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Ultra Engineering Industries P. Ltd. Vs. Spintex Industries Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 144 of 1978
Judge
Reported inAIR1980Cal159
AppellantUltra Engineering Industries P. Ltd.
RespondentSpintex Industries Pvt. Ltd.
Advocates:Kapur, Adv.
Excerpt:
- .....the petitioner, the plaintiff should not be allowed in breach of the specific agreement to file a suit at calcutta to the utter inconvenience of the petitioner according to the petitioner, the agreement was not arrived at nos. 1 & 3, bra-bourne road, calcutta as wrongly alleged by the plaintiff and on the basis of which leave had been obtained from this court. considering the balance of convenience, this court should stay the suit as not only the entire transaction has taken place outside the jurisdiction of this court but both the plaintiff and the defendants have their place of business at faridabad and delhi and the defendant has no office whatsoever at calcutta wherefrom the defendant may conduct the case filed by the plaintiff. it would cause great hardship and inconvenience to the.....
Judgment:
ORDER

Padma Khastgir, J.

1. This is an application for revocation of the leave granted under Clause 12 of the Letters Patent on the ground that no part of the plaintiff's cause of action has arisen within the jurisdiction of this court; in the alternative for stay of the suit on the ground of balance of convenience.

2. The petitioner's case before me is that pursuant to a contract entered into at Faridabad and/or Delhi there have been series of transactions by and between the plaintiff and the defendant The entire transaction has taken place outside the jurisdiction of this Court. Part payments have been made outside the jurisdiction of this court; as such no part of the cause of action of the plaintiff has arisen within the jurisdiction of this Court. Moreover in the plaint itself, the plaintiff has pleaded various transactions whereby the defendant supplied various goods to the plaintiff; as a result a huge sum of money is due and payable by the plaintiff to the defendant and said transaction took place outside the jurisdiction of this court. Hence the entire cause of action of the plaintiff as indicated above has not arisen within the jurisdiction of this court. Except that admittedly a sum of Rs. 1,25,000.00 has been paid by the defendant to the plaintiff at the plaintiff's place of office at 1 & 3, Brabourne Road, Calcutta. Although in the plaint itself, the plaintiffhas described that its registered office is at Nos. 1 & 3, Brabourne Road, Calcutta but from the extract of the registration certificate it would appear that the plaintiff's registered office is at Delhi and not at Calcutta as wrongly alleged in the plaint. From the various bills that have been submitted by the plaintiff to the defendant which have been accepted by the defendant it would appear that there is a particular clause which confers jurisdiction in respect of all disputes to the Faridabad Court and not at Calcutta. In view of the said agreement as would appear from the submission of the bills which have been accepted by the defendant it was agreed by and between the parties to refer all their disputes to the jurisdiction of the Faridabad Court and not at Calcutta as such according to the petitioner, the plaintiff should not be allowed in breach of the specific agreement to file a suit at Calcutta to the utter inconvenience of the petitioner According to the petitioner, the agreement was not arrived at Nos. 1 & 3, Bra-bourne Road, Calcutta as wrongly alleged by the plaintiff and on the basis of which leave had been obtained from this court. Considering the balance of convenience, this Court should stay the suit as not only the entire transaction has taken place outside the jurisdiction of this court but both the plaintiff and the defendants have their place of business at Faridabad and Delhi and the defendant has no office whatsoever at Calcutta wherefrom the defendant may conduct the case filed by the plaintiff. It would cause great hardship and inconvenience to the defendant if he is compelled to defend the suit here. On the other hand the plaintiff suffers no consequence at all if the case is tried at Delhi or at Faridabad as the plaintiff has its registered office at Delhi and place of work at Faridabad which is very close to Delhi.

3. Although the plaintiff has specifically pleaded that the payment is to be made at Calcutta but such a clause would not appear from the letter which records the agreement arrived at by and between the parties. On the contrary all part payments have been made at Faridabad and at Delhi outside the jurisdiction of this court. From the letter dated 20th of Feb. 1976 it would appear that the payments were to be made by way of Bank draft made out in favour of the plaintiff's company at Faridabad Bank within seven days from the dateof the submission of bills. According to the petitioner save and except the payment of Rs. 1,25,000.00 which was paid right at the beginning at the time of entering into the transaction no other part of cause of action of the plaintiff has arisen within the jurisdiction oi this court. Moreover the plaintiff has not made any claim in respect of the said part payment; as such that does not form a part of the plaintiff's cause of action. Various receipts have been annexed to the petition along with bills which would show that part payments have been made on State Bank of India at New Delhi and not at Calcutta.

4. In the case reported in : AIR1970Cal394 R. M. Datta, J. held

'for the purposes of invoking jurisdiction of the court the expression 'cause of action' has a distinct connotation. Merely saying that something has happened within the jurisdiction of the High Court would not be effective in conferring jurisdiction on the Court or to ask for leave under Clause 12. It must first be a cause of action in the suit; secondly, such cause of action must arise within the jurisdiction of the High Court and thirdly that part of the cause of action on which jurisdiction is sought for must affect the defendant or defendants against whom the relief is asked for. In the application for revocation of leave where averments show that balance of convenience would be overwhelmingly in favour of the defendant in defending the suit in the Uttar Pradesh Court and the prejudice to the defendant would amount to injustice if the suit is allowed to be proceeded with in the Calcutta High Court, leave should be revoked.'

5. In the case reported in AIR 1072 Cal 82 R. M. Datta, J. held

'at the time of granting of leave the balance of convenience of the parties is a relevant factor. It cannot however be considered when the leave is sanctioned ex parte. But it can be properly determined while revocation of leave is sought. The balance of convenience must be shown to be overwhelmingly in favour of the suit being heard by a court other than that granting the leave'.

There in a suit by an employer against an ex-employee the entire evidence was available at Madras, so it was held that it would be tremendously costly to call all the witnesses to Calcutta High Court which has granted the leave and almost the whole of the cause of action has arisen at Madras and great hardshipamounting to injustice will be caused to the defendant if the suit is allowed to be tried by the Calcutta High Court. Therefore the leave was revoked. On the contrary it was held that considering the facts and circumstances of the case the plaintiff would not in any way be prejudiced if the suit was proceeded with at Madras where the plaintiff carries on business through its branch office and can well have all the evidence available there. Whereas if the defendant had to defend the suit at Calcutta the hardship and inconvenience which would be caused to him would have amounted to injustice.

6. Mr. Kapur appeared on behalf of the plaintiff and opposed this application. He relied on a case reported in : AIR1952Cal82 and submitted that the allegation made in the plaint must be taken to be correct and the Court should not enter into disputed question of facts and the Court would not decide the questions of mala fides of the plaintiff in instituting a suit in a particular forum except at the trial of the action. Unless the balance of convenience is shown overwhelmingly in favour of the defendant to such an extent that to force the defendant to come to this court would amount to a denial of justice, the Court will not enter into nice calculations for ascertaining the respective convenience Or inconvenience of the parties and that, according to Sinha, C. J.. as he then was, the phrase 'mere balance of convenience is not enough'. The learned Judge further held that in deciding the application of revocation of leave it is always useful to consider as to which court was the 'natural forum' for action. In that particular case the agreement was entered into in Calcutta where the firm was constituted and on the question of balance of convenience the learned court came to the conclusion that it was overwhelmingly in favour of the defendant. There is a running business at Delhi, The plaintiff has also a place of business at Delhi. All the books of accounts, evidence and persons capable of proving them were at Delhi and the only thing that happened at Calcutta was the execution of the agreement. Ultimately the learned Judge held that Delhi was the 'natural forum' in that suit.

7. In the case reported in AIR 1949Cal 495, S. R. Das, J. laid down certaintests to be applied in an application forrevocation of leave granted under Clause 12 of the Letters Patent and one of the tests laid down was that where only a part of the cause of action arises then it is a question of discretion for the court to grant or refuse leave or to revoke or maintain leave where already granted. Taking into consideration the balance of convenience and if the balance is definitely in favour of the defendant the court should apply the doctrine of forum conveniences.

8. The same view has been affirmed by a Division Bench of this High Court presided over by Chief Justice, Sankar Prasad Mitra reported in 0043/1978 : AIR1978Cal211 where it has been held that

'it is well settled that in giving or refusing leave or maintaining or revoking leave the court will ordinarily take into consideration the balance of convenience and may, if the balance is definitely in favour of the defendant, apply the doctrine of forum conveniences'.

9. Applying the same test as laid down in the cases referred earlier I am: of the view and hold that it would cause not only inconvenience but also hardship to ask the defendant to come and defend the suit here in Calcutta when admitted-ly the defendant has no office at Calcutta. All the transaction that was entered into by and between the parties have taken place at Faridabad and Delhi out-side the jurisdiction of this Court and all evidence are also available there.

10. In view of the facts and circumstances as stated above, it would really cause hardship to ask the defendant to come down to Calcutta and defend the suit. Hence considering the balance of convenience I pass an order in terms of prayers (a), (b), (c) and (f).

11. There will be a stay for operation of the order for a fortnight.


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