Skip to content


S.B. Foundry Limited Vs. Shree Gopi Kissen Steel Works Private Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 188 of 1984
Judge
Reported inAIR1985Cal157
ActsCode of Civil Procedure (CPC) , 1908 - Section 24
AppellantS.B. Foundry Limited
RespondentShree Gopi Kissen Steel Works Private Ltd. and ors.
Appellant AdvocateDipak Basu, Adv.
Respondent AdvocatePinaki Ghosh and ;Dilip Mitra, Advs.
Cases Referred(Lachmi Narayan Jute Mfg. Co. v. Dwip Narayan Singh). In
Excerpt:
- .....by simply stating in the affidavit in opposition that the deponent has no objection if the suit is transferred cannot be said to be an agreement in any legal sense of the term. moreover, one of the parties, namely, the receiver has not been made a party in this application. therefore, even if it were an agreement which i hold it is not, court would not act upon such a pretended agreement.7. considering all the facts of the case, i am not inclined to pass any order as prayed for. but, however, it gives me rather a shock to find that misc. appeal no. 251 of 1981 which has been pending from 1981 is still lying undisposed of.8. mr. dilip mitra counsel appearing for the respondents 1 and 2 has frankly admitted that once for his clients' default it was dismissed but then it was.....
Judgment:
ORDER

Asha Mukul Pal, J.

1. This is an application made by S.R Foundry Ltd under Clause 13 of the Letters Patent as also under Section 24 of the Code of Civil Procedure in the Extraordinary Original Civil Jurisdiction of this Court for orders that the Title Suit No. 25 of 1980 (Shree Gopi Kissen Steel Works Pvt. Ltd. And Anr. v. S. B. Foundry Ltd. and Ors.) pending before the Learned 10th Subordinate Judge at Alipore and Miscellaneous Appeal No. 251 of 1981 (Shree Gopi Kissen Steel Works Pvt. Ltd and Anr. v. S. B. Foundry Ltd and Ors.) pending in the Learned 14th Additional District Judge at Alipore and all proceedings thereunder should be removed and/or transferred to this Hon'ble Court and be heard, tried and determined by this Hon'ble Court in its Extraordinary Original Civil Jurisdiction.

2. Mr. Dipak Basu for the petitioner has argued that the petitioner is being harassed by inordinate delay in hearing of the said appeal and from 1983 till 1984 the petitioner could not get the appeal heard and as such for the interest of justice as well as for the balance of convenience this suit as well as the appeal (preferred from an interlocutory order passed in connection with this suit) should be transferred to this Court. Mr. Basu has drawn my pointed attention to the Tact how adjournment after adjournment has been made so far the said Miscellaneous Appeal No. 251 of 1% 1 is concerned by the said Court. He has also argued that both for the sake of balance of convenience as also for the ends of justice the said appeal along with the said suit should be transferred to this Court. He has contended that balance of convenience is in favour of transfer inasmuch as the Advocates-on-Records are all practising in High Court, the registered office of the company and the parties are within the jurisdiction of this Court and the persons who will depose are available more easily if the suit is heard in this Court and as such the suit should be transferred. So far as the appeal is concerned, he submits the very fact that so many adjournments have been allowed warrants transfer of the appeal too. Mr. Basu has drawn my attention to the affidavit in opposition affirmed by Shyam Sunder Kajaria where in paragraphs 63, 65( v), '66 and 72 of the said affidavit-in-oppostion affirmed by one Sham Sunder Kajaria has stated that it is desirable that the proceedings pending before the 14th Additional District Judge at Alipore and also the pending suit before the 10th Subordinate Judge at Alipore be transferred to this Hon'ble Court. On the basis of the said affidavit Mr. Basu argued that the provisions of Clause 13 of the Letters Patent have been attracted because the parties have agreed to the effect of such transfer which is one of the grounds for transfer of suit to this Court.

3. West Bengal Financial Corporation, respondent No. 3 has not filed his affidavit-in-opposition. Mr. Pinaki Ghosh appearing for the said respondent No. 3 leaves the matter to Court and wants to record the fact that he does not admit the allegations made in the said petition. As a matter of fact, he does align either with the petitioner or with Mr. Dilip Mitra's clients.

4. Mr. Basu, in order to convince me that 1 can transfer both the suit as well as the appeal, drew my attention to provisions of Section 24 of the Code of Civil Procedure and also the Judgment of a Division Bench of this Court reported in : AIR1956Cal65 (Lachmi Narayan Jute Mfg. Co. v. Dwip Narayan Singh). In the said judgment the Division Bench sitting in the Appellate Side of this Court was of the view that an application for transfer of a suit Under Section 24 of the C.P.C from a Subordinate Court to the Original Side of the High Court was permissible and order for such a transfer could be made. But this case is distinguishable from the facts of the present case; that was a case of transfer of a suit from Chinsurah Court to the High Court. No question of pending Misc. Appeal (as it is here) was there. In the facts and circumstances of the said case, their Lordships merely held that a Division Bench (Appellate Side) can direct if the facts warrant that a suit can be transferred from a district court to the Original Side of the High Court. Therefore, that case cannot be said to be laying down the principle that a Single Judge sitting in the Original Side under the provisions of Section 24 of C.P.C. can transfer a suit and a Misc. Appeal arising from that suit to the Original Side of this Court. Secondly Mr. Basu contended that the appeal is a continuation of the suit but in this case he has overlooked the fact that this appeal is not a regular appeal from the suit, it is only a miscellaneous appeal from an interlocutory order in the said suit. Therefore, the appeal sought to be transferred is not a continuation of the suit as such. In any view of the matter Section 24 of the C.P.C. as well as judgment in : AIR1956Cal65 will not apply in this case as the facts in the instant matter are different.

5. With regard to Clause 13 of the Letters Patent I should say that Clause 13 only mentions transfer of a suit but it does not provide for transfer of an appeal. It is argued, that appeal is continuation of the suit but I have stated in the preceding paragraph that the appeal in the present case is a miscellaneous appeal and not an appeal from a decree and as such the argument that suit includes appeal to attract the provisions of Clause 13 is unsustainable. Furthermore, Clause 13 of Letters Patent only provides for transfer of a suit without any mention of appeal. In my view the omission is intentional and the omission only indicates that appeal is excluded from the purview of the said clause. I find that in some other section of the C.P.C. while dealing with transfer, appeal has been specifically mentioned as in the case of Section 24 of Civil Procedure Code. But Clause 13 of the Letters Patent mentions only 'suit' omitting to mention 'appeal' that omission of the word 'appeal' in Clause 13 of the Letters Patent unmistakably leads to the conclusion that Clause 13 is not meant for transfer of appeal and that argument that appeal is continuation of suit does not hold good so far Clause 13 is concerned and that being so Court would not be justified to hold that order of transfer can be made of both suit as well appeal under Clause 13 of the Letters Patent.

6. Besides what has been stated above, the Clause 13 envisages a lawful agreement of the parties. By simply stating in the affidavit in opposition that the deponent has no objection if the suit is transferred cannot be said to be an agreement in any legal sense of the term. Moreover, one of the parties, namely, the Receiver has not been made a party in this application. Therefore, even if it were an agreement which I hold it is not, Court would not act upon such a pretended agreement.

7. Considering all the facts of the case, I am not inclined to pass any order as prayed for. But, however, it gives me rather a shock to find that Misc. Appeal No. 251 of 1981 which has been pending from 1981 is still lying undisposed of.

8. Mr. Dilip Mitra counsel appearing for the respondents 1 and 2 has frankly admitted that once for his clients' default it was dismissed but then it was restored on his application. He wants to record the fact that he is also very keen to have that appeal heard and disposed of expeditiously. I hereby direct that the Learned 14th Additional District Judge will dispose of this appeal as expeditiously as possible but not later than 3-9-1984. He should make every endeavour to dispose it of by that time. An extract of the last portion of this order which contains the directions about the expeditious disposal by the learned District Judge 14th Court, Alipore, be sent by the learned Registrar of this Court in course of 7 days at the costs of the respondents Nos. 1 and 2.

9. There, will be no order on this application, except that the petitioner will pay costs of this application assessed at 22 Gms. Out of 22 Gms., 15Gms. will be paid to Mr. Dilip Mitra's clients i.e. respondents Nos. 1 and 2 and 7 Gms. will be paid to Mr. Pinaki Ghosh's client i.e. respondent No. 3. The rule stands discharged.

10. All parties including the Registrar, Original Side to act on a signed copy of the minutes of the order on the usual undertaking.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //