Mediquip Systems Ltd. vs Mecord Data Wire Pvt. Ltd.

Amitava Lala, J.—This is an application, inter alia, as follows:

(a) The plaint filed in C.S. No. 55 of 1998 be taken off the field and/or be rejected and/or be returned to be presented before the appropriate Court; (b) Till hearing of this application all further proceedings-in C.S. No. 55 of 1998 be stayed; (c) Ad-interim order in terms of prayers above; (d) costs of and incidental to this application be borne by the Plaintiff; (e) Such further or other order or orders be made and/or direction/directions be given as to this Hon''ble Court may seem fit and proper.

This application was opposed by the Plaintiff/Respondent by filing an affidavit-in-opposition being affirmed on May 17, 1999.

The Petitioner contended that admittedly the Defendant carrying on business outside the jurisdiction to this Hon''ble Court. No leave under Clause 12 of the Letters Patent has been obtained. It has not even alleged in the plaint that the cause of action has arisen wholly within the jurisdiction of this Hon''ble Court. They further contended otherwise the plaint does not disclose any cause of action and the suit is also barred by law. The cause of action, if any, arise at Chennai outside the jurisdiction of this Hon''ble Court.

Mr. Jayanta Banerjee, Learned Counsel appearing with Mr. Sayamal Sarkar, Learned Counsel contended more particularly that the Defendant is carrying on business at Chennai and the books, papers, documented and also the witnesses are at Chennai. The said suit has been filed before this Hon''ble Court only to harass the Defendant to deprive legitimate dues of Rs. 17,39,374.15 as certified by the auditor. The suit is net outcome of abuse of Court of process of law. The suit can be tried more conveniently at Chennai. Balance of convenience and doctrine of natural forum also speaks so.

Mr. Tapan Dutt, Learned Counsel appearing for the Respondent/Plaintiff contended that a Memorandum of Understanding executed within the jurisdiction, dispute is within the jurisdiction. Proposed statement caused within the jurisdiction. Payability implies jurisdiction of High Court at Calcutta. For the said reasons it was advised that no leave is required. Such contention was also made in para 8 of the affidavit-in-opposition.

A question arose in the mind of Court as to whether leave can be granted belatedly at any point of time during the hearing of the suit or not to get an appropriate explanation to that extent, I required from the Learned Counsels about Single Bench judgment of this Hon''ble Court where this question was likely to be pointed out but none is ready with the same. However, such question is not so much pertinent now after following the arguments advanced by the parties hearing. Mr. Dutt contended that although he has not sought for any leave at the time of instituting the suit but afterwards in the para 8 of the affidavit-in-opposition sought for leave under Clause 12 of the Letters Patent belatedly and this Court, as a matter of formality, can grant so even at this stage but surprisingly. I found that no averment is made for granting such leave even in the affidavit-in-opposition.

On the other hand Mr. Banerjee, has cited a judgment reported in Kamal Srimal Vs. Padam Chand Sindhar, and relying upon para 42 therein specifically contended that the Clause 12 of the Letters Patent specifically says that leave has to be obtained first. Moreover, there is no averment in the plaint itself in respect of arising part of the cause of action within the jurisdiction.

According to me in granting leave under Clause 12 of the Letters Patent Court has to proceed on the basis of the averment in the plaint. In the instant suit no averment as to the jurisdiction is made in the plaint save and except para 22A which as follows:

22A. In as much as since the cause of action as stated in paragraph 20 arose at Shivan Building (4th Floor), 46E Rafi Ahmed Kidwai Road, Calcutta 700 016 during the Registered Office of the Plaintiff within the Original Side Jurisdiction of the Hon''ble Court has got the territorial Jurisdiction to adjudicate the claim of the Plaintiff.

But how the cause of action arose at the premises as aforesaid is known of this Court. However, it implies that the whole part of the cause of action is arising within the jurisdiction of this Hon''ble Court. Therefore, it can also be presumed that there is no necessity of leave under Clause 12 of the Letters Patent as stated so by the Learned Counsel appearing on behalf of the Respondent/Plaintiff. It is also submitted if the part of the cause of action arose outside the jurisdiction, the leave can be granted now. Therefore, Jill this date there is an apprehension in the mind of Respondent/Plaintiff as to whether the part of the cause of action is arising within the jurisdiction or whole part of the cause of action is arising within the jurisdiction. On the other hand, the Petitioner/Defendant contended that this Court has no jurisdiction but the appropriate Court of Chennai has jurisdiction in this respect.

Therefore, under such circumstances, I have to find out the balance of convenience in respect of the natural forum. Petitioner/Defendant made specific averment in the para 7 of the petition from which it appears that nexus and/or connection in respect cause of action arose outside the jurisdiction to which in para 11 of the affidavit-in-opposition is giving a bare denial. Moreover, it is an admitted position that Defendant carrying on business outside the jurisdiction of this Hon''ble Court. Therefore, on the basis of such deciding factors the Order 7, Rule 11(a) of the Code of Civil Procedure, 1998 in respect of non-disclosure cause of action, within the jurisdiction stands.

In the premises, the petition is allowed. The plaint filed in C.S. No. 55 of 1998 is directed to taken off the file and be filed before the appropriate jurisdiction.

Cost will be the costs in the cause.

The department and all parties will act on a signed copy of the minute of the operative part of the order.

Application allowed.