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