Order Returning Plaint; ING Vyasa Bank Vs. Mathew [Kerala High Court, 18-08-2011]

Civil Procedure Code, 1908 – Order 7 Rule 10 & Order 43 Rule 1 (a) – Order returning the plaint to be presented before proper court – An order in writing stating reasons for returning the plaint (that it has no territorial Jurisdiction) is required as such an order is appealable.

# Order Returning Plaint

Constitution of India, 1950 – Article 227 – Supervisory Jurisdiction – the mere fact that an appellate remedy is provided is no ground by Itself to decline to exercise the supervisory jurisdiction under Article 227 of the Constitution if such a course is found necessary in the ends of justice .

# 2011 (4) KLJ 61 : 2011 (4) KLT SN 37 (C.No.35)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon’ble MR. Justice Thomas P. Joseph

Dated this the 18th day of August, 2011

O.P.(C) No. 2234 of 2011

ING Vyasa Bank Vs. Mathew

For Petitioner : G.S.Reghunath, K.P.Sreekumar, R.S.Kalkura; For Respondents : George Zachariah Eruthickel

J U D G M E N T

Thomas P.Joseph, J.

1. In these Original Petitions filed under Article 227 of the Constitution of India, challenge is to Ext.P4, order dated 27.07.2009 (In O.P(C) No.2234 of 2011), Ext.P2(a). judgment dated 04.03.2009 and Ext.P3, order dated. 07.04.2009 respectively In O.P(C) No.2241 of 2011 and Ext.P3, order dated 17.06.2009 In O.P(C) No.2242 of 2011. The said Original Petitions concern O.S. No.460 of 2006 of the First Additional Sub Court, Ernakulam, O.S. – No.384 of 2008 of the Principal Sub Court, Ernakulam and O.S. No. 748 of 2008 of the First Additional Sub Court, Ernakulam, respectively. Those suits are for recovery of money due from the respondents-defendants on the strength of loan transactions. Exhibit PI In the Original Petitions- is the plaint In each case. Petitioner/plaintiff is the ING Vysya Bank Ltd, a Registered Banking Company having its Head Office at Bangalore and branch, among other places, at M.G. Road, Ravlpuram, Ernakulam. Plaints referred to the loan transactions petitioner (i.e., the branch at Ravipuram, Ernakulam) had with the respondents and the liability of the latter to pay the amounts due to the former. It is averred in the plaints that cause of action for the suits are within the jurisdiction of the court of learned Principai/Addltional Sub Judge, Ernakulam (as the case may be) on the respective dates mentioned therein when the transactions referred therein took place.

2. As against the said averments, respondents (defendants) in O.P(C) Nos.2234 and 2241 of 2011 (O.S. Nos.460 of 2006 and 384 of 2008) filed written statements contending that the court of learned Principal/Additional Sub judge, Ernakulam has no territorial jurisdiction to entertain the suits since the entire transactions took place at Kottayam. in O.P(C) No.2242 of 2011 (arising from O.S. No.748 of 2008) it is not disputed that respondents 1 to 3 did not file any written statement, in O.S. Nos.460 of 2006 and 384 of 2008, based on the contentions in the written statements, learned Principal/Additional Sub Judge framed issue regarding territorial jurisdiction. In O.S. No.384 of 2008 learned Principal Sub Judge has passed judgment. (Ext.P2[a] ) on 04.03.2009 that having perused pleadings of the parties and documents relied on by petitioner, it is seen that material documents relied on by petitioner were executed at Kottayam, the mere sending of lawyer’s notice from a place within the jurisdiction’ of Learned Principle Sub Judge or that accounts of the loan trans actions,are maintained by petitioner at its branch at Ernakulam within the territorial limits of the said court will not confer jurisdiction. Learned Principal Sub Judge found that the said court has no jurisdiction to entertain the suit. As per Ext.P3, order dated 07.04.2009 on the application of petitioner, plaint was ordered to be presented in the Sub Court, Kottayam on 25.05.2009.

3. So far as O.S Nos.460 of 2006 and 748 of 2008 are concerned though in the affidavits filed, by the petitioner before learned First Additional Sub Judge It is stated that learned Sub fudge has entered a finding regarding lack of jurisdiction, as the counsel on both sides submit, there was no order In writing to that effect. In O.S. No.748 of 2008 defendants had not even filed written statement). In O.S. No.460 of 2006 (O.P(C) No.2234 of 2011), learned First Additional Sub Judge passed Ext.P4, order on the application of petitioner to present the plaint in the Sub Court, Kottayam on 08.09.2009. In O.S. No.748 of 2008 (O.P(C) No.2242 of 2011) Ext.P3, order dated 17.06.2009 is passed to present the plaint in the court having jurisdiction (since Petitioner / plaintiff did not specify the court in which plaint is to be re-presented).

4. Petitioner has filed these Original Petitions this Court on 12.07.2011 challenging the above said judgment/orders. By way of amendment {In O.P(C) Nos.2241 and 2242 of 2011) there is also a challenge to the order that learned Principal Sub Judge/Additional Sub Judge has no jurisdiction to entertain the plaints.

5. It is argued by learned counsel for petitioner that learned Principal and Additional Sub Judges were not correct in entering a finding that It has no jurisdiction to entertain the suits. It is pointed out that apart from the mere observation/finding that learned Principal/Additional Sub Judge has no territorial jurisdiction, the court has not gone into the various averments in the plaints and In particular the averments relating to the cause of action having arisen within the jurisdiction of the said courts. It is also submitted that except in O.S. No.384 of 2008 (involved in O.P(C) No.2241 of 2011). There is no written order passed by the learned Principal Sub Judge that the said court has no jurisdiction to entertain the suits. In such a situation it is contended that the mere fact that petitioner happened to file applications, according to the learned counsel erroneously, under

# Rule 10A of Order VII of the Code of Civil Procedure

(for short, “the Code”) does not mean that petitioner has submitted to the view of the learned Additional Sub Judge regarding lack of Jurisdiction. It is also pointed out by the learned counsel that cause of action is based on the loan transactions and hence the principle that the debtor should seek the creditor would apply and hence even when place of payment Is not specifically mentioned, the court at the place of creditor has jurisdiction to entertain the suit. In the circumstances, It is requested that the Original Petitions may be allowed and the impugned Judgment/orders be set aside.

6. Learned Senior Advocate appearing for the respondents In O.P(C) No.2241 of 2011 (arising from O.S. No 7384 of 2008) contended that the Original Petitions are misconceived, and is an attempt to wriggle out the long-delay caused from the_dates on which plaints were ordered to be re-presented before proper courts. If petitioner is aggrieved by the finding of learned Sub Judges regarding lack of territorial jurisdiction, Its remedy was to file appeal under Order XLIII Rule 1 (a) of the Code. Further argument Is that petitioner having opted to file applications under Rule 10A of Order VII, it Is precluded from challenging the finding regarding lack of territorial jurisdiction in view of sub-rule (5) of Rule 10A of Order VII. Learned Senior Advocate contended that prayer made by amendment in O.P(C) Nos.2241 and 2242 of 2011 that alternatively, petitioner may be granted further time to present the plaints is also untenable since learned Principal/Additional Sub Judge having no Jurisdiction to entertain the suits could not have extended the time for presentation of the plaint. Reliance is placed on the decision of this Court in

# Videocon International Ltd. v. Logos Traders, 2007 (4) KLT 848

7. Learned counsel for respondents in O.P{C) No.2234 of 2011 has submitted that documents produced by petitioner would show that the transaction took place at Kottayam, the second respondent resides in Kottayam District and hence only the court at Kottayam has jurisdiction to entertain the suit (O.S. No.460 of 2006) In view of Sec.70 (b) of the Code. It is contended by learned counsel that absence of a written order that court has no territorial jurisdiction will not save the situation since It was observed so in open court having considered the argument of parties and at any rate petitioner, acting on that observation having filed application under Rule 10A of Order VII of the Code in which case petitioner cannot file a petition under Article 227 of the Constitution.

8. Learned counsel for respondents in O.P(C) No.2242 of 2011 (O.S.No.748 of 2011) has contended that with the knowledge of the petitioner, respondents 1 and 2 sold the vehicle involved to the 3rd respondent, the vehicle was later seized by petitioner and in respect of which the 3rd respondent has filed criminal case against officials of petitioner and respondents 1 and 2. The Police in the course of Investigation seized the vehicle. Petitioner and the 3rd respondent applied for interim custody of the vehicle. 3rd respondent succeeded in that. Petitioner challenged that order in this Court in Crl. M.C. No.3318 of 2008 where, the agreement of hypothecation cf loan transaction (copy of which are marked as Ext.R1(a) and R1(b) In O.P(C) No.2241 of 2011) were produced which show that those documents were executed at Kozhikode. Supplementing the arguments of respondents in the other Original Petitions it is contended that the Original Petition may not be entertained. It is also contended that remedy of petitioner if any is to seek review of the order of the learned Sub Judge. Lastly it Is argued that if these Original Petitions are allowed, the time for presentation of the plaints in the respective courts stand extended for no fault of respondents and hence they may hot be called upon to pay interest from the date fixed by the learned Principal/Additional Sub Judge for presentation of the plaints In the proper courts till this day.

9. So far as O.S. Nos.460 of 2006 and 748 of 2008 (in O.P. (C) Nos.2234 and 2242 of 2011 respectively) are concerned, it is not disputed that there is no order in writing passed by the learned Additional Sub Judge holding that the said court has no territorial jurisdiction to entertain the suits. No doubt, in those cases also petitioner filed applications under Rule 10A of Order VII of the Code. But that will not cure the fatal defect of learned Additional Sub Judge not passing a written order rendering that the said court has no territorial jurisdiction to entertain the suits. For, Rule 10A of Order VII relied on by the learned counsel for respondents would say that where in any suit after the defendant has appeared, the court is of opinion that the plaint should be returned it shall before doing so, intimate its decision to the plaintiff. Though an argument is advanced that intimation referred to in Rule 10A need not be in writing, i find myself unable to accept that argument. Rule 10 of Order VII refers to the procedure to be followed when a plaint is returned and states that subject to the provisions of Rule 10A the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. Sub-rule (2) of Rule 10 says that on returning the paint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it. An order in writing stating reasons for returning the plaint (that it has no territorial Jurisdiction) is required as such an order is appealable under Order XLIII Rule 1 (a) of the Code. Such a written order is lacking in O.S. Nos.460 of 2006 and O.S. No.748 of 2008. For the said reason alone, the orders dated 27.07.2009 in O.S. No.460 of 2006 and dated 17.06.2009 in O.S. No.748 of 2008 (be it on the applications filed by petitioner) directing presentation of plaints in other courts cannot stand.

10. Now coming to O.S. No.384 of 2008 of the court of learned Principal Sub Judge, Ernakulam (involved in O.P (C) No.2241 of 2011) is concerned, learned Principal Sub Judge has passed a judgment (Ext.P2(a) holding that the said court has no territorial jurisdiction to entertain the suit. True, the said order is appealable under Order XLIII Rule 1(a) of the Code. It is also true that when an application is preferred under Rule 10A of Order VII, the plaintiff shall not be entitled to appeal against the order returning the plaint In view of sub-rule (5) of Rule 10A of Order VII. But that sub-rule only affects right of petitioner/plaintiff to prefer an appeal challenging the original order returning the plaint. That sub-rule does not affect the power of this-Court under Article 227 of the Constitution to consider whether Ext.P2 (a), judgment dated 04.03.2009 is erroneous and the result of illegal exercise of jurisdiction. I have gone through Ext.P2(a)~ judgment (in O.S.No.384 of 2008). Learned Principal Sub Judge has observed that on a careful consideration of the pleading of the parties and the documents relied on by the petitioner it is seen that the material documents relied on by petitioner were executed at Kottayam and that mere sending of lawyer notice or that accounts of the loan transaction are maintained at a place at Ernakulam will not confer jurisdiction on that court. It is necessary for me to go into the question whether learned Sub Judge has applied mind to the contentions raised by parties. For that, averments in the plaint in O.S. No.384 of of 2008 are to be looked into. There, as aforesaid plaintiff is described as the ING Vysya Bank Ltd., a registered banking company having its registered office at Bangalore and branch among other places at M.G. Road, Ravipuram. In other words, plaintiff In O.S. No.384 of 2008 Is the ING Vysya Bank Ltd., M.G. Road, Ravipuram. In paragraph 2 it Is stated that respondents-defendants requested for a loan to the plaintiff bank. Paragraph 3 says about the sanctioning of the loan by the plaintiff bank. Paragraph 5 refers to the respondents (defendants in O.S. No.384 of 2008) executing demand promissory note in favour of the plaintiff. Paragraph 6 refers to the execution of the deed of guarantee. Paragraph 9 refers to the issue of lawyer notice to the respondents. In paragraph 15 there is specific averment that cause of action for the suit has arisen within the jurisdiction of the learned Sub Judge, Ernakulam on 20.06.2005 when the plaint transaction took place, on 28.06.2005 when the defendants executed loan documents In favour of the petitioner, on 28.03.2008 when petitioner through counsel issued notice to the respondents and continuously thereafter at Ernakulam Village which is within the jurisdiction of the learned Sub Judge, Ernakulam. Averments in paragraph 15 show that according to the petitioner, all the transactions took place at Ernakulam.

11. Though learned Principal Sub judge has observed in Ext.P2 (a), judgment that there was a careful consideration of the pleadings of both sides, the judgment does not reflect that the various averments made by petitioner in the plaint to confer jurisdiction with the learned Sub Judge were considered by him. Instead learned Sub Judge appears to have been carried away by the fact that some documents were (allegedly) executed at Kottayam. To attract jurisdiction under Sec.20(c) of the Code it is sufficient that a part of the cause of action took place within the jurisdiction of the court. Assuming that the documents were got executed at Kottayam, the court had to consider in which branch the loan was requested for, which branch sanctioned it and where payment was to be made. According to the leaned counsel for petitioner, that even when the place of payment of the amount is not specifically mentioned, the principle that debtor should seek the creditor must apply in these cases and hence respondents were to pay the amount at the Ravipuram branch of petitioner and failure to do so, gave rise to a cause of action at Ernakulam. Learned counsel has placed reliance on the decisions in

# S.P.C. Engineering Co. v. Union of India, AIR 1966 Calcutta 259

# Ramasubramonlam v. Ranganathan, 1978 KLT 906

# Nagesh Sales Corpn. v. M/s. Kerala Soaps & Oils Ltd., 1993 (2) KLT 1039

and

# Jose Paul v. Jose, AIR 2002 Kerala 397

Per contra, learned counsel for respondents in O.P(C) No.2242 of 2011 has placed reliance on the decision in

# Prabhakra Kamath v. C.M. Patel, 1961 KLT 695

to contend that in the absence of mention of place of payment specifically, the principle that debtor should seek the creditor should not apply. This aspect of the matter is also not seen considered by the learned Sub Judge. I must also bear In mind that Issue regarding Jurisdiction In these cases involves disputed questions of fact as well and hence recording of evidence on the issue also may become necessary before entering a finding regarding territorial Jurisdiction.

12. In the light of what I have stated above I am inclined to hold that finding of learned Principal Sub Judge, Ernakulam as per Ext.P2(a) Judgment In O.S. No.384 of 2008 (O.P(C) No.2241 of 2011) that it has no territorial Jurisdiction to entertain the suit requires fresh consideration having regard to all relevant aspects of the matter.

13. Now the question whether in view of the provision for appeal as provided in Order X1II1 Rule 1(a) of the Code and the bar created by sub-rule (5)Rule 10A of Order VII and on account of delay this Court should deadline to entertain these illegal Petitions. I stated that except in O.S. No.384 of 2008 there is no written order holding that learned Sub Judge has no territorial Jurisdiction to entertain the suits. Therefore the question of petitioner filing appeals in those cases under Order XLIII Rule 1 (a) did not arise. But In O.S. No.384 of 2008 as aforesaid there is Ext.P2{a), judgment holding that that court has no territorial jurisdiction.

14. Relevant decisions on the point inform me that the mere fact that an appellate remedy is provided is no ground by Itself to decline to exercise the supervisory jurisdiction under Article 227 of the Constitution if such a course is found necessary in the ends of justice . Having regard to the nature of Ext.P2(a), judgment in O.S. No.384 of 2008, I found that relevant aspects of the matter were not considered by the learned Sub Judge and that if on the disputed question evidence was required to be adduced, that procedure ought to have been allowed. In that view of the matter, Ext.P2 (a), judgment is prima facie illegal so that this Court should not refuse to exercise the jurisdiction under Article 227. For, the said provision enables this Court to ensure that the subordinate courts acted within their bounds and did not illegally exercised the jurisdiction.

15. To the last question whether, these Original Petitions are to be entertained in view of the delay? It is true that there is delay and for that reason respondents cannot be asked to suffer. In that situation the loss that may be caused to the respondents on account of entertaining of these Original Petitions and remitting the cases for fresh decision can be compensated by directing that respondents shall not be made liable to pay interest from the date on which learned Principal/Additional Sub Judge directed petitioner to present the plaints in the proper court until this day.

16. The above discussion leads me to the conclusion that the judgment/orders passed by the learned Principal/Additional Sub Judge in the respective suits referred above are liable to be set aside and the matter remitted to the learned Principal/Additional Sub Judge for fresh decision on the Issue regarding lack of territorial jurisdiction.

Resultantly, Original Petitions are disposed of in the following lines:

(a) Exhibit p4, order dated 27.07.2009 in O.P(C) No.2234 of 2011 (O.S. No.460 of 2006 of the court of learned First Additional Sub Judge, Ernakulam is set aside.

(b) Exhibit P2(a), judgment dated 04.03.2009 and Ext.P3, order dated 07.04.2009 in O.P(C) No.2241 of 2011 (O.S.No.384 of 2008 of the court of learned Principal Sub Judge, Ernakulam) are set aside.

(c) Exhibit P3, order dated 17.06.2009 in O.P(C) No.2242 of 2011 (O.S.No.748 of 2008 of the court of learned First Additional Sub Judge, Ernakulam) is set aside.

(d) The issue regarding territorial jurisdiction in the above suits is directed to be decided by the learned Principal/Additional Sub Judge afresh after hearing parties and if necessary after recording evidence on that issue.

(e) The defendants in O.S.No.748 of 2008 of the court of learned Additional Sub Judge, Ernakulam shall be given sufficient time to file written statement, if any.

(f) It is directed that if the suits are ultimately decreed, respondents/defendants shall not be liable to pay any interest from 27.07.2009 (in O.S.No.460 of 2006), 04.03.2009 (in O.S.No.384 of 2008) and 17.06.2009 (in O.S.No.748 of 2011) and till this day (18.08.2011).

Parties shall appear in the courts of learned Principal/Additional Sub Judge, Ernakulam (in the respective cases) on 19.09.2011.

Comments