration clause are very common nowadays. The rule that the Court should not lightly release the parties from their bargain, that follows from the sanctity which the Court attaches to contracts, must be applied with more vigour to a contract containing a foreign arbitration clause. We should not overlook the fact that any breach of a term of such a contract to which a foreign Company or person is a party will tarnish the image of Pakistan in the comity of nations. A ground which could be in contemplation of party at the time of entering into the contract as a prudent man of business cannot furnish basis for refusal to stay the suit under section 34 of the Act. So, the ground like, that it would be difficult to carry the voluminous evidence or numerous witnesses to a foreign country for arbitration proceedings or that it would be too expensive or that the subject-matter of the contract is in Pakistan or that the breach of the contract has taken place in Pakistan, in my view, cannot be "a sound ground for refusal to stay a suit filed in Pakistan in breach of a foreign arbitration clause contained in contract of the nature referred to hereinabove. In order to deprive a foreign party to have arbitration in a foreign country in the manner provided for in the contract, the Court should come to the conclusion that the enforcement of such an arbitration clause would be unconscionable or would amount to forcing the plaintiff to honour a different contract, which was not in contemplation of the parties and which could not have been in their contemplation as a prudent man of business."
12. ' How the jurisdiction clause in the Bill of Lading referred to above requires that "all actions under this contract of carriage shall be brought before the Tribunal de Commerce in Paris to the exclusion of the jurisdiction of a Court of any other country, unless the carrier appeals to another jurisdiction or voluntarily submits himself hereto". In the instant case the ship-owner/appellant No,1 objected to the assumption of jurisdiction by this Court by pointing out that the action by the respondent, is not maintainable at Karachi and that the respondent should file his claim before the Tribunal de Commerce in Paris. In light of the judgment of the Hon'ble Supreme Court of Pakistan in the Mitsui's case, this Court should preserve the sanctity of the contract between the parties and treat the jurisdiction clause in the same manner as an arbitration clause, stay the action pending before it and allow the parties to resort to the forum of adjudication to which they have agreed. By staying the action before it, the Court would still retain to itself the jurisdiction to resume the case if the adjudication agreed to between the parties for any reason fails or the parties find it impossible to comply with the form of adjudication in the forum to which they had agreed. The observations of the learned Single Judge that the findings of the Hon'ble Supreme Court in the Mitsui case that the jurisdiction clause 25 of the Bill of Lading cannot oust the jurisdiction of the Pakistani Court is correct; however, the conclusion that the application for return of the plaint under Order 7, rule 10, C.P.C. Is misconceived and is liable to rejection is not borne out by the said judgment. While deciding the Mitsui case the Supreme Court also discussed the various factors that the Court should consider for exercising the discretion to stay the proceedings and direct the plaintiff to refer the claim to the agreed forum mentioned in the contract of carriage. The factors highlighted by the Supreme Court include, inter alia, as to in which country the evidence on the issues of fact is situated or more readily available; relative convenience and expense of trial between the Pakistan and the foreign Court; whether the law of foreign Court applies and, if so, whether it differs from Pakistan law in any material respect; with what country either party is connected and how closely; and whether the plaintiff would be prejudiced by having to sue in the foreign Court because he would be deprived of security for the claim, be faced with a time bar not applicable locally; unable to enforce any judgment obtained etc. He also held that the burden to satisfy the Court as to the justification for staying its proceedings should be on the person who seeks the stay of proceedings and reference of the dispute to the foreign forum. Consequently, in light of these observations the Hon'ble Supreme Court of Pakistan remanded the cases to the trial Court to consider, in accordance with the law laid down by the Supreme Court, as to whether the suits filed before it should or should not be stayed. In the instant case, appellant No,1 (ship-owner) has only referred to the exclusive jurisdiction clause and has not mentioned or elaborated the various factors highlighted by the Hon'ble Supreme Court for stay of the proceedings in this Court. Similarly respondent (Cargo-owner) has also not given any reason for not staying the proceedings and asking him to approach the forum mentioned in the Bill of Lading except that the goods were loaded on the vessel in Karachi and appellant No,2 (Ship-owner's agent) had executed and delivered a bond under section 55 of the Pakistan Customs Act, 1969. In view of this state of affairs the Court has to make its own assessment to exercise its discretion to stay the proceedings looking at the circumstances of the case. As the goods were loaded at Karachi Port, a part of the cause of action arose here and accordingly the suit has been filed properly in accordance with the provisions of the Civil Procedure Code. However, the Bill of Lading contains a jurisdiction clause which requires the cargo-owner to file his claim before Tribunal de Commerce in Paris. A copy of the written statement filed by the appellant No,1 has not been filed with this appeal; however, the learned Single Judge on the basis of the appellant's written statement has made the following observations:-- "As to the fate of the consignment, it was stated that it duly arrived at the port of destination (Monrovia) on or about 17th June, 1990 and was delivered to the Port Authorities of Monrovia for subsequent delivery to the consignee, in accordance with the normal practice, but was destroyed or looted in the civil war that engulged the town shortly after the arrival of consignment and therefore, the responsibility of the shippers (sic) had come to an end and they were not responsible for the loss of the consignment."
13. Assuming this to be correct, the proper place to decide the dispute would be Monrovia, the port of destination where the consignment was delivered to the Port Authorities and thereafter destroyed or looted in the civil war that erupted there but under the exclusive jurisdiction clause the dispute cannot be referred to Monrovia. The choice is between Tribunal de Commerce in Paris or Karachi where the present suit has been filed. Both parties will have to bring their witnesses either to Karachi or Paris and incur expenditure in doing so. It is difficult to say which place would be less inconvenient and more expensive. It is, however, clear that the dispute shall be governed by the law of France on the basis of the jurisdiction clause. The law of France on the subject will have to be proved by production of expert witness in Karachi which would entail additional expense and inconvenience. A French Tribunal would be less inconvenient and better placed to decide the dispute under French Law. The sanctity of the contract has also to be maintained and enforced as laid down by the two Supreme Court judgments referred above. In these circumstances, we are of the view that it would be proper to ask the respondent to refer his dispute for decision by Tribunal de Commerce in Paris as contemplated by the Bill of Lading.
14. The learned Single Judge also observed that the prayer in the application under Order 7, rule 10 read with section 151, C.P.C. Filed by the appellants was for return of the plaint to the respondent/Cargo-owner and therefore, the oral request by the appellants to treat the exclusive jurisdiction clause as an arbitration clause, stay the proceedings and ask the respondent to resort to the agreed forum for settlement of his dispute could not be allowed.
15. ' Mr. Justice B. Z. Kaikaus, an eminent jurist of this country, in the case of Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 at page 400 observed as follows:-- "....The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply, with them on grounds of public policy....Any system which by giving effect to the form and not the substance defeats substantiate rights is defective to that extent."
16. It is also an established law that omission to mention a provision or mentioning of a wrong provision of law does not render an application invalid or makes it fatal to the grant of relief if it is otherwise available under the law to an aggrieved party (1982 SCM R 673 and 1994 SCM R 1555). The reference to Order 7, rule 10, C.P.C. In the application is immaterial. The relief sought by the appellants could be granted by the learned Single Judge on the basis of the Mitsui's case. In any case, the appellants had mentioned section 151, C.P.C. Which unequivocally states that the Court has inherent power to make such order as may be necessary for the ends of justice. The learned Single Judge, in our opinion, should have granted the claimed relief under the inherent powers of the Court available under section 151, C.P.C. The learned Single Judge also observed that an oral request at the stage of arguments could not be allowed. Rule 111 of Sindh Chief Court Rules, inter alia, provides that motions may be made orally in matters of routine or in matters wholly within the discretion of the Judge. In the case of Sh. Ghulam Muhammad v. The Bank of Bahawalpur 1971 SCM R 148, the Supreme Court of Pakistan held that the High Court was competent to consider an oral application for condonation of delay. In the instant case, the oral request was made on the basis of the indisputable facts and documents before the Court and no further information or evidence was required. In our humble opinion, it was a proper case where the learned Single Judge should have exercised his discretion and granted the relief on oral motion.
17. On the basis of the above discussion we are of the considered opinion that the learned Single Judge did not exercise his discretion in accordance with law; accordingly we allow the appeal, set aside the impugned order dated 11-5-1992 passed by the learned Single Judge on C.M.As. Nos.
18. 4582 of 1991 and 878 of 1992 and order as follows:--
(i) The proceedings in Suit No, 375 of 1991 are stayed.
(ii) The respondent is directed to file his claim for adjudication before the Tribunal de Commerce in Paris in accordance with clause 25 of the Bill of Lading; and
(iii) In case the action filed by the respondent before the Tribunal de Commerce at Paris cannot be commenced, is barred by limitation or for any reason fails, he shall be at liberty to move an application before this Court for revival of the proceedings.
19. ' The parties will bear their own costs.