1. This is a suit upon two promissory notes for Rs. 35,000 and Rs. 2,716, respectively, to which there appears to be very little defence either upon facts or upon law.
2. No evidence was called before me. The onus, as far as producing evidence was concerned, was on the defendants as the execution of the notes was admitted. There was, however, evidence before the Court in the form of certain testimony taken on commission.
3. Numerous defences were outlined in the written statement. But when it came to the question of argument, I was informed that the defence rested upon a single contention in relation to the jurisdiction of the Court having regard to the fact that the plaintiff here was not the original holder of the notes, but was an assignee for value. It was contended, on the authority of three decisions of my brother Panckridge, that the formal leave to sue under Clause 12 of the Letters Patent of this High Court should not have been given and ought to be revoked by me because the assignment, which took place within the jurisdiction and on which the jurisdiction of this Court is founded, was brought about, not tin a bona fide manner but with the object of embarassing the defendants.
4. Reliance was placed upon the evidence-in-chief and the cross-examination of the witness on commission. She was a lady and she was asked about the assignment of the promissory notes and she described how it took place at the office of a firm of solicitors, not very far from this Court, and now the consideration for the assignment and the endorsement was the handing over of another promissory note of a considerable value and the payment in cash of Rs. 5,000. If this had not been done, the jurisdiction of this Court could not have been invoked because the actual execution of the note, as I am informed, took place 'outside the jurisdiction, although it may be noted that it did not take place very far outside.
5. Reliance has been placed, as I said, upon three cases reported in 40 C. W. N. The first one is at p. 161 Kalooram Agarwalla v. Jonistha Lal : AIR1936Cal349 . The head-note runs as follows:
Where on an application by the defendant for revocation of leave obtained by the plaintiff, on the assignment of a promissory note, to sue on the Original Side of the High Court at Calcutta under Clause 12 of the Letters Patent, it was found that the assignment took place within jurisdiction on the day before the expiry of the period of limitation, that the promissory note had been originally executed by the defendant outside jurisdiction in Manbhum, the sum at stake was not a large one and there was no likelihood of any issue being raised which the local tribunal would not be competent to try and that the circumstances of assignment suggested collusion for the purpose of creating jurisdiction, leave under Clause 12 was revoked.
6. And in the course of his judgment my learned brother Panckridge made use of these expressions:
In my opinion on the facts as set out, leave ought not to have been granted.
7. The learned Judge continues:
Various arguments nave bean advanced by the learned Standing Counsel on behalf of the plaintiff. He points out that under the Civil Procedure Code a suit can be instituted in any Court within whose jurisdiction any part of the cause of auction arose, and that there is no question of the granting or refusal of leave. This is true, but I do not think that the fact that in a mofussil Court there is no way of preventing unnecessary hardship in a case like this is a reason for allowing the discretionary jurisdiction of this Court to be used to inflict a similar hardship.
8. So much for that case which was entitled Kalooram Agrawalla v. Jonisthe Lal : AIR1936Cal349 . In the result the learned Judge revoked the leave to sue on the Original Side of this Court, which another Judge had already granted.
9. So, too, in the next case, which is reported at p. 164 and is entitled Daulatram Rawatmull v. Maharajlal : AIR1936Cal219 , the learned Judge took the same course. He again revoked an order of a Judge of this Court giving leave to sue under Clause 12. The head-note to that case reads as follows:
Where defendants who were land-holders in the District of Monghyr had borrowed money and purchased commodities for personal use from a trading firm of the locality and on an adjustment of the account gave a promissory note for such debts and the same was assigned to a person in Bhagalpur who assigned it to a relation of his in Calcutta for valuable consideration and the litter obtained leave to sue in the Calcutta High Court under Clause 12 of the Letters Patent, leave was revoked on defendants' application on the ground that when people take an assignment of a promissory note they should be prepared to enforce their claim either in the Court within whose jurisdiction the makers reside or in a jurisdiction where a part of the cause of section with which the makers are directly concerned has arisen.
If the defendants were a mercantile firm, the result might have been different by reason of the incidents of negotiability attached to a promissory note.
10. In that case the learned Judge particularly considered the arguments advanced by Mr. S.C. Bose who appeared there to argue contra to the proposed revocation and who now appears before me in this case for the defendant, In dealing with the learned Counsel's submissions Panckridge, J. said this:
The branch of the argument advanced by Mr. Bose which has attracted me most is his submission that if people choose to execute a negotiable instrument. they must be held to contemplate the possibility of its passing from hand to hand by endorsement and delivery and of its eventually getting in the ordinary course of affairs into the hands of some one who may elect to institute proceedings in a Court which does not suit the convenience of the makers of the note. Were the defendants in this case a mercantile firm, I am not sure that this argument would not have turned the scale in favour of the plaintiffs but they are described as land-owners.
11. So it must be observed there that the learned Judge, presumably, would not have directed this revocation of the leave given by his predecessor if, by accident, the parties before him had been business or commercial men.
12. In the third case, however, the learned Judge did not take the step of revoking the leave which had been given at the launching of the suit. That was a case reported immediately after the decision to which I have just referred, by the name of Harnathrai Binjraj v. Sew Prasad Singh : AIR1936Cal230 .
13. It is for me now to make up my mind as to whether the facts in this case are in the same category as those with which my learned brother was dealing, and to decide also whether I can agree with his view of the law with regard to the principle involved.
14. I am not at all convinced that on the facts before me, scanty as they are, this assignment, admittedly for value was brought about simply for the purpose of embarassing the defendants and for the purpose of bringing the case within the jurisdiction of the Original Side of this High Court, although, no doubt, the question of convenience was considered by the persons who eventually decided upon buying and parting with the note. Nor am 1 satisfied that there was hardship upon the defendants, more especially because the note was executed quite close to Calcutta, as I have already pointed out and therefore there would not be this question of difficulty of bringing witnesses up to give evidence here if they wished so to do as there appears to have been in the case before-my learned brother. Holding this view therefore on the facts it seems necessary for me to say very little about the view of the law expressed by my learned brother. I can only say this that I have the misfortune to differ from what appears to have been the general trend of his observations with regard to his treatment of the holders or assignees of negotiable instruments who are suing in this Court under the jurisdiction dealt with in Clause 12. It seems to me that if you are going to discriminate between plaintiffs and defendants who are interested in negotiable instruments on the grounds of hardship or humanity, or even on the ground of legitimate collusion to assign, you are striking at the whole root of the law of negotiability as laid down not only in the Negotiable Instruments Act but in the time-honoured principles of the Law Merchant.
15. I am not satisfied in my own mind that because a person happens to be a private individual and the holder of, let us say, a simple bill of exchange, he should be treated on a different footing in law to a commercial man through whose hands instruments of negotiability are daily passing.
16. For these reasons I shall give judgment in this case for the plaintiff as prayed with costs, including costs of the commission, with interest at the contract rate of 7 1/2 per cent. up to the date of judgment and after judgment until realisation at the rate of 6 per cent. The undertaking already given by the defendants not to part with their landed properties to continue for six weeks after the signing of the-judgment.