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Standard Tubewell and Engineering Works Ltd. Vs. Jogendra Nath Sen and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1866 of 1956
Judge
Reported inAIR1959Cal461
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16 and 20
AppellantStandard Tubewell and Engineering Works Ltd.
RespondentJogendra Nath Sen and anr.
Appellant AdvocateA.C. Gupta, ;Nirmal Ch. Chakravartti and ;Bibhuti Bhusan Bhattacharjee, Advs.
Respondent AdvocateKalipada Sinha, Adv.
Excerpt:
- j.p. mitter, j. 1. this rule is directed against an order of a learned subordinate judge holding, upon a preliminary issue, that he had jurisdiction to try the suit as against the defendant company, defendant no. 2.2. the issue as to jurisdiction was raised at the instance of the defendant company which took the objection that as no part of the cause of action alleged against it arose within the jurisdiction of the court and it did not carry on business within the said jurisdiction, the court could not entertain the suit,3. the learned subordinate judge by a lengthy judgment held that he had jurisdiction to try the suit.4. the suit is, in substance, a suit for dissolution of partnership. so far as the defendant company is concerned, there is not only a prayer for a declaration that it is.....
Judgment:

J.P. Mitter, J.

1. This Rule is directed against an order of a learned Subordinate Judge holding, upon a preliminary issue, that he had jurisdiction to try the suit as against the defendant company, defendant No. 2.

2. The issue as to jurisdiction was raised at the instance of the defendant company which took the objection that as no part of the cause of action alleged against it arose within the jurisdiction of the Court and it did not carry on business within the said jurisdiction, the Court could not entertain the suit,

3. The learned Subordinate Judge by a lengthy judgment held that he had jurisdiction to try the suit.

4. The suit is, in substance, a suit for dissolution of partnership. So far as the defendant company is concerned, there is not only a prayer for a declaration that it is a mere benamdar of the partnership consisting of the plaintiff and defendant No. 1, but also a prayer, in the alternative, for a declaration that the plaintiff and defendant No. 1 are equally entitled to the assets and funds earned and held by defendant No. 2 in proportion to their respective contributions made from the joint funds and from the assets belonging to the plaintiff and the said defendant No. 1. There is also the usual prayer for dissolution and other consequential reliefs.

5. It is not necessary to deal either with the history of the partnership between the plaintiff and defendant No. 1 or with the details of how the company, a private limited company, came to be formed. It is agreed that the question of jurisdiction must be determined upon the allegations made in the plaint. Admittedly, the company has its office at No. 54, Ganesh Chunder Avenue, within the Ordinary Original Civil Jurisdiction of this Court. There is no allegation that the company has any subordinate or branch office elsewhere. It is alleged by the plaintiff and admitted by the defendant company that the latter has a workshop at No. 16, Convent Road in the suburbs of Calcutta and within the jurisdiction of the court of the Subordinate Judge at Alipore.

6. Mr. Sinha appearing on behalf of the opposite parties has contended that as to jurisdiction, the suit as against defendant No. 2 was governed by Clauses (a) and (d) of Section 16 of the Code of Civil Procedure. He has further contended that defendant No. 2 could be said to be carrying on business and/or working for gain within the jurisdiction of the learned Subordinate Judge's Court. He has, lastly, contended that, in any event, a part of the plaintiff's cause of action against defendant No. 2 having arisen within the said jurisdiction, the suit was properly instituted in the court of the learned Subordinate Judge. Mr. Sinha, has, thus, also relied upon the provisions of Section 20 of the Code.

7. Mr. Atul Chandra Gupta appearing on behalf of the petitioner has, on the other hand, contended that the property, said to be partnershipproperty, is machinery and not realty and that, therefore, Section 16 of the Code has no application. He has, next, contended that Section 20 of the Code is not applicable either, as the company cannot be said to be carrying on business at its workshop in Entally and, in any event, a corporation cannot be said to personally work for gain.

8. A reference to paragraph 33 of the plaint shows that the only way the plaintiff sought to found jurisdiction was by pleading that defendant No. 2 carried on business and/or worked for gain at its workshop at No. 16, Convent Road, Entally. Mr. Sinha has, however, argued that the suit as against defendant No. 2 concerned immovable property. In support of this contention, he has relied upon the words 'constructed' and 'installed' appearing in paragraph 15 and the word 'workshop' mentioned in paragraph 33 of the plaint. In our view, the pleading in paragraph 15 or in paragraph 33 cannot possibly make out any case of any immoveable property being involved. There is no averment in paragraph 33 of the plaint as to the nature of the workshop or whether it was owned by the company. As for machinery, it should ordinarily be regarded as moveable property. The cases cited by Mr. Sinha as to the character of property where plants and machinery are permanently fixed or fastened to earth cannot have any bearing on this case, in the absence of any averment as to the nature of the machinery installed at the defendant's workshop. In our view, the plaintiffs pleading cannot possibly bring the case within Clause (a) or Clause (d) of Section 16 of the Code.

9. As to Section 20 of the Code, it is plain that the company cannot be said to be carrying on business at No. 16, Convent Road. There is no pleading that the company has its sole or principal office or even a subordinate office within the jurisdiction of the court of the learned Subordinate Judge. Mr. Sinha has argued that notwithstanding Explanation (II) to Section 20, the company can be said to personally work for gain at its workshop within the jurisdiction of the learned Subordinate Judge's Court. In our view, the expression 'personally works for gain' refers to an individual person and not to a company or a corporation. There is no express decision on the point, but it seems to us that were the phrase to apply to a corporation as well, Explanation (II) to the Section would have been redundant. Moreover, were the words 'works for gain' intended to be applied to a corporation as well, the word 'personally' would undoubtedly have been inappropriate.

10. Paragraph 33 of the plaint appears to us to have been, devoted to satisfying the requirements of Order 7 Rule 1(e) and (f) of the Code, but the pleading does not expose that any part of the plaintiff's alleged cause of action arose within the jurisdiction concerned. It is, however, clear from paragraph 33 of the plaint that the jurisdiction of the court of the learned Subordinate Judge was sought to be founded upon an allegaion that defendant No. 2 carried on business and/or worked for gain within the said jurisdiction. In our view, the plaint does not make out any case which would entitle the Court of the teamed Subordinate Judge to try this suit. That being the position, the other preliminary issues need not be considered.

11. For the foregoing reasons, the order of the learned Subordinate Judge is set aside and the Rule is made absolute. There will be no order as to costs.

B.K. Guha, J.

12. I agree.


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