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Narendra Nath Saha and anr. Vs. Official Receiver, High Court, Calcutta and anr. - Court Judgment

LegalCrystal Citation
SubjectCompany;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 538 of 1961
Judge
Reported inAIR1968Cal394,[1969]39CompCas258(Cal)
ActsCompanies Act, 1956 - Section 446(2); ;West Bengal City Civil Court Act, 1953; ;West Bengal Premises Tenancy (Amendment) Act, 1957 - Section 2
AppellantNarendra Nath Saha and anr.
RespondentOfficial Receiver, High Court, Calcutta and anr.
Appellant AdvocateRabiranjan Dasgupta and ;Gaganendra Krishna Deb, Advs.
Respondent AdvocateAmiya Kumar Mukherjee and ;Manohar Saha, Advs.
DispositionAppeal allowed
Excerpt:
- .....suit was brought in respect of premises no. 8 baithakhana second lane. it was instituted in the city civil court, calcutta and it was contested at the hearing by defendant no. 2, who claimed to be a subtenant in respect of the disputed premises, the tenant defendant being defendant no. 1. the tenant was m/s. dwariks sweets (india) ltd., which had gone into liquidation ana was represented in the suit by the official receiver of this court, who was appointed by this court liquidator for the purpose of the above liquidation.3. the suit has been dismissed by the learned trial judga upon the view that the city civil court, in which the suit was instituted, had no jurisdiction to entertain the present suit. on the merits, however, the learned trial judge has recorded some findings prima.....
Judgment:

P.N. Mookerjee. J.

1. This appeal is by the plaintiffs and it arises out of a suit for ejectment and mesne profits

2. The suit was brought in respect of Premises No. 8 Baithakhana Second Lane. It was instituted in the City Civil Court, Calcutta and it was contested at the hearing by defendant No. 2, who claimed to be a subtenant in respect of the disputed premises, the tenant defendant being defendant No. 1. The tenant was M/s. Dwariks Sweets (India) Ltd., which had gone into liquidation ana was represented in the suit by the Official Receiver of this Court, who was appointed by this Court liquidator for the purpose of the above liquidation.

3. The suit has been dismissed by the learned trial Judga upon the view that the City Civil Court, in which the suit was Instituted, had no jurisdiction to entertain the present suit. On the merits, however, the learned trial Judge has recorded some findings prima fade in favour of the plaintiffs, but those findings, except so far as they concern Issues Nos. 1 and 2 of the suit, appear to be somewhat tentative and cannot be regarded as final findings for the purpose of disposal of the present suit. The above two Issues Nos. 1 and 2 were in these terms:

'I. Are the plaintiffs owners of the suit premises?

2. Is the alleged notice of ejectment dated 18th April, 1958 valid and binding against defendant No. 1?'

4. Issue No. 5, which raised the question of jurisdiction, was In these terms: 'Has this Court jurisdiction to try this suit?'

5. The first two issues were answered in favour of the plaintiffs but Issue No. 5 was answered against the plaintiffs and, in the premises in spite of the findings in favour of the plaintiffs on the above Issues Nos. 1 & 2 the plaint was eventually ordered to be returned to the filing lawyer for presentation before the proper court. Against this order, the present appeal was taken to this Court

6. It may be mentioned here that Issue No. 4, which raised the question of mesne profits, namely 'Is the plaintiff entitled to any mesne profits?' was also found prima facie in favour of the plaintiffs but, if the suit be not entertainable by the court, none of the above findings except on the issue of jurisdiction (Issue No 5} would be of any relevance. It may also be added here that Issue No. 3 - 'Is the plaintiff entitled to Khas possession of the suit premises?', which was not specifically dealt with by the learned trial Judge, involved or included a decision on the question whether defendant No. 2, who claimed to be a sub-tenant, had a valid sub-tenancy to disentitle the plaintiffs to a decree in their suit in case the other points were found in their favour. The said Issue, obviously, was left undetermined, havin regard to the finding of the court below that it had no jurisdiction to try the suit and that accordingly the plaint we liable to be returned

7. In the above circumstances the only point which it will be necessary for us to decide in this appeal, would be the question of jurisdiction of the learned trial Judge to entertain and try the present suit

8. In holding against the plaintiffs on the above question, the learned trial Judge relies upon the fact that the suit was brought against the tenant (which was a company in liquidation), represented by the Official Receiver who was appointed as the Liquidator by this Court in the pending liquidation proceedings before it. The objection on the part of the defendant that no leave to sue the said Official Receiver had been obtained from this Court, was overruled as it was found that such leave had actually been granted. But the learned trial Judge held against the plaintiffs as above upon the view that, in view of the pendency of the liquidation proceedings in this Court, under Section 446(2) of the Companies Act, 1956 (Central Act 1 of 1956) this Court had jurisdiction to entertain the instant suit and the said suit was thus triable by this Court, and, accordingly, in the opinion of the learned trial Judge, excluded from his jurisdiction under and by virtue of Item No. 16 of the First Schedule of the City Civil Court Act (West Bengal Act XXI of 1953). The learned trial Judge, of course, held - and, in our view, rightly - that the jurisdiction of this Court under the above Section 446(2), read by itself, would not be exclusive but concurrent and, merely on the said Section the jurisdiction of the City Civil Court would not be ousted and the defence contention to that effect should be overruled. He felt, however, that, in view of Item No. 16 of the First Schedule to the City Civil Court Act the present suit would not be entertainable by the City Civil Court, as it would, all the same, be a suit, triable by this Court within the meanine of the said Item.

9. In our view, the learned trial Judge has not correctly read the said Item. It is true that, in Item No. 16, reference is made to a suit triable by this Court under any snecial law other than the Letters Patent. Granting that the Companies Act, 1958, would be a special law for the purpose and granting also that the suit, by virtue of Section 446(2) of the said Act, would be triable by this Court, the jurisdiction, conferred under the said section on this Court, being as held by the learned trial Judge himself, a concurrent jurisdiction, Item No. 16 of the First Schedule should not be read to have the effect of ousting the jurisdiction of the City Civil Court which has otherwise primary jurisdiction in this matter.

10. In the first place, the said Item contemplates, in our opinion, cases, whert exclusive jurisdiction is conferred on this Court to try particular suits by or under any special law and the intention was to preserve this exclusive jurisdiction and to keep it unaffected in spite of the enactment of the City Civil Court Act

11. Tn the second place, the legislative history and the sequence of legislation, so far as the ir stant matter is concerned, would not support or warrant the view that the City Civil Court would have no jurisdiction to entertain the present suit. Prior to the enactment of the City Civil Courts Act in 1953, the instant suit would have been entertainable only by the Chief Judge of the Calcutta Court of Small Causes (Vide West Bengal Premises Rent Control (Tera-porarv Provisions) Act 1950 - Section 16, read with Schedule B). That jurisdiction was exclusive and to the exclusion of all other courts, including this Court, and the same was conferred on and transferred to the City Civil Court by or under the City Civil Court Act, 1953 (Vide its Second Schedule). In spite, therefore, of Item No. 16 of the First Schedule thereof, which could not, in the premises, apply to suits like the present at the said point of time, the City Civil Court, - and that Court alone, - had jurisdiction to entertain such suits, and, by the Companies Act, 1956 (Vide the relevant Section 446(2)) which, as already held, merely conferred a concurrent jurisdiction on this Court, the City Civil Court's primary or pre-existing iurisdiction in the matter, as aforesaid, remained unaffected. Whatever, then, might be the position under the above Item in regard to suits, which were cognisable by this Court at the time of enactment of the City Civil Court Act, the instant suit would have been entertainable by the City Civil Court in spite of the said Item and the argument to the contrary should be overruled,

12. Even apart from what we have said above, the jurisdiction of the City Civil Court to entertain and try the present suit would be amply established and affirmed by or under the City Civil Court and the West Bengal Premises Tenancy (Amendment) Act, 1957 West Bengal Act XXVII of 1957), which came into force on 13th January, 1957. Whatever iurisdiction this Court may have obtained in the matter under Section 446(2) of the Companies Act, 1956, which came into force on 18th January, 1956, that jurisdiction was taken away and vested in the Chief Judge of the Court of Small Causes of Calcutta by Section 20 of the West Bengal Premises Tenancy Act, 1956, read with the Schedule of the said Act, with effect, from 30th March, 1956, on which date the President's assent to the said statute was published in the Calcutta Gazette.

13. The above amending Act of 1957 (West Bengal Act XXVII of 1957), even though it was not passed with the President's assent, had the effect of transferring the said jurisdiction to the City Civil Court under Section 2 thereof with effect from the date, on which the Governor's assent to the same was officially published, namely, 13-1-1957 and, accordingly the City Civil Court alone had jurisdiction to entertain this suit, which was filed much later, namely, on 10th October, 1957. We may lust mention here, in passing that, although a question of ultra vires may arise with regard to the above amending Statute, because of the absence of the President's assent, if it was to be employed for ousting or affecting any jurisdiction of this Court, no such question would arise, when it is used, as above, for ousting the jurisdiction of the Chief Judge of the Court of Small Causes of Calcutta by transferring the same, in regard to suits like the present, to the City Civil Court. The above amending Statute would, thus, in the ultimate analysis, be a sufficient and complete answer to any argument aflainsl the City Civil Court's jurisdiction to entertain and try the present suit. We hold accordingly to overrule the contrary submission of the contesting respondent.

14. In the above view, we would hold that the City Civil Court would have jurisdiction to entertain and try the present suit and the learned trial Judge was not justified in holding otherwise and in directing return of the plaint.

15. In the result, this appeal will succeed, the order of the learned trial Judge, holding that he has no jurisdiction to try the suit and directing return of the plaint to the filing lawyer for presentation to the proper court, will be set aside and the case will be sent back to him for fresh decision on the merits - subject, of course, to the observations, made hereinbefore, - in accordance with law and on the evidence, which is already on record, the question of additional evidence, if any being left to the learned trial Judge to be decided in accordance with the relevant provisions of law in that behalf.

16. Let the further hearing of the suit be expedited as much as possible.

17. There will be no order for costs is this Court.

18. Let the records go down as quickly as possible.

K. Dutt, J.

19. I agree.


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