Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 333 (JK)

AGFA India Pvt. Ltd. v. Bee Pee Traders

2005-12-01

J.P.SINGH

body2005
1. AGFA India Private Limited, seeks the transfer of suit filed by M/S Bee Pee Traders, against it in the Court of learned District Judge, Srinagar, to a Court of similar jurisdiction at Jammu. 2. It has been urged in the application that applicants™ firm is dealing in Medical items and related accessories such as CT, X-Ray films, etc. and the Company is an internationally acclaimed Company. The Company is stated to have appointed non-applicant - M/S Bee Pee Traders, as authorized dealer of entire range of AGFA branded medical films and chemicals for Srinagar, Leh and Ladakh region. 3. Central Purchase Committee of Health and Medical Education Department, Civil Secretariat, Jammu is stated to have invited tenders for supply of Group-B negative (X-ray films, etc.) for the year 2003-2004. M/S Khosla Enterprises is stated to have approached the applicants for negotiations, whereas the non-applicant-M/S Bee Pee Traders, did not enter into any sought of negotiations with the applicants. Rates quoted by M/S Khosla Enterprises, are stated to have been approved by Deputy Director Health Services, Srinagar. 4. It is stated that the non-applicant had issued few cheques to the tune of Rs. 5,12,491.00, which were dishonored. It is stated that in order to defeat the legal action at the hands of the applicants under Section 138 of Negotiable Instruments Act, non-applicant in order to harass the applicants, filed a complaint before J&K State Consumers Protection Commission at Srinagar. The complaint is stated to have been dismissed, whereafter yet another complaint is stated to have been filed before the Passenger Tax Magistrate at Srinagar, proceedings wherein were stayed by this Court. 5. In the aforementioned background, it is stated that the present suit for damages filed by the plaintiff/non-applicant at Srinagar, is yet another attempt to seek vengeance. It is stated that purpose of filing of suit is to harass the defendants/applicants. The applicants/defendants-Company submit that Srinagar being militancy affected area, there is always a threat perception for non-local people to contest the case, especially the civil suits, which involve strict follow up at different stages of the trial. It is stated that purpose of filing of suit is to harass the defendants/applicants. The applicants/defendants-Company submit that Srinagar being militancy affected area, there is always a threat perception for non-local people to contest the case, especially the civil suits, which involve strict follow up at different stages of the trial. According to the applicants/defendants-Company, they do not expect a fair trial at Srinagar because they may have to contest the suit in a hostile atmosphere, particularly when the non-applicant has openly threatened to bring around the applicants and force a decision for withdrawal of a case filed under Section 138 of the Negotiable Instruments Act at Mumbai Court. 6. Non-applicant/plaintiff has filed her objections in which it has been stated that applicants/defendants-Company are contesting the suit at Srinagar and have also engaged an Advocate in the matter since the date of receipt of summons in the case. It is stated that the Advocate is contesting the suit on each and every date of hearing and the applicants/defendants-Company have no hesitation in contesting the suit at Srinagar. The non-applicant submits that present application has been filed with a view to harass the non-applicant and deprive her of her right to prosecute the suit. 7. The non-applicant submits that she is a woman and, as such, would not be in a position to prosecute the suit at Jammu. It is further stated that M/S Khosla Enterprises, too, has been arrayed as a party defendant in the suit. This defendant has not been made party respondent in this transfer application. 8. The non-applicant submits that recovery of loss and damages occurred to her on account of unfair trade practices and price differences deliberately made by the applicants/defendants-Company with the non-applicant, as compared to their Jammu Dealer, M/S Khosla Enterprises, Jammu, is one of the disputes of non-applicant with the applicants/defendants-Company and for which the non-applicant has filed the suit in the Court at Srinagar. 9. The non-applicant alleges that she had approached the applicants/defendants-Company for price negotiation, but they had showed their inability to lower down price from rate of Rs. 6,884/-. It is stated that complaint before Consumer Forum was dismissed on the ground that the dispute did not fall within the definition of Consumer Dispute. 9. The non-applicant alleges that she had approached the applicants/defendants-Company for price negotiation, but they had showed their inability to lower down price from rate of Rs. 6,884/-. It is stated that complaint before Consumer Forum was dismissed on the ground that the dispute did not fall within the definition of Consumer Dispute. It is stated that in order to redress her grievance, the non-applicant/plaintiff has filed the suit in the Court of competent jurisdiction at Srinagar under legal advice. It is specifically stated by the non-applicant that rule of law is at command in Kashmir Valley as everywhere in the country and that the officials of applicants/defendants™ Company are often in Kashmir Valley. 10. Allegations made by the applicants/defendants-Company have been denied by the non-applicant/plaintiff. 11. Shri U.K. Jalali, learned senior counsel for the applicants, has referred to Jagatguru Shri Shankaracharya Jyotish Peethadhiswar and Swami Swaroopanand Saraswati v. Ramji Tripathi and others, reported as AIR 1979 Madhya Pradesh 50, to urge that a case has to be transferred if there is reasonable apprehension of a party to a suit that he might not get justice in the Court, where the suit is pending. He refers to yet another case titled Thounaojam Ningol Indrani Devi and others v. The Municipal Board of Imphal and others, reported as AIR 1958 Manipur 27, to urge that it is well settled that a case ought to be transferred, when a party reasonably apprehends that it is not likely to have a fair trial before a particular Court. 12. I have considered the submissions of learned counsel for the parties. Shri Jalali has sought transfer of suit, primarily, on two grounds viz., (i) the suit filed by plaintiff/non-applicant against the applicants/defendants is frivolous and that it has been filed only with a view to harass the applicants/defendants; (ii) it will be for the convenience of parties, if the suit is transferred to Jammu. Shri Jalali has urged that the defendants/Company have received threats from the plaintiff/non-applicant. 13. The first plea raised by Shri Jalali that suit filed by the plaintiff/non-applicant at Srinagar, is frivolous, cannot be considered at this stage, because such a plea cannot be adjudicated upon in the absence of sufficient material on records to justify even prima facie the view that suit is frivolous and intended to harass the applicants/ defendants. 13. The first plea raised by Shri Jalali that suit filed by the plaintiff/non-applicant at Srinagar, is frivolous, cannot be considered at this stage, because such a plea cannot be adjudicated upon in the absence of sufficient material on records to justify even prima facie the view that suit is frivolous and intended to harass the applicants/ defendants. A bald statement by the applicants/ defendants is, thus, not sufficient to accept this plea. This plea is accordingly rejected. 14. The second submission of Shri Jalali that non-applicant/plaintiff has openly threatened to bring around the applicants/defendants and force a decision of the withdrawal of the case filed under Section 138 of Negotiable Instruments Act at Mumbai Court, on the face of it, is unjustified. No material worth the name has been brought on records to justify this allegation. That apart, it cannot be believed that a Company of international repute, as the applicants claim to be, would be threatened by Qamar-n-Nisa Khan, a lady, who has been shown in this petition as a Managing Partner of the non-applicant/plaintiff. 15. I find force in the submission of learned counsel for the non-applicant/plaintiff that allegations of threat, coined by the applicants/defendants and attributed to a lady representing the non-applicant/plaintiff, need to be rejected. In the absence of any material on records, I do not find force in the second submission of Shri Jalali. 16. The third submission of Shri Jalali that it will be for the convenience of the party to have the trial of suit at Jammu, too, is unfounded because a plaintiff, who is dominus litis, cannot be compelled to prosecute the lis in a Court, where she does not agree that her lis to be tried. Learned counsel appearing for the non-applicant/plaintiff has categorically stated at the time of hearing that it will be highly disadvantageous to the non-applicant/plaintiff-lady, to come over to Jammu on each date of hearing to prosecute the suit for damages, which has been filed by her at Srinagar. 17. I have noticed certain documents, which have been placed on records by the applicants/defendants, which show that both the learned senior counsel and local counsel engaged by the Company, have been contesting cases at Srinagar. One of such cases is a complaint filed by the non-applicant/plaintiff against the applicants/defendants before J&K State Consumers Protection Commission, Srinagar. 17. I have noticed certain documents, which have been placed on records by the applicants/defendants, which show that both the learned senior counsel and local counsel engaged by the Company, have been contesting cases at Srinagar. One of such cases is a complaint filed by the non-applicant/plaintiff against the applicants/defendants before J&K State Consumers Protection Commission, Srinagar. The applicants/defendants have contested this complaint, and that too with success at Srinagar. This fact clearly demonstrates that applicants/defendants-Company do not feel any difficulty in contesting cases against them at Srinagar. 18. Plea of the applicants/defendants-Company that Srinagar is militancy-affected area and there is always threat perception for non-local-people, is too vague a plea, which needs hardly any notice. The applicants/defendants-Company having contested their cases against them in the Kashmir Valley, it is not open to them to say that non-local cannot contest its cases in Kashmir Valley. 19. All the points raised by Shri Jalali, therefore, fail. It needs to be noticed that application filed by the applicants/defendants-Company suffers from a patent defect. In that M/s Khosla Enterprises, which has been arrayed as defendant No.3 in the suit for damages by the non-applicants/plaintiff, has not been arrayed as party respondent in this Transfer Application. In the absence of M/s Khosla Enterprises, present Transfer Application, even otherwise, is not maintainable. 20. In the above view of the matter, this Application is without any merit, which is accordingly dismissed.