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Hansraj Bajaj Vs. the Indian Overseas Bank Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberSuit No. 1009 of 1954
Reported inAIR1956Cal33,59CWN1044
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20 and 151
AppellantHansraj Bajaj
RespondentThe Indian Overseas Bank Ltd.
Appellant AdvocateR. Choudhury, Adv.
Respondent AdvocateS. Bose, Adv.
Cases ReferredHenry Prince v. The Oriental Bank Corporation
- .....alleged undischarged and outstanding demand draft.2. the demand draft was issued by the defendant-bank's branch office at penang for 10,000/- drawn on that bank's singapore branch. the draft, it is alleged, was drawn in the name of mr. hansraj bajaj and payable to him at the singapore office of the defendant. that is the plaintiff's own allegation in the plaint. according to the plaintiff, he purchased this demand draft from his brother bikramjit bajaj on 5-4-1951.on 7-4-1951 the plaintiff and his said brother while proceeding from penang to singapore met with a serious motor accident as a result of which his said brother bjkramji bajaj died. it is the plaintiff's case that the draft along with other papers was taken possession of by the police from the plaintiff while he was lying.....

P.B. Mukharji, J.

1. This is an application by thedefendant-bank for an injunction restraining the plaintiff from proceeding with the suit here in this Court and for stay of all further proceedings of this suit. The application was made on a Notice of Motion dated 16-8-1954. This suit was instituted on 1-4-1954 by the plaintiff against the defendant-bank for the recovery of Rs. 15,625/-being the value of an alleged undischarged and outstanding demand draft.

2. The demand draft was issued by the defendant-bank's branch office at Penang for 10,000/- drawn on that Bank's Singapore branch. The draft, it is alleged, was drawn in the name of Mr. Hansraj Bajaj and payable to him at the Singapore office of the defendant. That is the plaintiff's own allegation in the plaint. According to the plaintiff, he purchased this demand draft from his brother Bikramjit Bajaj on 5-4-1951.

On 7-4-1951 the plaintiff and his said brother while proceeding from Penang to Singapore met with a serious motor accident as a result of which his said brother Bjkramji Bajaj died. It is the plaintiff's case that the draft along with other papers was taken possession of by the police from the plaintiff while he was lying unconscious in the hospital at Johar Baru.

The plaintiff alleges that the said draft was thereafter sent by the police to one Karan Singh. Karan Singh sent the draft to the Branch office of the defendant-bank at Penang. The defendant bank on 24-4-1951 cancelled the said draft and credited the proceeds thereof to the account of the deceased Bikramjit Baja] maintained under the name and style of Hansraj Bikramjit with the Penang branch of the defendant-bank.

It is the plaintiff's case that the defendant's Penang branch had no right to cancel the draft or credit the proceeds thereof in the manner as it did. Plaintiff contends that the draft still remains undischarged and outstanding. Plaintiff, therefore, claims from the defendant the sum of Rs. 15,625/- as being the equivalent for $ 10,000/-.

3. These facts will show that no part of the transaction or the cause of action for the suit arose within the jurisdiction of this Court or anywhere near it. The whole of the case and the disputes in connection therewith took place either at Penang or at Singapore. The only ground on which the Jurisdiction of this Court is claimed by the plaintiff is that the defendant-bank has its Head Office in Calcutta within the jurisdiction of this Court.

4. The defendant-bank in this application states that this choice of forum by the plaintiff is 'mala fide', vexatious, embarrassing and Intended to defeat justice by preventing the defendant from bringing material and proper evidence to this Court for a just determination of the disputes between the parties. It not only contends that the whole of the cause of action arose at Penang and Singapore which are foreign countries but it also says that all the necessary witnesses and documents of the bank are at Penang and Singapore.

5. It is plain from a consideration of the different cases made on behalf of the plaintiff and the defendant that one of the major controversies in the suit is, who was the owner of the draft in suit and how the draft came back to the possession of the applicant defendant-bank. The plaintiff-respondent's own case is that he was in possession of the draft and the draft was taken possession of by the police authorities at Penang from him. That is disputed by the defendant-bank.

This dispute means that the police authorities and the hospital authorities at Johar Baru Hospital at Singapore who are public servants of a foreign administration will have to be called here as necessary witnesses, apart from Karan Singh who is a resident there. Then again the issue of the draft and its subsequent credit by the bank can only be shown from the defendant-bank's branch office at Penang.

If the suit is continued here, then all those bank documents will have to be sent for the purpose of being produced and exhibited here.

6. It is clear, therefore, that both in respect of witnesses and in respect of documents, continuance of the suit here will not only mean mere inconvenience for the defendant but will also lead to failure of justice and such vexation as would amount to injustice. It has also been contended by the applicant, and in my view rightly, that the rights and liabilities of the parties in respect of the draft in suit should be determined by the laws of foreign countries, i. e., the laws of Penang and Singapore because the draft was issued by the bank at Penang on its branch at Singapore and payable there. Both lex loci and lex for are foreign.

7. These are considerations which show that the Penang or the Singapore Court is the proper Court where this suit should normally have been instituted.

8. From the point of view of the respondent who claims the value ot' the draft, the records show that at the time of the incident he was himself at Penang/Singapore. It also is proved that his family had been at Penang. His father is still there. His own Pass Port says that he has been to that country. A certificate of registration of partnership shows that Hansraj Bikramjit is a partnership whose 'principal place of business' is 123, King Street, Penang.

That business was commenced as early as 30-6-1930, and it also shows that it has no other branch elsewhere. It was registered on 14-10-1953 prior to the institution of this suit here. It describes the present plaintiff and the wife of his deceased brother as two partners or associates in that business. This obviously proves that the plaintiff himself carries on business there at Penang.

I direct the certified copy of that registration be filed herein as part of these proceedings. It also appears from the records of the Supreme Court of the Federation of Malaya in the High Court at Penang that a Civil Suit No. 208 of 1953 is pending there in which Receivers and Managers have been appointed by the High Court at Penang over the estate of the deceased brotherof the plaintiff pending the grant of Letters of Administration to the estate of the said deceased. I also direct the order of appointment of Receivers to be filed herein as part of these proceedings.

9. These records are in strange contrast to the allegations made by the plaintiff Hansraj Bajaj in his affidavit affirmed herein on 26-8-1954 wherein he stated that he went to Fenang only once in 1940 and thereafter once again in 1951 and after which he never visited Penang again. His Pass Port shows that he visited Penang only a few months ago even this year and while this application was pending. Again in that affidavit the plaintiff says that after the death of his brother there is complete disruption between the members of his family and 'there is no one at Penang who can or will be willing to look after my case at Penang or Singapore.'

It is difficult to believe these allegations in the face of the Court records showing that he himself is a registered partner in a partnership business at Penang carrying on business there and also visiting Penang as shown in his Pass Port and his father still a resident of Penang. In fact, he made the allegation in another affidavit filed herein and affirmed on 11-12-1954 where he incorrectly stated that he had no interest in the said business while the fact is that he himself is registered as a partner.

In fact, in para 3 of that affidavit he made a positive averment, 'I am not nor have been a partner of the said business (Hansraj Bikramjit)'. I am afraid these allegations have been completely falsified by the records. In para 4 of that affidavit of 11-12-1954 plaintiff wrongly stated that he was physically so unfit that he could not go abroad and that the Immigration Ordinance of 1952 at Malaya with doller restrictions prevented him from going there.

The certificate of partnership shows that that is false and his Pass Port also shows that nothing prevented him from going to Penang even as late as a few months ago.

10. In that context of unassailable facts and records it is obvious that so far as the plaintiff is concerned he is a Penang businessman with existing business associations and connections there so that he could easily file his suit in Penang Court.

11. On these facts, therefore, there is no reason whatever why this suit should be allowed to continue in this Court and why it should not be stayed with liberty to the plaintiff to institute his action at the proper Court at Penang or Singapore as he may be advised.

12. The only point, therefore, that requires decision is the point of law. That point of law is important. It has been rightly urged with great vigour. That point arises in this way. Undoubtedly this Court has the jurisdiction to receive, entertain and try this suit. Technically the plaintiff's choice of this forum is legal and competent. The only ground, however, for the jurisdiction of this Court is that the defendant-bank has its head office in Calcutta within the jurisdiction.

As the action is a personal action and the suit is for money, the jurisdiction of this Court is unquestioned. Then the question is whether even where there is jurisdiction, this Court can stay a suit filed in it on other considerations. To stay a suit of this kind is no doubt 'prima facie' to stifle a legal right. Courts are loath to do so. They naturally incline in favour of executing anddischarging the jurisdiction that the law has vested in them.

There is, however, one exception and that exception is made only in the interest of justice and to prevent abuse of the process of the Court. A right of action exercised by a party and entertained by a Court is primarily based on the one pre-eminent principle that where a conflict has arisen between the parties, the conflict should be resolved according to a fair judicial trial and so justice rendered to the parties.

That is both the primary and the ultimate purpose. If therefore conditions exist which defeat that primary purpose, the Courts have declined to proceed with a suit even where they have a jurisdiction to determine it. As will be plain from this analysis of objectives, this jurisdiction is an inherent jurisdiction of the Court. In this country, the Jurisdiction to stay a competent suit is exercised under Section 151, Civil P. C,, which recognises such inherent judicial power by providing:

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

In other words, the jurisdiction to stay an otherwise competent suit is to be exercised only for the ends of justice or to prevent abuse of the process of the Court. This view is well settled and supported by such authorities in India as --'Bhagat Singh Bugga v. Jagbir Sawhney' : AIR1941Cal670 ; -- 'Jethabhai Versey & Co. v. Amarchand Madhavji & Co.' AIR 1924 Bom 90 (B).

This jurisdiction is to be sparingly exercised and within the strict limits of rigorous conditions, whose principles may now be clearly stated.

13. The Courts have evolved certain well-defined principles to guide their decision on this point. The first principle is that a mere balance of convenience is not a sufficient ground for depriving a plaintiff of his right of prosecuting his action in or his right of access to the competent Courts of the land.

The second principle is that Court stays an action brought within the jurisdiction in respect of a cause of action arising entirely out of the jurisdiction when it is satisfied that the plaintiff will thereby suffer no injustice whereas if the action is continued the defendant will, in defending the action, be the victim of such injustice as to amount to vexation and oppression and which vexation & oppression would not arise for the defendant if the action were brought in another accessible Court where the cause of action arose.

In such a case the Courts have also insisted that the onus is upon the defendant to satisfy the Court, first, that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the Court, and, secondly, also that the stay will not cause any injustice to the plaintiff.

These principles can be deduced from decisions like -- 'Logan v. Bank of Scotland (No. 2)' (1906) 1 KB 141 (C); -- 'St. Pierre v. South American Stores Ltd' (1936) 1 KB 382 (D); and -- 'Sealey v. Callan' (1953) 1 All ER 942 (E).

14. I am satisfied on the facts of this case that the defendant has fully discharged that onus. The cause of action here arose entirely at Penang/ Singapore. To continue the suit here will cause such injustice to the defendant-applicant as would amount to vexation and oppression to him. All the witnesses, all the documents and in fact all material evidence have to come from abroad.

Some witnesses who are material are public officers of the Malayan police force and Singapore hospital authorities who may not be able to come due to exigencies and demands of their public offices. It is also not such a case' where evidence on commission is desirable. Their evidence on commission, apart from being highly expensive, will deprive the Court of the necessary opportunity of seeing these material witnesses and their demeanour to decide their credibility.

That will be a serious handicap for this Court. All the material books of the Penang branch of the defendant bank will have to be brought over here if the suit is allowed to be continued in this Court. I am also satisfied on the facts of this case that the stay of the action here will not cause the slightest injustice to the plaintiff.

It is clearly proved beyond doubt on the records before me that the plaintiff himself carries on business at Penang, that his family had been there, his father still lives there and that he has himself been a frequent visitor and also a very recent visitor to Penang. His allegations to the contrary have all been proved false by public records which I have already discussed in my judgment.

While, therefore, I am conscious that access to this Court, if otherwise available, should not be lightly refused, I am more than satisfied in this case that the facts here meet the tests which the Courts follow in staying an otherwise competent suit within its Jurisdiction. I am of the opinion on those facts that to permit this suit to continue here in these circumstances will be truly an abuse of the very process of this Court.

15. Before I conclude, I wish to add one observation on the nature of the jurisdiction claimed in this case on the ground of jurisdiction. It is a jurisdiction which is undoubtedly rightly claimed and that was why a prior application by the defendant to throw this plaint out on the ground of jurisdiction was refused. But this is a very tenuous jurisdiction.

It is necessary to emphasise here that although a branch bank is in fact an agency of the principal banking corporation a branch bank has often been regarded as very distinct for many special purposes. For instance, it has been regarded in law as distinct from the parent body or the head office in the matter of estimating the time by which notice of dishonour should be given.

It is also regarded as distinct entitling the banker to refuse payment of a customer's cheque except on that particular branch where he keeps his account. That - principle of law was ably discussed by Sir Montague Smith in the Privy Council decision in -- 'Henry Prince v. The Oriental Bank Corporation' (1878) 3 AC 325 (F).

Here in this case the entire transaction out of which the dispute arose concerns the Penang branch of the defendant bank. The relevant accounts were kept in the Penang branch. In this case a draft was issued by the Penang branch. It was also issued in dollers and not in rupees. In fact, the Head Office here in Calcutta has nothing to do with this transaction at all.

Nor do the books of the Head Office deal with these transactions in any manner whatever. That is why I am of the opinion that in this case the jurisdiction claimed on the ground that the Head Office is here in Calcutta within the jurisdiction is an overstretched jurisdiction although within the technical limits of the Jaw.

16. As a last resort the application was resisted on the ground that a suit in Penang would now be barred by limitation because the draft was issued on 5-4-1951. This argument Is based on the assumption that at Penang also there is the three year limitation for such actions. This argument has been repelled successfully by. Mr. Chowdhury appearing for the applicant who draws my attention to the Federation of Malaya Limitation Ordinance 1953, No. 4 of 1953. By Section 6 of that' Ordinance a six years' limitation is provided for such actions.

Therefore the respondent-plaintiff's plea on this ground must be over-ruled. In any event, what is being done at this stage is only a stay of the suit and not its dismissal so that even if the plaintiff fails in a suit which he might bring at Penang or Singapore as he may be advised, on the ground of limitation, he can always come back to this Court to say so and on that ground ask to lift the stay order and continue the suit here.

17. For these reasons I order stay of all proceedings and trial of this suit and there will bean injunction restraining the plaintiff, his servants and agents from proceeding with this suitin this Court. The respondent will pay the costsof this application. In other words, there will bean order in terms of Clauses (a), (b) and (d) of theNotice of Motion. The plaintiff will however haveliberty to institute an action or proceeding onthe same cause of action at Penang or Singapore.

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