M. Velu Udaiyar and V. Muthusamy vs T. Perumal

T. Mathivanan, J.—This petition is filed u/s 24 of the Code of Civil Procedure, praying to withdraw the suit in O.S. No. 11 of 2009 from the file of the Subordinate Court, Tiruppur and transfer to the file of the Subordinate Court, Pudukkottai to be tried along with the suit in O.S. No. 135 of 2006.

One Samikannu of Pudukkottai has filed the suit in O.S. No. 135 of 2006 against the Petitioners herein before the Subordinate Court, Pudukkottai, for recovery of a sum of Rs. 3,00,000/-based on a promissory note, dated 10.02.2003.

Again the said, Samykannu has filed another suit in O.S. No. 11 of 2009 against the Petitioners on the file of the Subordinate Court, Tiruppur, for recovery of a sum of Rs. 3,00,000/-. The allegations in the above suit are not genuine. The said Samikannu was doing a money lending business and was also doing business on agricultural produces. The Petitioners used to avail hand-loan from the Plaintiff for meeting out their incidental expenses. He would also collect the loan amount at the time of harvest and the money transactions between the said Samikannu and Petitioner would be settled. Whenever the loan is extended, the said Samikannu used to receive blank promissory note from the Petitioners. Since, the Petitioners are uneducated and rustic villagers, they would sign in the blank promissory note at the time of receiving money. Taking undue advantage of one of such signed promissory notes, the said Samikannu had instigated his elder brother''s son T. Perumal, who is the Respondent herein, to file the suit in O.S. No. 11 of 2009 on the file of Subordinate Court, Tiruppur, for the recovery of a sum of Rs. 3,00,000/-based on a promissory note, dated 14.06.2007 as if it was executed in favour of the Respondent herein by the Petitioners. Virtually, Samikannu had indirectly filed a suit in O.S. No. 11 of 2009 on the file of the Subordinate Court, Tiruppur through his elder brother''s son. Hence, the petition is filed for the transfer of the suit in O.S. No. 11 of 2009 from the file of the Subordinate Court, Tiruppur.

Heard both sides.

The learned Counsel for the Petitioner has submitted that the Subordinate Court, Tiruppur does not have jurisdiction to entertain the suit in O.S. No. 11 of 2009 and therefore that suit has to be necessarily transferred to the file of the Subordinate Court, Pudukkottai to be tried along with the suit in O.S. No. 135 of 2006.

Mr. G. Arockiasamy, learned Counsel for the Petitioners has also added that the Respondent should have filed the suit in O.S. No. 11 of 2009, before the Court within whose jurisdiction the Petitioners/Defendants are actually residing as contemplated u/s 20 of the Code of Civil Procedure.

Section 20 of the CPC reads as follows:

Section 20. Other suits to be instituted where Defendants reside or cause of action arises.-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) the Defendant, or each of the Defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carrie son business ,or personally works for gain; or (b)any of the Defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the Defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or.

(c)the cause of action, wholly or in part, arises.

In this connection, the learned Counsel for the Petitioners would submit that in accordance with the proviso to Section 20 of the Code of Civil Procedure, the suit should have been filed before the Court, within whose jurisdiction, the ''cause of action'' for the suit was arisen. He has also submitted that it is well settled that the jurisdiction of the court in which the suit is intended to be filed, must be specifically in the cause of action paragraph.

He has also submitted that the Petitioners have been residing in South Pudukkottai Village for more than 40 years, which comes under the jurisdiction of Subordinate Court, Pudukkottai and if at all, the Respondent/Plaintiff wanted to file a suit against the Petitioners, it should have been filed before the Subordinate Court, Pudukkottai and not before the Subordinate Court, Tiruppur.

In support of his submission, he has placed reliance upon the decision in Union of India (UOI) and Another Vs. Ladu Lal Jain, .

In this case, it is observed that "the principle behind the proviso to classes (a) (b) of Section 20 is that the suit be instituted at a place where the Defendant be able to defend the suit without undue trouble."

On the other hand, the learned Counsel for the Respondent has submitted that if the suit in O.S. No. 135 of 2006 is in no-way connected, with the suit in O.S. No. 11 of 2009 which is sought to be transferred. He has also submitted that even in accordance with sub-clause(c) of Section 20 of Code of Civil Procedure, the cause of action for the suit in O.S. No. 11 of 2009 which is sought to be transferred was arisen at Tiruppur and hence, the Subordinate Court, Tiruppur alone is having jurisdiction to entertain the suit and that the suit cannot be filed to suit the convenience of the Petitioners. He has also added that there is no nexus between the suit in O.S. No. 11 of 2009 pending on the file of the Subordinate Court, Tiruppur and the suit in O.S. No. 135 of 2006, which is pending on the file of the Subordinate Court, Pudukkottai. The relief sought for by the Petitioners cannot be granted.

In order to substantiate his argument, he has placed reliance upon the decision in C.R. Sivanandam, C.R. Sankar, C.R. Kannan and R. Devambal Vs. V.R. Kushal Doss and Others, . In this case, the revision Petitioners are the Defendants 2 to 4 and 6 in O.S. No. 268 of 1984 on the file of Subordinate Court, Vellore. The learned Subordinate Judge, Vellore, passed an order in O.S. No. 268 of 1984 on 28.04.2004 stating that the Subordinate Court has got territorial jurisdiction to try the suit. Aggrieved by the order, the revision petition has been filed by the revision Petitioners/Defendants 2 to 4 and 6. The Plaintiff therein had filed the suit in O.S. No. 268 of 1984 for recovery of due on the five promissory notes executed by the Defendants 1 to 3 in favour of the Plaintiff and his father, mother, sister and wife. The father, mother, sister and wife of the Plaintiff have assigned the promissory notes in favour of the Plaintiff for valuable consideration. The father, mother, sister and wife of the Plaintiff as well the Plaintiff are the residents of Vellore. Admittedly the Defendants 1 to 3 borrowed the amount from them and executed promissory notes.

In this circumstance, a learned Single Judge of this Court, has observed that naturally, such a borrowal could have been only at Vellore, after executing the promissory note at Vellore. Merely because, the Defendants 1 to 3 are carrying on business in the name and style of "C.R. Lingam and Company" at Madras and also residents of Madras and the witnesses to the promissory notes are at Madras, it cannot be said that the suit promissory notes were executed at Madras. It is unacceptable that the creditor should go over to borrower and advance the loan amount on promissory notes. Hence, the order of trial Court was confirmed, on the ground that the Subordinate Court, Vellore has got jurisdiction to entertain the suit.

The learned Counsel for the Respondent has also placed reliance upon another decision in D.A.V. Boys Sr. Section School etc v. D.A.V. College Managing Committee 2010 (5) CTC 618.

In this case, it is observed by the Division Bench of the Apex Court that the court can exercise power and transfer proceedings to an appropriate Court in order to maintain fair trial. It is also held that mere convenience of parties is not enough and it must be shown that trial in chosen forum will result in denial of justice. With this observation, the petition for transfer was dismissed.

On coming to the instant case on hand, obviously the suit in O.S. No. 11 of 2009, which is sought to be transferred has been filed before the Subordinate Court, Tiruppur by the Respondent herein. The other suit in O.S. No. 135 of 2006 is said to have been filed by one Samikannu of Pudukkottai. Apparently both suits are filed for recovery of a sum of Rs. 3,00,000/-. The contention of the Petitioners is that after making use of one of the signed blank promissory notes which was issued by them at the time of money transactions, the said Samikannu had filed the suit in O.S. No. 11 of 2009 on the file of Tiruppur through T. Perumal and that there were no money transactions between T. Perumal and the Petitioners.

Another contention was raised on behalf of the Petitioners that if at all the Respondent wanted to file the suit, it should have been filed before the Subordinate Court, Pudukkottai, where the Petitioners are residing. As rightly submitted by the learned Counsel for the Respondent, the Petitioners have failed to establish their case with regard to the connectivity of the suit in O.S. No. 11 of 2009 with the suit in O.S. No. 135 of 2006. The reason i.e. the filing of suit in O.S. No. 11 of 2009 indirectly by the said Samikannu through T. Perumal, may be a valid ground for defense, but it is not an adequate ground for transfer.

Further, they have also miserably failed to establish the necessity to club the suit in O.S. No. 11 of 2009 along with O.S. No. 135 of 2006 as contemplated under Sub-section (c) of Section 20 of Code of Civil Procedure.

In Union Carbide Corporation Vs. Union of India (UOI) and Others, it is observed that the Court exercising powers u/s 24 must keep the general rule in its mind that the subordinate Court''s working should not be interfered unless there is such serious ground that transfer of the suit or proceeding is necessary.

Having regard to the submissions made on behalf of both sides and on perusal of the affidavit filed in support of the petition for transfer, this Court is of considered view that the Petitioners have not come forward with adequate grounds for transferring the suit in O.S. No. 11 of 2009 from the file of Subordinate Court, Tiruppur, to the file of Subordinate Court, Pudukkottai, to be tried along with the suit in O.S. No. 135 of 2006.

In the result, the petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. There is no order as to costs.