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Srei Capital Markets Limited Vs. Grid Co. Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Judge
AppellantSrei Capital Markets Limited
RespondentGrid Co. Ltd.
Excerpt:
c.s.no.76 of 2007 in the high court at calcutta ordinary original civil jurisdiction srei capital markets limited versus grid co.ltd.for the plaintiff : mr.mr.mr.mr.surajit nath mitra, sr.advocate anuj singh, advocate shounak mitra, advocate soumabho ghosh, advocate for the defendant : mr.mr.mr.mr.amitava das, advocate debdut mukherjee, advocate n. srinivas, advocate m.k.singh, advocate hearing concluded on : august 26, 2016 judgment on : september 8, 2016 debangsu basak, j. the plaintiff has sought a money decree on account of fees allegedly remaining unpaid for services rendered. according to the plaintiff, it was engaged for the purpose of syndication of loan to be availed of by the defendant. the plaintiff had participated in the tender process and was the second lowest bidder. since.....
Judgment:

C.S.No.76 of 2007 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction SREI Capital Markets Limited versus GRID Co.LTD.For the Plaintiff : Mr.Mr.Mr.Mr.Surajit Nath Mitra, Sr.Advocate Anuj Singh, Advocate Shounak Mitra, Advocate Soumabho Ghosh, Advocate For the Defendant : Mr.Mr.Mr.Mr.Amitava Das, Advocate Debdut Mukherjee, Advocate N.

Srinivas, Advocate M.K.Singh, Advocate Hearing concluded on : August 26, 2016 Judgment on : September 8, 2016 DEBANGSU BASAK, J.

The plaintiff has sought a money decree on account of fees allegedly remaining unpaid for services rendered.

According to the plaintiff, it was engaged for the purpose of syndication of loan to be availed of by the defendant.

The plaintiff had participated in the tender process and was the second lowest bidder.

Since the fiRs.lowest bidder did not suit the plaintiff, the contract was awarded to the plaintiff.

The plaintiff had acted in terms of the contract.

The plaintiff had mobilized a sum of Rs.600 crores.

The plaintiff had raised a bill for the syndication fees on the defendant.

The defendant had made a part payment in respect thereof.

In the present suit the plaintiff has, therefore, sought for a balance of the bill amount.

The defendant has filed a written statement denying the material allegations in the plaint.

The defendant has also taken the point of lack of jurisdiction of this Hon’ble Court to try the present suit.

By an order dated June 19, 2015 five issues were framed.

Such issues are as follows:1.

Whether this Hon’ble Court has any jurisdiction to entertain the present suit or the suit is otherwise maintainable, as framed or at all?.”

2. Was the syndication fees as payable to the plaintiff dependent upon the amount actually received by the defendant, as alleged in the written statement and particularly in paragraph 12 thereof?.”

3. Did the plaintiff not perform its obligations under the contract between the parties, as alleged in paragraph 15 of the written statement?.”

4. Did not the financier make disbursement of any portion of the second tranche of the said sum of Rs.300 crores in spite of the request of the defendant and was the plaintiff fully aware of the same, as alleged in the paragraph 19 of the written statement?.”

5. What relief, if any, is the plaintiff entitled to?.

The plaintiff has adduced evidence through one witness.

The defendant did not produce any witness.

Learned Senior Advocate for the plaintiff has referred to the pleadings of the parties.

He has referred to the plaint case and the defence taken by the defendant in its written Statement.

He has referred to Exhibit ‘D’ being the letter dated August 2, 2003 issued by the defendant to the plaintiff.

He has submitted that, Exhibit ‘D’ is the contract between the parties.

He has referred to the clause with regard to syndication fees in Exhibit ‘D’ and has submitted that, the defendant is liable to pay one time syndication fees of 0.50 per cent exclusive of taxes of the amount mobilized and disbursed.

He has referred to various sub-clauses under the syndication fees of Exhibit ‘D’ and has submitted that, the word ‘and’ between mobilized and disbursed has to read as disjunctive in the facts of this case.

The word ‘and’ can be read as disjunctive in a given situation.

He has submitted that, the plaintiff has mobilized the sum of Rs.600 crores as required of it to do in terms of the syndication agreement being Exhibit ‘D’.

It is due to the failure on the part of the defendant that apart from the fiRs.tranche of Rs.300 crores, the defendant has failed to receive the next tranche of Rs.300 crores.

The failure on the part of the defendant to receive the second tranche of Rs.300 crores does not mean that, the plaintiff would be denied the syndication fees in terms of Exhibit ‘D’.

He has referred to various correspondence exchanged between the parties particularly Exhibits ‘M, ‘O’, ‘P’, most parts of Exhibit ‘U’ as well as Exhibits ‘V’ and ‘L’.

He has referred to the bill raised by the plaintiff upon the defendant being Exhibit ‘N’.

He has submitted that, the bill being Exhibit ‘N’ was received by the defendant unconditionally.

The defendant had made a part payment in respect of the bill raised.

The defendant is liable to pay the balance of the bill amount.

With regard to the interpretation of the clause relating to syndication fees in Exhibit ‘D’, the learned Senior Advocate for the plaintiff has submitted that, although the defendant has taken a point with regard thereto in the written statement, the defendant did not lead any evidence in respect of its contentions that, the clause has to be read in the manner as contended on behalf of the defendant.

Learned Senior Advocate for the plaintiff has referred to Section 114(g) of the Evidence Act, and has submitted that, in absence of the defendant leading any evidence, the case made out by the plaintiff with regard to the syndication fees under the Exhibit ‘D’ should be accepted.

In support of such contention he has relied upon 63 Calcutta Weekly Notes page 258 (Pranballav Saha & Anr.v.Tulshi Bala Dassi & Anr.) and 1999 Volume 3 Supreme Court Cases page 573 (Vidhyadhar v.

Manikrao & Anr.).With regard to the issue of jurisdiction of the Court to try the suit learned Senior Advocate for the plaintiff has referred to part of Exhibit ‘U’ being the letter dated February 12, 2007 issued by the plaintiff upon the defendant, calling upon the defendant to pay the amount in terms of the bill being Exhibit ‘N’ to the office of the defendant within the territorial jurisdiction of this Hon’ble Court.

He has referred to Exhibit ‘V’ being the demand notice issued by the Advocate for the plaintiff and has submitted that, as such demand notice was issued from a place within the jurisdiction of this Hon’ble Court, a part of the cause of action of the instant suit has arisen within the jurisdiction of this Hon’ble Court and, therefore, this Hon’ble Court has the jurisdiction to try the suit.

He has referred to paragraphs 18 and 23 of the plaint and question No.148 and the answer thereto by the witness of the plaintiff and has submitted that, the witness of the plaintiff has stated that, the statements made in paragraph 18 of the plaint are true and correct.

He has submitted that, paragraph 18 of the plaint the plaintiff has contended that, discussions took place between the plaintiff and the defendant at the office of the plaintiff within the territorial jurisdiction of this Hon’ble Court.

The witness of the plaintiff, in his examination-in-chief has stated that, such statements in the plaint are true and correct.

The defendant did not cross-examine the witness of the plaintiff on such issue.

The defendant has not produced any independent witness to controvert the case of the plaintiff.

He has relied upon 1994 Volume 4 Supreme Court Cases page 711 (Oil and Natural Gal Commission v.

Utpal Kumar Basu & Ors.) in support of his contentions.

Learned Advocate for the defended has contended that, this Hon’ble Court has no jurisdiction to try the instant suit.

He has referred to part of Exhibit ‘U’ being the letter dated October 8, 2004 and has submitted that, such letter was issued by the plaintiff from an office outside the territorial jurisdiction of this Hon’ble Court.

Such letter does not refer to any discussions taking place at the office of the plaintiff within the territorial jurisdiction of this Hon’ble Court.

He has submitted that, therefore, the only discussion on record is latest by October 8, 2004 and that such discussion did not happen within the territorial jurisdiction of this Hon’ble Court.

He has submitted that, paragraph 18 of the plaint and the evidence of the witness of the plaintiff has to be disbelieved in view of the contents of the letter dated October 8, 2004 being part of Exhibit ‘U’.

He has also referred to another letter dated February 12, 2007 being a part of Exhibit ‘U’ which is the demand notice of the plaintiff.

He has submitted that, for the fiRs.time in such letter, the plaintiff seeks payment at an office within the jurisdiction of this Hon’ble Court.

He has questioned the creditability of the witness in view of the documents made available on record.

Learned Advocate for the defendant has referred to the demand notice issued on behalf of the plaintiff being Exhibit ‘V’ through their Advocate.

He has submitted that, issuance of a letter by the Advocate from within the territorial jurisdiction of the Court does not tantamount to a cause of action having arisen in favour of the plaintiff, for the plaintiff to institute a suit at the place from where the notice of demand through the Advocate had been issued.

On merit learned Advocate for the defendant has submitted that, the plaintiff was required to swap a loan in accordance with the contract between the parties.

The plaintiff did not do so.

In fact, the parties were corresponding between themselves with regard to the inability of the defendant to swap the loan of the contract.

Ultimately the plaintiff did not do it.

The plaintiff did not succeed in swapping the loan.

The defendant having paid such portion of the syndication fees as are receivable by the plaintiff with regard to the quantum of the loan disbursed, no other amount is due and payable by the defendant to the plaintiff.

The issues raised in the instant suit have two parts.

One part relates to the claim of the plaintiff and the other relates to the jurisdiction of the Court to try the suit.

For the sake of convenience, the issues being issue Nos.2 to 5 which relate to the merit of the claim of the plaintiff are taken up together first.

The defendant had floated a tender for selecting a merchant banker for the purpose of syndication of loan facilities for the use of the defendant.

The lowest tenderer being unable to proceed with the mobilization of the financial facilities required by the defendant, the contract was awarded in favour of the plaintiff as it was the next lowest bidder.

By a letter dated June 2, 2003 the defendant had awarded the contract to the plaintiff.

The plaintiff had, by its letter dated June 5, 2003 being Exhibit ‘B’, raised various queries with regard to the terms of the contract.

The defendant had issued clarifications about queries by the writing dated June 19, 2003 being Exhibit ‘C’.

The parties had discussions amongst themselves as would appear from the correspondence.

In view of such correspondence and the discussions had between the parties, the defendant had cancelled the award of the contract dated June 2, 2003 being Exhibit ‘A’ through the writing dated August 2, 2003 being Exhibit ‘E’.

The defendant had, by the writing dated August 2, 2003 being Exhibit ‘D’ awarded the contract in favour of the plaintiff.

The relevant clause of the contract being Exhibit ‘D’ in the present suit is as follows:“Syndication Fee: (a).One-time syndication fee of 0.50% (exclusive of taxes) of the amount mobilized and disbursed.

(b).For every reduction in interest rate of 0.25% from the upper cap of 11.25% the additional incentive would be 0.10% over and above the existing rate of fees of 0.50%.

Fee shall be released only after disbursement of the fiRs.tranche under a pre-approved disbursement schedule.” The plaintiff had accepted the terms and conditions of Exhibit ‘D’.

The defendant by a writing dated November 3, 2003 being Exhibit ‘G’ forwarded the requisite information memorandum to the plaintiff.

The defendant had also forwarded the financial projection of the loan period by a writing dated November 3, 2003 being Exhibit ‘H’.

By a writing dated February 12, 2004 being Exhibit ‘K’ the defendant had extended the mandate of the loan syndication.

The plaintiff had identified Housing and Urban Development Corporation Limited (HUDCo.as the lender for the financial assistance.

Correspondence was exchanged between HUDCO and the defendant being Exhibit ‘F’ and Exhibit ‘I’.

The three parties had met on February 3, 2003 for the purpose of the loan as appearing from Exhibit ‘J’.

HUDCO had issued a sanction letter dated March 21, 2004 being Exhibit ‘L’ in favour of the defendant.

The defendant had executed various documents in favour of HUDCO as will appear from the writing dated March 31, 2004 being Exhibit ‘M’.

The financial assistance of the defendant was for Rs.600 crores.

The plaintiff was required to arrange for such financial assistance of Rs.600 crores as appearing from Exhibit ‘D’.

The defendant admits to have received a sum of Rs.300 crores.

The defendant claims that, the plaintiff was aware of the requirement of the defendant that, there has to be swapping of loan of other lenders of the defendant with the presently identified lender.

The swapping of the loan was not facilitated by the plaintiff and, therefore, the defendant could not receive the balance Rs.300 crores.

According to the plaintiff, it had done all that was required to do to mobilize Rs.600 crores.

The plaintiff having mobilized the Rs.600 crores, it was entitled to the syndication fees in terms of Exhibit ‘D’.

It was the failings of the defendant which had prevented the defendant from receiving the balance Rs.300 crores.

Under Exhibit ‘D’ the plaintiff was mandated to undertake a term loan syndication.

The plaintiff had identified HUDCO and had caused HUDCO to issue a loan sanction letter dated March 21, 2004 being Exhibit ‘L’.

The loan sanction letter being Exhibit ‘L’ of HUDCO refers to various terms and conditions.

One of such terms is that, the loan would be granted only after resolution of default in Government Guaranteed Schemes in the State of Orissa and that, HUDCO receives a confirmation from the previous lenders that, the proposed loan amount was not a non-performing asset during the previous three years and that, the defendant was not a willful defaulter.

The plaintiff was made aware of the financial conditions of the defendant.

In fact, in evidence the witness of the plaintiff was emphatic and categorical in saying that, the plaintiff had undertaken an exercise to look into the financial conditions of the defendant and its requirements.

The plaintiff was also forwarded with the information memorandum for loan syndication programme through Exhibit ‘G’.

The plaintiff had in its possession the financial projections of the defendant apart from the information memorandum.

The plaintiff, therefore, was well-aware that the defendant had previous lendeRs.The plaintiff was also well-aware that there was a requirement for loan swapping.

The loan swapping issue was raised at the behest of the defendant.

The loan swapping issue was sought to be addressed by the defendant as would appear from Exhibits ‘P’, ‘Q’, ‘R’, ‘S’ and ‘T’ amongst otheRs.The witness of the plaintiff has dwelt on the loan swapping in answer to various questions such as question Nos.109, 113 114 to 119 and 124.

In answer to question No.124 the witness of the plaintiff has stated that, the terms of the contract entered between the defendant and HUDCO included loan swapping.

The loan swapping did not happen.

In absence of loan swapping the balance Rs.300 crores was not disbursed by HUDCO to the defendant.

The syndication fee clause of Exhibit ‘D’ requires the defendant to pay the syndication fee of the amount mobilized and disbursed.

The plaintiff had mobilized Rs.600 crores.

Out of Rs.600 crores, Rs.300 crores was disbursed.

The plaintiff, however, could not have the balance Rs.300 crores disbursed to the defendant.

The loan swapping not having taken place, the question of disbursement of Rs.300 crores did not arise.

The syndication fee clause of Exhibit ‘D’ obliges the defendant to pay the syndication fee on mobilization disbursement of the amount.

The clause contemplates payment of one time syndication fee in the event of mobilization and disbursement.

The clause contemplates release of the fees only after disbursement of the fiRs.tranche under a pre-approved disbursement schedule.

Disbursement is, therefore, an essential component which triggers the liability of the defendant to pay the syndication fee.

Admittedly, disbursement of Rs.300 crores took place.

The balance Rs.300 crores was never disbursed.

Therefore, the defendant is not liable to pay the one time syndication fee at all for Rs.300 crores not disbursed.

The contention that, the defendant did not put forward a case that, the syndication fee is payable only after disbursement has no basis.

True the defendant did not lead any evidence.

However, the liability of the defendant arises, on a true and proper construction of the syndication fee clause of Exhibit ‘D’ on disbursement and not on mobilization alone.

The contract is marked as an exhibit at the instance of the plaintiff.

The clauses of such contract require interpretation.

The syndication fee clause of Exhibit ‘D’ has been interpreted in the manner as stated.

Therefore, such a contention of the plaintiff does not assist it.

Pranballav Saha (supra) has dealt with a situation where a defendant did not adduce any evidence with regard to the reputation of a house.

The provisions of Section 114 of the Indian Evidence Act, 1872 were invoked in the facts scenario obtaining therein.

Vidhyadhar (supra) has discussed the provisions of Section 114 of the Indian Evidence Act, 1872 with regard to a title suit.

Both the authorities are of the view that where a party to the suit does not appear in the witness-box and states its own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.

The instant case involves interpretation of the syndication fee clause of Exhibit ‘D’.

The claim of the plaintiff that it is entitled to the syndication fee only on mobilization does violence to the user of the words in the clause.

Such a claim if accepted would render the words ‘and disbursed’ redundant.

In view of the discussions above, the second, third and the fourth issues are answered in the affirmative, in favour of the defendant and against the plaintiff.

The plaintiff is not entitled to any relief.

The fifth issue is answered accordingly.

The fiRs.issue relates to the maintainability of the suit and the jurisdiction of the Court to try the suit.

The suit is for recovery of money due on account of services rendered.

The suit is otherwise maintainable should the Court is found to have jurisdiction to try the suit.

The plaintiff has pleaded that, the Court has jurisdiction to try the suit in paragraphs 18, 23 and 24 of the plaint.

The principal claim in the suit being in excess of Rs.10 lakhs, this Hon’ble Court has the pecuniary jurisdiction to try this suit.

The plaintiff has relied upon two documents namely, a letter dated February 12, 2007 being part of Exhibit ‘U’ and the Advocate’s letter dated March 14, 2007 being Exhibit ‘V’ as instances of part of cause of action arising within territorial jurisdiction of this Hon’ble Court to attract the jurisdiction.

Apart from the two letteRs.the plaintiff, in paragraph 23 of the plaint has stated that, the discussions relating to the matter were held at the office of the plaintiff within the jurisdiction of this Hon’ble Court.

The sole witness of the plaintiff in evidence, particularly in answer to question No.148 has stated that, the statements made in paragraph 23 of the plaint are true and correct.

The defendant did not cross-examine the witness of the plaintiff on such issue.

In Utpal Kumar Basu & ORS.(supra) it has been held that, “6.

It is well settled that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court.

In Chand Kour v.

Partab Singh Lord Watson said: "..the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff.

It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts.

In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial.

To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.

Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.

………………………………………………………………… 8.

From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction.

According to NICCo.it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta.

In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently.

When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice.

As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27-1-1993.

Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer.

The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi.

Of course, the execution of the contract work was to be carried out at Hazira in Gujarat.

Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action.

So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action.

Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 271-1993.

We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.” (emphasis supplied) Utpal Kumar Basu & ORS.(supra) has held that, a Court ought not to assume jurisdiction solely on the ground that, the plaintiff before it resides in or carries on business from a place within the jurisdiction of such Hon’ble Court.

Territorial jurisdiction of this Hon’ble Court is governed by clause 12 of the Letters Patent, 1865 which is as follows:“12.

Original jurisdiction as to suits:- And we do further ordain, that the said High Court of Judicature at Fort William in Bengal, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immoveable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case leave of the Court shall have been fiRs.obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the Defendant at the time of commencement of the suit shall dwell, or carry on business, or personally work for gain within such limits;……………………..” The plaintiff has obtained leave under Clause 12 of the Letters Patent, 1865 on April 9, 2007.

The issue of jurisdiction is under consideration after the parties have been allowed to adduce their respective evidence.

In view of the averments made in paragraph 23 of the plaint to the effect that, a part of the cause of action had arisen within the jurisdiction of this Hon’ble Court and that discussions took place between the parties within the jurisdiction of this Hon’ble Court, it could not be said, taking such statements to be true and correct, that, this Hon’ble Court does not have territorial jurisdiction to try the suit.

That situation continued till the commencement of trial of the suit.

At the trial, it is for the plaintiff to substantiate the allegations made in the plaint with regard to jurisdiction, by cogent evidence.

The plaintiff has relied upon the principle that, a debtor must seek the creditor in contending that this Hon’ble Court has territorial jurisdiction in respect of the suit.

The presumption that, the debtor must seek the creditor is rebuttable.

If it is demonstrated that, the creditor had accepted payment at a place other then the place where it is suing, then the plaintiff is not entitled to rely on such principle to attract the territorial jurisdiction of the Court from where it is suing.

In such a case, the plaintiff by accepting payment at some other place is estopped from contending that, the debtor must pay the creditor at the place of choice of the creditor other than the place where the creditor had received the payment.

In the present suit, the issue of jurisdiction is being decided after closure of evidence of the parties.

The evidence of the parties with regard to jurisdiction requires consideration.

The plaintiff has referred to the averments made in the plaint and the two letters being dated February 12, 2007 which is a part of Exhibit ‘U’ and the letter dated March 14, 2007 being Exhibit ‘V’ as also the oral evidence of the sole witness of the plaintiff in support of the contention that, this Hon’ble Court has jurisdiction.

The only letter emanating on behalf of the plaintiff from within the territorial jurisdiction of this Hon’ble Court is Exhibit ‘V’ being the demand notice, issued on behalf of the plaintiff by its Advocate.

Such demand notice, in my view, following the ratio laid down in Utpal Kumar Basu & ORS.(supra).does not form an integral part of the cause of action of the plaintiff for the present suit.

An Advocate is an agent acting on behalf of a disclosed principal while issuing the demand notice.

In view of Section 230 of the Indian Contract Act, 1872 an agent of a disclosed principal cannot be sued as it was acting on behalf of a disclosed principal, nor can it sue.

The Advocate acting as such cannot bring file a suit in its own name for the transactions alleged in the plaint, unless the debt has been assigned, which is not the case here.

Issuance of notice by an Advocate from a place within the territorial jurisdiction of the Court simplicitor will not permit such a Court to assume jurisdiction.

Such a couRs.of conduct, if permitted, would then allow a litigant to have an Advocate of its choice issue a letter from a place which would be inconvenient to the defendant and then sue the defendant at the Court which has jurisdiction over the place of issuance of notice so as to cause maximum inconvenience to the defendant.

In any event, the notice of demand being Exhibit ‘V’ does not form an integral part of the cause of action which can be said to have arisen within the jurisdiction of this Hon’ble Court, in the facts of this case.

So far as the letter dated February 12, 2007 being a part of Exhibit ‘U’ is concerned, such letter was again written by the plaintiff from its registered office outside the territorial jurisdiction of this Hon’ble Court.

By such letter for the fiRs.time the plaintiff had made a request to the defendant to send the payment at the branch office of the plaintiff within the territorial jurisdiction of this Hon’ble Court.

The only inference possible from the correspondence exchanged between the parties is that, no discussion took place between the parties within the territorial jurisdiction of this Hon’ble Court.

The defendant is situated outside the territorial jurisdiction of this Hon’ble Court.

The loan was made available to the defendant from a place outside the territorial jurisdiction of this Hon’ble Court.

The negotiations took place outside the territorial jurisdiction of this Hon’ble Court.

The branch office of the plaintiff was never involved in the process of negotiations.

The plaintiff had raised its bill being Exhibit ‘N’ from its registered office outside the territorial jurisdiction of this Hon’ble Court on the defendant at its office again outside the territorial jurisdiction of this Hon’ble Court.

The defendant had paid the plaintiff at a place outside the territorial jurisdiction of this Hon’ble Court.

The plaintiff has not led any evidence to establish that, any payment was made by the defendant to the plaintiff at a place within the territorial jurisdiction of this Hon’ble Court.

The letter dated February 12, 2007 being part of Exhibit ‘U’ is an unilateral request by the plaintiff to the defendant to make further payment at the branch office of the plaintiff within the territorial jurisdiction of this Hon’ble Court.

No evidence has been produced to suggest that, the defendant had made any payment subsequent to the letter dated February 12, 2007 to the plaintiff at such branch office of the plaintiff or that the defendant had accepted the request of the plaintiff to make further payment at such branch office.

The principle that the debtor must seek the creditor looses significance when it can be demonstrated that the debtor had made part payments at a place other than the place where the plaintiff is suing on the basis of such principle.

In the present case, the payment was made by the defendant from its office to the registered office of the plaintiff both outside the territorial jurisdiction of this Hon’ble Court.

In such facts, it is no longer permissible for the plaintiff to sue from a Court having jurisdiction over its branch office on the principle that the debtor must seek the creditor.

The creditability of the answer given to question No.148 of the sole witness of the plaintiff has been questioned on behalf of the defendant.

By a letter dated October 8, 2004 being a part of Exhibit ‘U’ the plaintiff had referred to a number of letters exchanged between parties.

It had stated about the discussions for the disbursement of the balance Rs.300 crores.

The letter had been written from the registered office of the plaintiff situates outside the territorial jurisdiction of this Hon’ble Court and is addressed to the defendant with a copy marked to HUDCO both outside the territorial jurisdiction of this Hon’ble Court.

It appears from the letters exchanged between the parties and marked Exhibit ‘U’ collectively that, so far as the letters written by the plaintiff are concerned, they were issued from the registered office of the plaintiff outside the territorial jurisdiction of this Hon’ble Court and were addressed to the defendant against outside the territorial jurisdiction of this Hon’ble Court.

In view of the discussions above, the Hon’ble Court does not have the territorial jurisdiction over the subject matter of the suit.

The fiRs.issue is, therefore, answered accordingly.

C.S.No.76 of 2007 is dismissed.

No order as to costs.

The department is directed to draw up and complete the decree expeditiously.

[DEBANGSU BASAK, J.].


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