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Chunilal Mayachand and Co. Vs. A.N.L. Fernandes - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 53 of 1949 and Appeal Nos. 55 and 56 of 1949
Judge
Reported inAIR1950Bom259; (1950)52BOMLR61
AppellantChunilal Mayachand and Co.
RespondentA.N.L. Fernandes
Advocates:Jamshedji Kanga, Adv. (in No. 53) and ;P.N. Bhagwati, Adv. (in Nos. 55 and 56)
DispositionAppeal allowed
Excerpt:
.....brought on the promissory note in the high court of bombay, unless there is some strong judicial reason, the court must ordinarily grant to the plaintiff leave under clause 12 of the letters patent.;chunilal mayachand v. millard (1937) 40 bom. l. r. 252 and sewaram v. bajrangdat (1915) 18 bom. l. r. 57, followed. - - 2. it is perfectly true that the learned judge below had the discretion under clause 12, letters patent to grant or refuse leave. this decision is based on the principle that when a material part of the cause of action has arisen in bombay and this court has jurisdiction to entertain the suit, unless there is some strong judicial reason the court ought not to refuse a party the right to come to this court and have his suit heard by this court......within jurisdiction is a material part of the cause of action.2. it is perfectly true that the learned judge below had the discretion under clause 12, letters patent to grant or refuse leave. but normally and ordinarily, if a material part of the cause of action arises within jurisdiction, the learned judge should grant leave under clause 12, unless there are some judicial grounds why the ordinary practice should not be given effect to. in this case the learned judge has given reasons why he has refused to grant leave to the appellant. the one ground is that the solicitors' letter of demand did not in terms say that the moneys should be paid in bombay though notice was issued from bombay. with respect to the learned judge, he is obviously in error because in all the three eases, as i.....
Judgment:

Chagla, C.J.

1. These three appeals raise a common question, and the question is whether the learned Judge below was right in refusing leave under Clause 12, Letters Patent, for the filing of the three salts which the appellants wanted to file in this Court. All the three suits are filed on promissory notes. In Appeal No. 53 of 1949 the promissory note provides that the moneys advanced in the promissory note are payable either in Bombay, Poona or elsewhere, and in the other two appeals the promissory note provides that the moneys are payable wherever demanded. In all the three cases the attorney for the plaintiff called upon the defendant to pay the moneys due under the promissory note in Bombay. Therefore it is clear that in all these three cases moneys under the promissory note were payable in Bombay and it is also clear that in a suit on a promissory note the fact that the money a are payable within jurisdiction is a material part of the cause of action.

2. It is perfectly true that the learned Judge below had the discretion under Clause 12, Letters Patent to grant or refuse leave. But normally and ordinarily, if a material part of the cause of action arises within jurisdiction, the learned Judge should grant leave under Clause 12, unless there are some judicial grounds why the ordinary practice should not be given effect to. In this case the learned Judge has given reasons why he has refused to grant leave to the appellant. The one ground is that the solicitors' letter of demand did not in terms say that the moneys should be paid in Bombay though notice was issued from Bombay. With respect to the learned Judge, he is obviously in error because in all the three eases, as I said earlier, the solicitors' letter did specifically make a demand of these moneys in Bombay. The other ground on which the learned Judge refused leave was that according to him the promissory note constituted an unconscionable bargain inasmuch as the debtor was compelled to agree to the payment of the money wherever demanded. With respect to the learn. ed Judge, it is a matter of contract between the creditor and the debtor as to where the moneys advanced should be made payable. There was nothing before the learned Judge on which he could have come to the conclusion that the contract was unconscionable. The learned Judge has also taken the view that it is inequitable to grant leave under Clause 3.2, Letters Patent. If by this expression the learned Judge meant that the balance of convenience necessitated that the suit should be heard in Poona rather than in Bombay, then again, with respect, this was not the stage at which he should have considered this question. He should have granted leave as a matter of course under Clause 12, and if a summons had been taken out by the defendant for revocation of leave on the ground of convenience, then it would have been open to the learned Judge to consider whether leave should be revoked or not. Really no authorities are required for the proposition that leave should be ordinarily granted under Clause 12, but if such authority was needed, we might draw attention to a decision of Sir John Beaumont and Blackwell J. in Chunilal Mayachand v. Millard 40 Bom. L. R. 252: A. I. R 1938 Bom. 278, where on identical facts and, as it curiously happens, in the case of the very party who is also before us now, Sir John Beaumont took the view that where a promissory note was made payable, in Bombay, Poona or elsewhere, and the suit was filed in Bombay and leave under Clause 12 was asked for, leave should be given by the learned Judge. Engineer J. refused to give leave and the Court of Appeal reversed the judgment of Engineer J. and leave was granted under Clause 12 to enable the plaintiff to file a suit in Bombay. Macleod J. in Sewaram v Bajrangdat : AIR1916Bom227 took the view that where moneys were payable in Bombay, he would always give leave under Clause 12 and refuse leave when the moneys were payable out of Bombay. This decision is based on the principle that when a material part of the cause of action has arisen in Bombay and this Court has jurisdiction to entertain the suit, unless there is some strong judicial reason the Court ought not to refuse a party the right to come to this Court and have his suit heard by this Court.

3. The result is that all the three appeals must be allowed and the order of the learned Judge set aside and leave granted under Clause 12 for the filing of the suit. Costs, costs in the cause.


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