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Karam Chand Thapar and Bros. (Coal Sales) Vs. Inder Mohan Kapoor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 4243 of 1969
Judge
Reported inAIR1972Cal82
AppellantKaram Chand Thapar and Bros. (Coal Sales)
Respondentinder Mohan Kapoor
Excerpt:
- .....leave ought to be revoked on the basis of the following considerations.4. the plaintiff has its branch office at madras. its registered office is at calcutta. the defendant resides at madras. the defendant was appointed as the plaintiff's branch manager at madras in 1958. as such branch manager the defendant loo'ked after the plaintiff's business in the territory allotted to the madras branch as per instructions received from calcutta. under the supervision of the defendant the books of account and records were maintained at the madras office. the defendant got his monthly salary and other remunerations at madras and earned a share of the profit as commission at madras. the defendant acted as such branch manager till may 23. 1969 when his services at madras were terminated by the.....
Judgment:
ORDER

Ramendra Mohan Datta, J.

1. In my opinion, if the materials which are now being placed before the Court had been available to the Court at the time of granting such leave under Clause 12 of the Letters Patent then the court, in its discretion, would not have granted the leave considering the balance of convenience of the parties. In exercising its discretion in granting leave under Clause 12 it is always relevant for the Court to consider the question of balance of convenience but it is not possible for the Court to consider the same when the Court grants this leave ex parte at the time of the institution of the suit. Therefore the proper time to consider the balance of convenience is the time when the application for revocation of the leave under Clause 12 is heard.

2. To succeed in an application for revocation of leave on the ground of balance of convenience, a strong case has to be made out. In other words, a mere balance of convenience would not be enough but it must be such that it would be overwhelmingly in favour of the suit being heard by a Court other than the Court granting the leave. The paramount consideration for the Court in such a case would be to consider whether in acquiring jurisdiction it would cause serious prejudice resulting in injustice to the defendant if the suit would be permitted to be proceeded with in the Court where it has been instituted with such leave.

3. In my opinion, this is a case where leave ought to be revoked on the basis of the following considerations.

4. The plaintiff has its branch office at Madras. Its registered office is at Calcutta. The defendant resides at Madras. The defendant was appointed as the plaintiff's branch manager at Madras in 1958. As such branch manager the defendant loo'ked after the plaintiff's business in the territory allotted to the Madras branch as per instructions received from Calcutta. Under the supervision of the defendant the books of account and records were maintained at the Madras office. The defendant got his monthly salary and other remunerations at Madras and earned a share of the profit as commission at Madras. The defendant acted as such branch manager till May 23. 1969 when his services at Madras were terminated by the plaintiff. During his service as branch Manager the defendant withdrew various amounts and the same were recorded in a mutual, open and current Account maintained at the said Madras branch. The plaintiff claims herein recovery of such amount to the extent of Rs. 1,10,154.59 p. from the defendant. The plaintiff's further allegation is that the defendant was bound in a fiduciary character and/or charged with the duty of looking after and/or protecting the interests of the plaintiff and its business including the collection of all outstandings due to the plaintiff and protection of all stores and stocks of the plaintiff at Madras. In breach of trust and/or neglect of duty the defendant failed and neglected to recover or take any steps for the recovery of several large sums of money amounting to a sum of Rs. 1,50,000/- with the result the plaintiff has suffered loss to that extent. Besides the same the defendant also failed and neglected to account for 570 tonnes of coal valued at Rs. 67,197.30 paise. The total claim against the defendant is for a sum of Rs. 3,70,264.62 paise. In annexure 'C' to the plaint a long list of the names of the parties from whom moneys have not been realised by the defendant to the total extent of Rupees 1,10.154.59 paise have been set out. They are mostly of places in and around Madras.

5. It would clearly appear that practically the entire evidence is available at Madras and it would be a tremendously costly affair to call the various witnesses who might be necessary to be called both to prove and to disprove the allegations in the plaint. The entire books of account must be at Madras. It is no doubt true that the plaintiff might be in a position to bring down all these books from its Madras office to Calcutta but it would be extremely difficult for the defendant to call his witnesses, who must all be in or around Madras, if the defendant has to succeed in his defence. In fact, the defendant has set out the names of five witnesses who are residents of Madras. Those persons dealt with the books of account and other ledgers in the Madras office of the plaintiff. They are within the control of the plaintiff. If the defendant has to call them at Calcutta they have to apply for and to obtain leave of office for several days from the plaintiff from time to time and it is difficult to predict whether such persons will be willing to travel this long distance to Calcutta on their own or at the expenses to be provided by the plaintiff. In all probability and very likely the defendant has to bear their expenses for coming down to Calcutta if such persons would at all be granted leave by the plaintiff to give evidence against the plaintiff and in favour of the defendant. The long list of parties practically all of whom are in or around Madras, might be relevant witnesses at the trial to disprove the various charges made against the defendant by the plaintiff in this suit. At least some of them might be called by the defendant. The sum involved is a very large sum and the defendant no doubt has to take proper steps to contest this suit. In paragraph 20 of the affidavit of the defendant it has been stated that 7 Madras Banks undertook financial assistance in respect of the transactions complained of by the plaintiff. The employees of these Banks and their books might be relevant at the trial of the suit. In short practically the whole of the cause of action excepting a little part thereof arose within the jurisdiction of the Madras Court.

6. The learned Advocate General placed the various terms and conditions of the agreement whereby the defendant was appointed the branch manager and contended that the agreement was entered into at Calcutta and considering the balance of convenience from the point of view of the plaintiff the suit should be allowed to be proceeded with in this Court.

7. In my opinion, the defendant will be put to a great hardship and inconvenience if the suit is allowed to be proceeded with in the Calcutta High Court. On the contrary, considering the facts and circumstances of this case the plaintiff will not in any way, be prejudiced if the suit is proceeded with at Madras where the plaintiff carries on business through its branch office and can well have all the evidence available there. If the defendant has to defend the suit at Calcutta the hardship and inconvenience which would be caused to him would amount to injustice.

8. Accordingly, I have no hestita-tion to uphold the contention put forward on behalf of the defendant and to revoke the leave under Clause 12 of the Letters Patent which was granted at the time of instituting this suit. Upon such revocation being ordered the plaint is liable to be and is hereby directed to be taken off the file with liberty to the plaintiff to present this plaint with suitable modifications at the proper and convenient Court at Madras.

9. I accordingly make an order in terms of prayer 1 of the Summons and I direct that each party would pay and bear its or his own costs. Certified for counsel.


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