Anand Silk Stores v. Hastings Mills Ltd. — 1975 DIGILAW 168 (CAL)

JUDGMENT The judgment of the Court was as follows : Mookerjee J. Messrs. Anand Silk Stores filed these applications under sections 22 and 23 of the Civil Procedure Code, inter alia, praying that the eight Money Suits brought by Messrs. Hastings Mills Ltd. the opposite party No. 1 against it and others as defendants in the Second Court of the Subordinate Judge, Chinsurah be transferred to the High Court at Delhi for trial. 2. Messrs. Hastings Mills Ltd., the opposite party No.1 has instituted these money suits against the petitioner and the defendant opposite parties inter alia, on the allegation that Messes. Anand Silk Stores at material times had acted as' the Sole Selling Agent of synthetic fabrics, doth and fabrics manufactured by it at its mill situated at Konnagar for the States of Punjab, Himachal Pradesh, Haryana, Jammu and Kashmir and of Delhi on certain terms and conditions. According to the plaintiffs the said agreement was entered into at 14, Netaji Subhas Road, Calcutta. Pursuant to and in terms of the said agreement, the defendant No. 1 (the present petitioner) had obtained orders from the defendant No. 2(opposite party No.2) for purchase of the plaintiff's products and the defendant No.1 bad booked ,or placed orders in writing on the terms set out in paragraph 4 of the plaint. The plaintiff further claimed that from time to time it had submitted bills to the defendant No.1, who from time to time paid diverse sums of money and had returned certain quantities of plaintiff's products. According to the plaintiff, after giving credit for the same, the sums of money mentioned in the respective plaints of these suits had become due and payable by the defendants to the plaintiff. The plaintiff also claimed interest on the basis of the alleged agreement on the said alleged outstanding amount. In the alternative, the plaintiff claimed the sums mentioned in the respective plaints as compensation for the alleged benefits enjoyed by the defendants from the goods delivered by the plaintiff to the defendant No. 1. According to the plaintiff the cause of action arose at Konnagar within the jurisdiction of the Subordinate Judge's Court, Chinsurah. 3. In the alternative, the plaintiff claimed the sums mentioned in the respective plaints as compensation for the alleged benefits enjoyed by the defendants from the goods delivered by the plaintiff to the defendant No. 1. According to the plaintiff the cause of action arose at Konnagar within the jurisdiction of the Subordinate Judge's Court, Chinsurah. 3. The petitioner has now filed written statements in these suits inter alia, denying the claim made by the plaintiff in the aforesaid suit filed in the 2nd Court of the Subordinate Judge at Chinsurah Subsequently on March 13, 1965 the petitioner has instituted a suit against Messrs. Hastings Mills Limited the opposite party No. 1 in the High Court at Delhi. The purchasers have been made proforma defendants in the said suit. To the Delhi suit the petitioner has inter alia prayed that Messrs. Hastings Mills Limited be required and directed to render full and detailed accounts of the transactions entered into by it with different parties in connection with sale of their products. It has also prayed that the defendant No.1 Mill be directed to produce an books of accounts, papers, vouchers contracts, etc. A prayer for appointment of a Commissioner for taking account between the parties has been also made in the plaint of the said suit filed by the present petitioner in the High Court at Delhi. A copy of the said plaint has been made Annexure 'B' to the petition filed by it in this Court. 4. The petitioner contends that the aforesaid eight suits filed by the opposite party No. 1 in the 2nd Court of the Subordinate Judge at Chinsurah should be transferred to the High Court at Delhi on the grounds that such transfer is necessary in the interests of justice and for balance of convenience. 5. Section 23 of the Code of Civil Procedure specifics to what Court an application under Section 22 of Code shall lie. Mulla on the Code of Civil Procedure, Volume I, 13th Edition at page 163 has stated : "Sections 22 and 23 are complimentary to each other. While Section 22 confers a power on the defendant to apply for transfer subject to the conditions mentioned therein, Section 23 specifies the Court to which an application should be made". 6. Mulla on the Code of Civil Procedure, Volume I, 13th Edition at page 163 has stated : "Sections 22 and 23 are complimentary to each other. While Section 22 confers a power on the defendant to apply for transfer subject to the conditions mentioned therein, Section 23 specifies the Court to which an application should be made". 6. It is not disputed by the petitioner that the present transfer applications do not come within the scope of sub-sections (1) and (2) of Section 23. To our view, the present applications of the petitioner also do not fulfil the requirements of the sub-section (3) of Section 23 upon which the learned Advocate for the petitioner has relied. The suit brought by the present petitioner is not pending in any Court subordinate to the High Court at Delhi but the same is pending before a learned Judge of the Original Side of the High Court at Delhi. 7. Rankin, C.J. and C. C. Ghose, J. in (1) Hyat Mahomed and others v. Shaikh Mannu and others, AIR 1927 Cal 290 dismissed an application for transfer to the Court of Subordinate Judge of Arrah of a suit filed in the Original Side of this Court for setting aside a decree passed by the said Subordinate Judge of Arrah. The learned Judges held that section 23 of the Code of Civil Procedure did not govern the case, so as to make the Division Bench of this Court a proper forum to which such application could be made. Their Lordships declined to hold that a Judge of the Original Side was a Court subordinate to High Court. "He is the High Court and, in my judgment, we would be going contrary to authorities and upsetting well settled principles if we entertained the present application". This Division Bench decision is binding upon us and also we respectfully agree with the proposition of Jaw laid down in the said decision. Therefore, the present application for transfer of the suits brought by Messrs. Hastings Mills Ltd. in the 2nd Court of Subordinate Judge, Chinsurah to the Original Side of the Delhi High Court is not maintainable under Section 23(3) of the Code. 8. The decision of Das Gupta, J. (as he then was) and Guha, J. in (2) Lachmi Narayan Jute Manufacturing Co. v. Dwip Narayan Singh. AIR 1956 Cal 65 which was cited by Mr. 8. The decision of Das Gupta, J. (as he then was) and Guha, J. in (2) Lachmi Narayan Jute Manufacturing Co. v. Dwip Narayan Singh. AIR 1956 Cal 65 which was cited by Mr. Roy, learned Advocate for the petitioner is clearly distinguishable. The learned Judges allowed an application for transfer of a money suit pending in the 2nd Court of Subordinate Judge, Hooghly to the Original Side of this Court in exercise of the powers of this Court under Section 24 of the Code. Their Lordships at page 66 of the reports observed that the money suits be withdrawn therefrom and tried in the Original Side of this Court. Clearly, they were making the said order in terms of clause (b) (i) of sub-section (1) of Section 24 of the Code. Their Lordships in Lachmi Narayan Jute Manufacturing Co. v. Dwip Narayan Singh (supra) did not lay down either expressly or by implication that the Original Side of this Court was subordinate to the Division Bench on its appellate side for the purposes of Section 24 of the Code of Civil Procedure, and the point did not arise for decision in the said case. 9. The learned Advocate for the petitioner has next contended that this Court in exercise of its inherent powers under section 151 of the Code should transfer the suits pending in the 2nd Court of the Subordinate Judge, Chinsurah to the Original Side of the High Court of Delhi. In this connection he relied upon the observations of Nimatullah and Rachhpal Singh, JJ. in (3) (Raja Yuvaraj) Dutta Singh v. Tejdatt Singh and others, AIR 1934 Allahabad 14. The learned Judges in the said case had distinguished the above decision of this Court in (1) Hyat Mohomed and others v. Shaikh Mannu and others (Supra). Needless to say in view of the binding nature of the said precedent we are bound to follow the decision of Rankin, C. J. and C.C. Ghose, J, in (I) Hyat Mahomed and others v. Shaikh Mannu and others (Supra) in preference to the contrary view, if any, expressed by the said Division Bench in the Allahabad High Court at Page 16 of AIR 1934 Allahabad 14. The said Division Bench in (Raja Yuvaraj) Dutta Singh's case (supra) ultimately relied upon the provisions of Section 151 of the Code of Civil Procedure for passing an order that the proceedings in a suit before the Subordinate Judge, Aligarh be stayed with liberty to the plaintiff of the said suit to apply for the return of the plaint with a view to presenting it before the Chief Court of Oudh, where another suit between the same parties was pending. The learned Judges made the above orders because they were of the view that the plaintiff of the Aligarh suit had chosen the said forum in utter disregard of the convenience of both parties, for some ulterior object, and in abuse of his position as' dominus litis. Mr. Roy, learned Advocate for the petitioner has himself drawn our attention to the Full Bench decision of the Rangoon High Court in (4) R.M V.R.M. Ramaswamy Chettyar v. V. T. Chettyar (Firm) and another, AIR 1934 Rangoon 265 which overruled the earlier Division Bench decision of Rangoon High Court in (5) Ramanathan Chetty v. Ramanathan Chetty, AIR 1923 Rang 22 which was referred at page 16, right and column of AIR 1934 Al1ahabad 14. The learned Judges of the said Full Bench of Rangoon High Court held that it was true that Section 23 did not prescribe the Court to which an application for transfer under Section 22 should be made in a case filed in the High Court which might have been -filed in another High Court or in a Court subordinate to such other High Court, still the High Court for the ends of justice may transfer the case to another Court where another suit was pending. The Full Bench further held that such application should be made in the Original Side of the High Court. The Judges of the Full Bench of Rangoon High Court did not agree with the observations of Rankin, C.J. and Bucklana, J. in (6) Manindra Chandra Nandy v. Lalmohull Roy and others, AIR 1929 Cal. 358. The Full Bench further held that such application should be made in the Original Side of the High Court. The Judges of the Full Bench of Rangoon High Court did not agree with the observations of Rankin, C.J. and Bucklana, J. in (6) Manindra Chandra Nandy v. Lalmohull Roy and others, AIR 1929 Cal. 358. In Manindra Chandra Nandy v. Lal Mohun Roy and others (Supra) at page 364 right hand column of the reports, the Division Bench had observed that Sections 22 and 23 did not seem to take effect upon the original jurisdiction because Section 23 in pointing out the Courts that were to exercise the powers given by Section 22 spoke of Courts subordinate to the High Courts and the High Court on the Original Side did not seem to be brought effectively within Section 23. 10. The petitioner has neither p1eaded nor has established before us that Messrs. Hastings Mills Limited with any ulterior motive has brought the above money suits against it and other defendants in the 2nd Court of !he Subordinate Judge. Chinsurah in abuse of process of law or that the said suits are harassing and vexatious. We are also not convinced that the transfer of these suits to the High Court at Ddhi would be for ends of justice. Accordingly, in this case it is not necessary for us to finally decide whether independently of the provisions of Sections 22 and 23 of the Code the High Court possesses any power to transfer a suit pending in a Court subordinate to it or in its Original Side for trial to a different High Court. Mr. Bhabra, learned Advocate appearing on behalf of the opposite party No. 1 has drawn our attention to the averments in the different paragraphs of the plaints of these suits. According to him the suits are in substance for recovery of price of goods sold and delivered by the plaintiffs within the jurisdiction of the 2nd Court of Subordinate Judge, Chinsurah. The plaintiff in its plaints has averred that the appointment of the petitioner as its sole Selling Agent was allegedly made within the jurisdiction of the said Court. The goods manufactured in the mill of the plaintiff opposite party No.1 situated at Konnagar were despatched from a place within the jurisdiction of the Court in pursuance of the orders placed with the plaintiffs. The goods manufactured in the mill of the plaintiff opposite party No.1 situated at Konnagar were despatched from a place within the jurisdiction of the Court in pursuance of the orders placed with the plaintiffs. According to the plaintiffs bills wert issued from the plaintiff's mill at Konnagar and the defendant was liable to pay the sum by it within the jurisdiction of the said Court. Thus, according to the plaintiffs opposite parties the causes of action for these suits arose within the jurisdiction of the aforesaid Court. 11. Mr. Roy. learned Advocate for the petitioner, submitted before us that for the purpose of these applications under section 22 read with Section 23 of the Code the petitioner does not dispute the territorial jurisdiction of the learned Subordinate Judge, 2nd Court, Chinsurah to try these suits brought by Messrs. Hastings Mills limited against the petitioner and others. But the petitioner in its written statements filed in the Court below has disputed that any part of cause of action arose within the jurisdiction of the 2nd Court of Subordinate Judge, Hooghly, or that the said Court has any jurisdiction to try the suit. 12. In our view, the mere allegation that the balance of convenience was in favour of trial of the suits in Original Side of the Delhi High Court is not a sufficient reason for over riding the principle that when a suit can be brought in more than one Court the plaintiff as dominus litis has a right to choose in which particular Court it would institute the said suit. 13. Mr. Roy, learned Advocate for the petitioner himself at one statge submitted that the balance of convenience must be so overwhelming as to override the plaintiff's choice in the matter. Mr. Roy in his fairness submitted that in view of the averments made in the plaints he was unable to put his clients' case so high as to claim that the institution of these suits in the 2nd Court of Subordinate Judge, Chinsurah was an abuse of process. 14. Sir Ashutosh Mookerje, in (7) Umatul Mehdi v. Kulsoom, (1909) 10 CLJ 208 at page 211 had observed: "There can be no dispute also that no order for transfer ought to be made unless we are satisfied that such an order is absolutely necessary in the interest of justice. 14. Sir Ashutosh Mookerje, in (7) Umatul Mehdi v. Kulsoom, (1909) 10 CLJ 208 at page 211 had observed: "There can be no dispute also that no order for transfer ought to be made unless we are satisfied that such an order is absolutely necessary in the interest of justice. We do not suggest tint our judicial discretion can be fettered by any hard and fast rule but the object which we have to keep in view is to determine where the balance of convenience lies. The jurisdiction of a superior Court to transfer a suit from one Subordinate Court to another ought to be, in the words of Lord Justice Callan in Mchendry v. Lewis (1882) 22 Ch. D. 397, exercised with extreme caution. The choice of forum given to a plaintiff by the Legislature ought not to be lightly interfered with, and the Court will not transfer a suit properly laid, except upon proof of special circumstances. A well recognised ground exists where the convenience of necessary witnesses and the ends of justice will be promoted by the transfer; but the ground alleged must be clearly established". 15. The mere fact that a part of the oral and documentary evidence which the petitioner might adduce in these suits would be available at Delhi and in the l1eighbouring States would not be a sufficient ground for holding that in the interest of justice suits already filed in the 2nd Court of Subordinate Judge, Chinsurah should be transferred to the High Court at Delhi. We are not convinced that the balance of convenience is in favour of transferring the suits filed by the Opposite Party No.1. It might be more convenient to the petitioner if these suits brought by the opposite party no.1 are tried by the High Court' at Delhi. But it does not necessarily follow that the balance of convenience is in favour of transferring those suits to the said Court. After all in considering the balance of convenience the Court should weigh the substantial mischief which is likely to be caused if the petitioner's prayer for transfer is refused with that which is likely to be caused to the opposite party no.1 if the petitioner's said prayer is allowed. There are also no compelling or over riding circumstances for depriving the plaintiffs opposite-parties' choice of forum for instituting the suits in question. There are also no compelling or over riding circumstances for depriving the plaintiffs opposite-parties' choice of forum for instituting the suits in question. We have, however, refrained from dealing in detail with the different materials which according to Mr.Roy would be relevant for proper disposal of these suits as the same might impede a fair trial of the suits. 16. There are other reasons why no order of transfer should be made as prayed for by the petitioner. The petitioner at the time of making these applications for transfer had suppressed that it had previously made an application under Sections 10, 22 and Section 151 read with Order 39 Rules 1 and 2 of the Code of Civil Procedure before the learned Single Judge in the High Court at Delhi praying that an adinterim injunction be issued restraining the defendant No.1 in the said suit (Messrs. Hastings Mills Limited) from proceeding with its money suits against it and others in the 2nd Court of Subordinate Judge, Chinsurah, It had also prayed that the trial of these suits brought by present opposite party no. 1 be stayed till the disposal of the suit brought by the petitioner in the High Court at Delhi for rendition of accounts. 17. On April 29, 1975, Prithvi Raj, J. dismissed the said application of the petitioner, inter alia, observing: "The mere fact that Chinsurah Court is situate at a long distance from Delhi or that most of the witnesses are from Delhi, Punjab, Haryana, Jammu and Kashmir and Himachal Pradesh would not by itself be sufficient ground to hold that the previous suit filed by the defendants are vexatious when the previous suits being instituted in a competent Court". 18. If we were aware of this order passed by Prithvi Raj J. on May 8, 1975 we might not have entertained these applications for transfer at all. Thus, the petitioner is guilty of suppression of the above material facts. 19. We are unable to give any contenance to the submission of the learned Advocate for the petitioner that the transfer of these suits be made to the Delhi High Court to avoid any possibility of conflicting judgments. Thus, the petitioner is guilty of suppression of the above material facts. 19. We are unable to give any contenance to the submission of the learned Advocate for the petitioner that the transfer of these suits be made to the Delhi High Court to avoid any possibility of conflicting judgments. In this connection, the learned Advocate for the petitioner has relied upon the observations of Ramendra Mohan Datta, J. in (8) the General Counsel of the Church of India and another v. Niranjan Ghosh and others, 75 CWN 489 concerning a transfer of the suit pending in the City Civil Court at Calcutta to the Original Side of this Court. In our view, the said decision has no manner of application because in the said case Ramendra Mohan Datta, J. was considering when a suit pending in a Court subordinate to the High Court at Calcutta should be transferred to the Original Side of the High Court. Therefore, on such consideration we cannot override the choice of the plaintiff to choose its forum for institution of its suits. Further, in case same matters are directly and substantially in issues in more than one suit there are ample provisions for avoidance of conflicting and contradictory decisions. 20. Mr. Bhabra, learned Advocate for the opposite party no.1 with some force contended before us that when the petitioner in his written statements filed in the suits pending in the 2nd Court of Sub• ordinate Judge, Chinsurah has challenged the territorial jurisdiction of the said Court to entertain the suits, therefore, it cannot maintain these applications under Section 22 read with Section 23. Section 22 presupposes that a suit which might be instituted in one of such Courts. The petitioner in his written statements has pleaded that the suits cannot be instituted in the 2nd Court of Subordinate Judge, Chinsurah and the said Court has no territorial jurisdiction. Therefore, the petitioner cannot take a contractory stand and urge that the requirements of Section 22 have been fulfilled. 21. In this connection Mr. Bhabra, learned Advocate for the opposite party no. I relied upon the Division Bench decision of Allahabad High Court in (9) Firm 8abu Lal Girdharilal v. Seth Kotumal, AIR 1941 Allahabad 27. Therefore, the petitioner cannot take a contractory stand and urge that the requirements of Section 22 have been fulfilled. 21. In this connection Mr. Bhabra, learned Advocate for the opposite party no. I relied upon the Division Bench decision of Allahabad High Court in (9) Firm 8abu Lal Girdharilal v. Seth Kotumal, AIR 1941 Allahabad 27. The said Division Bench of the Allahabad High Court held that an application under Section 23 (3) of the Code of Civil Procedure for transfer of the suits from the Munsiffs Court at Banaras to the Subordinate Judge's Court at Dhahabad cannot be allowed in view of his plea of want of jurisdiction of Banaras Court. Since we are of the opinion that in the instant cases the requirements of the provisions of subsection (3) of Section 23 have not been fulfilled and further the transfer of these money suits to the Original Side of the High Court at Delhi was not necessary for the ends of justice, we need not say anything further regarding the above submissions of the learned Advocate for the opposite party no.122. Although the petitioner in the cause title of its applications filed in the Court had mentioned Section 24 of the Code the only prayer in this application was for ordering transfer of these money suits to the Original Side of the High Court at Delhi. Therefore, we are not called upon to decide whether for ends of justice these suits should be transferred to any other Court subordinate to this High Court. Subject to these observations, we discharge these Rules. There will be no order as to costs. Bhattacharyya. J.: I agree.