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2014 DIGILAW 784 (CAL)

Kanco Enterprises Ltd. v. State Bank of India

2014-08-18

SOUMEN SEN

body2014
JUDGMENT : Soumen Sen, J. Although this application is stated to be an application for rejection of the plaint but the learned counsel appearing on behalf the State Bank of India has urged that the plaint may be returned to the Civil Court having the jurisdiction at Gujarat. In view of the fact that the balance of convenience is in favour of the suit being tried by a Civil Judge at Gujarat within whose jurisdiction a substantial cause of action has arisen. 2. It is settled law that even if a minuscule cause of action has arisen within the jurisdiction to this Court, this Court can proceed with the hearing of the suit, notwithstanding the fact that substantial part of the cause of action might have arisen outside the jurisdiction. However, when an issue is raised with regard to the balance of convenience then the Court is to see whether justice would require the suit to be tried at place where the substantial cause of action has arisen and the defendant would not be prejudiced or suffer any impediment in conducting trial. In the instant case as the application would disclose, substantial cause of action has arisen at Gujarat. The averment made in the plaint as well as the document relied upon by the plaintiff in support of their averment in the plaint would go to show that substantial part of cause of action has arisen at Gujarat. The factory was located at Gujarat. The establishment availed the loan facility at Gujarat. The loan was disbursed at Gujarat. Moreover, there are proceedings pending between the parties at Gujarat. According this court is not the natural forum. 3. Mr. Abhrajit Mitra, learned senior counsel appearing on behalf of the plaintiff has fairly brought to the attention of this Court a Division Bench judgment of our Court in Mahanadi Coalfields Ltd v. M/s. Shyam Metallics & Energy Ltd & Ors (MAT No.731 of 2011, CAN No.5109 of 2011, WP No.6197 (W) of 2011) decided on 26th September, 2012 and submitted that the matter may be sent to the Principal Civil Court having jurisdiction. 4. Mr. 4. Mr. Joy Saha, learned counsel appearing on behalf of the applicant refers to the decisions reported at 1994(2) CHN (CAL) 472, (Sambhu Prasad Agarwal v. I.C.D.S. Ltd & Ors.), 2010(1) CHN (CAL) 191, (Karma Lakelands Pvt. Ltd. v. Ravi Goel & Ors.), 2011 (1) CHN (CAL) 553, (State of West Bengal & Ors. v. National Dairy Development Board & Anr.) and submitted that in all the aforesaid decisions it has been decided that if the continuation of action in this Court is found to cause injustice and this forum is not the natural forum, then the leave granted under Clause 12 can be revoked. In the instant case, as I have indicated in the earlier paragraphs, the substantial cause of action has arisen at Gujarat and the balance of convenience lies in favour of the suit being tried at Gujarat. This Court has very little nexus with the plaintiffs cause of action of the suit. 5. In view of the aforesaid, the application for revocation of leave under Clause 12 is allowed. Since, it cannot be doubted that a part of the cause of action, however, insignificant may be, has arisen within the jurisdiction of this Court and this Court is inclined to revoke the leave purely on the ground of balance of convenience, the interim order already passed shall continue for a period of six weeks or until any order that may be passed by the Civil Judge while accepting the suit and proceed with the matter, whichever is earlier. 6. The plaint may be, accordingly, returned to the Civil Judge. The plaintiff shall withdraw the plaint and present it before the principal Civil Court, having jurisdiction, upon intimation to the defendant. The plaintiff would be entitled to renew the prayers before the Civil Judge for appropriate reliefs, if so advised. The plaint is, accordingly, directed to be withdrawn by the plaintiff for being carried to more appropriate convenient forum. The plaintiff may obtain return of the plaint upon filing a photostat copy thereof duly certified by the Advocate-on-Records for the purpose of record. 7. It is made clear that I have not gone into the merits of the matter and the appropriate forum shall decide the matter in accordance with law without being uninfluenced by any observation made with regard to the merits of the matter. 7. It is made clear that I have not gone into the merits of the matter and the appropriate forum shall decide the matter in accordance with law without being uninfluenced by any observation made with regard to the merits of the matter. On return of the plaint, this suit shall not be shown as pending before this Court. 8. The application is, accordingly, allowed. The Registrar, Original Side and Departments including computer section are to act on the basis of the server copy to be communicated by the Assistant Registrar of this Court. 9. Certified website copies of this order, if applied for, be urgently supplied to the parties upon compliance with all the requisite formalities.