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Bank of India Vs. Mehta Brothers and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSuit No. 1182 of 1982 and Interim Application No. 3199 of 1982
Judge
Reported inAIR1984Delhi18; 1983(5)DRJ252; 1983RLR565
ActsCode of Civil Procedure (CPC), 1908 - Sections 20
AppellantBank of India
RespondentMehta Brothers and ors.
Advocates: S. Ghosh,; Nayar,; U.R. Lalit and;
Cases ReferredMessrs Dalsukh Nath Mat Firm Kamptee v. Motilal Balchand Parwar Air
Excerpt:
.....20 of the code are applicable to the high court of..........application the following objections have been raised on behalf of that defendant. (1) that the leave sought for cannot be granted as by virtue of section 120 of the code the provisions of section 20 of the code do not apply to the present proceedings ; (2) that the claim against the said defendant is bad for misguide of causes of action ; and (3) that the main relief sought for is against defendant no. 6, it is thus in the position of the main contesting defendant and, thereforee, in its discretion this court ought not to grant leave under section 20(b) of the code to prosecute that defendant in delhi.(2) so far as the first objection regarding the no applicability of the provisions of section 20 of the code is concerned it is well-settled by this court that sections 16, 17 and 20 of.....
Judgment:

Charanjit Talwar, J.

(1) The plaintiff, Bank of India, has filed this suit for recovery of Rs. 91,58,48008 against six defendants. Defendant No. I is a partnership firm carrying on the business within the jurisdiction of this Court with its head office at 342, Naya Bans, Delhi. Defendants 2 to 5 are its partners who also carry on business in Delhi. Defendant No. 6 is European Asian Bank A.G. a body corporate incorporated in West Germany and it has a branch at Bombay. By this application leave is sought by the plaintiff under Section 20(b) of the Code of Civil Procedure to institute the suit against defendant No 6 in this Court. In reply to this application the following objections have been raised on behalf of that defendant. (1) that the leave sought for cannot be granted as by virtue of Section 120 of the Code the Provisions of Section 20 of the Code do not apply to the present proceedings ; (2) that the claim against the said defendant is bad for misguide of causes of action ; and (3) that the main relief sought for is against defendant No. 6, it is thus in the position of the main contesting defendant and, thereforee, in its discretion this court ought not to grant leave under Section 20(b) of the code to prosecute that defendant in Delhi.

(2) So far as the first objection regarding the no applicability of the provisions of Section 20 of the Code is concerned it is well-settled by this Court that Sections 16, 17 and 20 of the Code are applicable to the High Court of Delhi. The amendment introduced in Section 120 of the Code in the year 1951. excluding the applicability of those sections to the High Court, applies only to .Madras. Calcutta and Bombay High Courts which were then exercisin. g ordinary civil jurisdiction. As held by a Division Bench of this court in Suit No. 51 of 1968 (State Bank of India v. Himalayan Exporters & Another) decided on 20th November, 1970, that amendment was never contemplated to cover the cases of future High Courts. I, thereforee, hold that this Court has jurisdiction to grant leave sought for in this application.

(3) In support of the second objection Mr. U.R. Lalit, learned counsel for defendant No. 6, relies on the averments in paras 16 and 18 of the plaint to show that prima fade cause of action against defendants 1 to 5 is distinct and separate from the one against defendant No. 6. He urged that from the very nature of the claim it is obvious that there is no continuity in the.ssme cause' of action between these two sets of defendants. The plea is that under Rule 3 of Order 2 of the Code defendant No. 6 cannot be joined in the present proceedings with defendants I to 5.

(4) Dr. Ghosh. learned counsel for the plaintiff, contends that the claim against defendant No. 6, is in the alternative. He urges that assuming for the sake of argument that the cause of action against defendant No. 6 is different from the one against defendants I to 6 yet, he contended, it arises out of the same series, of acts 'or transaction. It is further contended that under Rule 7 of Order I of the Code the plaintiff being in doubt as to the defendant from whom he is entitled to obtain reliefs, it is within its right to have the question of liability of defendant No. 6 determined in this very suit. I will advert to this objection after I have dealt with the third objection, viz. that in its discretion this Court ought not to grant leave under Section 20(b). of the Code to prosecute that defendant along with the other defendants.

(5) Mr. Lalit in support of the last objection contended that the' present case is not a fit case in which this Court should exercise its discretionary powers to grant leave. He relied on Messrs Dalsukh Nath Mat Firm Kamptee v. Motilal Balchand Parwar Air 1938 Nag 262, wherein Vivian Bose, J. observed as under :-

'under. 20(b). Civil P.C. where there are a number of defendants the suit may be instituted at the place where any one of them resides or carries on business for gain provided the leave- of the Court is obtained. Of course such leave cannot be given arbitrarily and even when the defendants who reside outside jurisdiction do not appear the Court is bound to consider their position before granting leave. This obligation is in no way lessened when they do appear and object and especially when, as here, the objecting defendant seems to be the real person against whom the plaintiff wants to proceed. The other defendants, I am told, have all admitted his claim so it is clear from the attitude of the plaintiff that the person against whom he really wants a decree is the only defendant who is contesting his claim.'

(6) There is no doubt that the leave sought for cannot be given arbitrarily, especially when the defendant who is not residing within the territorial jurisdiction of the Court happens to be the main defendants. In the present case however, defendant No. 6 cannot be said to be the main defendant. As noticed above, the plaintiff is seeking a decree against this defendant in the alternative only. In such a situation it cannot be said at this stage that defendant No. 6 is the main defendant. In any Case, in the above cited case the other defendants had admitted the claim of the plaintiff and defendant Moti Lal against whom leave to institute the suit was being sought, was the only contesting defendant. thereforee, that case is distinguishable on its own facts. As at present, it cannot be held that defendants I to 5 are not the contesting' defendants. As five of the defendants and the plaintiff are carrying on business at Delhi, the evidence to be produced on their behalf will be available mostly in Delhi. It' is, thereforee, in the interests of justice to grant leave sought for so as to avoid hardship to the plaintiff and these five defendants.

(7) Now coming to the second objection, in my view, this objection which is on merits ought not to be decided at this stage, Defendant No. 6 is at liberty to raise this objection and other objections, if any available to it, under the law in its written statement.

(8) The application is thus allowed with no order as to costs.


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