Calcutta High Court
Premlata Nahata And Anr. vs Chandi Prasad Sikaria on 19 November, 2003
Equivalent citations: IV(2004)BC39, (2004)2CALLT182(HC)
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
JUDGMENT Jayanta Kumar Biswas, J.
1. This is an application under Clause 13 of the Letters Patent, 1865 read with Section 24 of the Code of Civil Procedure, 1908. It has been filed for the following final reliefs:--
"(a) A Rule do issue calling upon the respondent to show cause why Money Suit No. 585 of 2001 (RB) (Sri Chandi Prasad Sikaria v. Madhulika Nahata) pending before the 7th Judge City Civil Court, Calcutta and Money Suit No. 69 of 2002 (RB) (Chandi Prasad Sikaria v. Premlata Nahata) pending before the Registration Bench in the City Civil Court in Calcutta, should not be transferred to this Hon'ble Court.
(b) The Rule be made absolute upon the failure of the respondent to show cause or any insufficient cause.
(c) The said Money Suit No. 585 of 2001 (RB) pending before 7th Judge City Civil Court, Calcutta and Money Suit No. 69 of 2002 (RB) pending before the Registration Bench in City Civil Court, both the transferred and/or withdrawn to this Hon'ble Court."
2. Briefly stated, the pre-litigation facts of the case are these. Smt. Premlata Nahata, wife of Mahendra Kumar Nahata of 75, Raja Basanta Roy Road, Kolkata-700 029 claimed to have lent and advanced to M/s. C.P. Sikaria & Company of 14, Netaji Subhas Road, 1st Floor, Kolkata-700 001 a sum of Rs. 5,00,000/- as temporary commercial accommodation; the amount was paid by a cheque dated April 7th, 2000. Similarly, Madhulika Nahata, daughter of Premlata, of 75, Raja Basanta Roy Road, Kolkata-700 029 also claimed to have lent and advanced to the said M/s. C.P. Sikaria & Company a sum of Rs. 5,00,000/- as temporary commercial accommodation; and she paid this amount by a cheque dated April 26th, 2000. M/s. C.P. Sikaria & Company is registered member of the Calcutta Stock Exchange Association Limited. It is also registered with the Securities & Exchange Board of India. It is a proprietorship firm, and Sri Chandi Prasad Sikaria is its sole proprietor. He carries on transactions in shares and securities on behalf of his clients as a registered share broker. By two separate notices both dated June 4th, 2001 Premlata and Madhulika demanded repayment of the amounts stated to be lent and advanced by them to M/s. C.P. Sakaria & Company, and they demanded such repayment with interest. Such demanded notices were replied to by M/s. C.P. Sikaria & Co., the replies were given by two almost identical but separate letters both dated July 2nd, 2001. In reply M/s. C.P. Sikaria & Co., while described the claims made by Premlata and Madhulika as false claims, stated that having worked as their authorised share broker in the matter of sale and purchase of shares on their behalf, it had become entitled to get Rs. 17,033.13p and Rs. 1,19,933.38p from them respectively, and to avoid such payments Premlata and Madhulika made false claims in their notices dated June 4th, 2001. The parties went on exchanging letters and notices with no end to the dispute.
3. In the facts and circumstances narrated before, on November 29th, 2001 Chandi Prasad filed Money Suit No. 585 of 2001 against Madhulika it was filed in the City Civil Court at Calcutta. In this suit Chandi Prasad prayed for the following reliefs:-
"(a) Recovery of Rs. 1,37,323.71 with interest @ 18% p.a. till realisation.
(b) Interest @ 18% p.a. from the date of the suit till passing of the decree and the decree to carry interest at the aforesaid rate of 18% p.a. till realisation.
(c) Costs of the suit including advocate's fees and/or
(d) Such other relief or reliefs as the plaintiff is entitled to in law and equity."
4. On February 8th, 2002 Chandi Prasad filed the suit against Premlata. This suit (Money Suit No. 69 of 2002) was also filed in the City Civil Court at Calcutta, and the prayers in this suit were as follows:
"(a) recovery of Rs. 22,614.16 with interest @ 18% till realisation.
(b) Interest @ 18% p.a. from the date of the suit till passing of the decree and the decree to carry interest at the aforesaid rate of 18% p.a. till realisation.
(c) Costs of the suit including advocate's fees and/or
(d) Such other relief or reliefs as the plaintiff is entitled to in law and equity."
5. It is not in dispute that the above two suits filed by Chandi Prasad in the City Civil Court at Calcutta are pending decision, and Premlata and Madhullka, though entered appearance, have not filed their respective written statements till date. The background facts were these as on January 31st, 2003 when Premlata and Madhulika together, as plaintiffs, filed the suit (C.S. No. 29 of 2003) against Chandi Prasad by invoking the Ordinary Original Civil Jurisdiction of this Court.
6. Premlata and Madhulika filed their suit for the following reliefs:--
"(a) Decree for Rs. 10,93,863/- as claimed in para 20 of the plaint in favour of the plaintiff No. 1.
(b) Decree for Rs. 10,90,849/- as claimed in para 37 of the plaint in favour of the plaintiff No. 2.
(c) An enquiry into loss and/or damage suffered by the plaintiffs and each of them and a decree or decrees be passed as may be found due upon such enquiry.
(d) Interest on the sums claimed by the plaintiffs at the rate 18 per cent per annum or at such rate and from such date as this Hon'ble Court deems fit and proper and order the payment thereof until the realisation of the plaintiffs dues.
(e) Receiver.
(f) Injunction.
(g) Attachment before judgment.
(h) Further or other reliefs as this Hon'ble Court deems fit and proper.
(i) Costs."
7. Then Premlata and Madhulika, as petitioners, filed this application dated June 13th, 2003 seeking transfer of the two suits filed by Chandi Prasad, the respondent, in the City Civil Court at Calcutta to this Court. By an order June 23rd, 2003 directions were given for filing opposition to this application. Accordingly, opposition dated July 5th, 2003 has been filed by the respondent; it has been replied to by the petitioners by their affidavit dated July 17th, 2003.
8. Mr. Das, learned senior counsel appearing for the petitioners, has contended that there is more than one ground for directing transfer of the two suits filed by the respondent in the City Civil Court at Calcutta. The grounds pointed out by him are:-- (1) the parties in the three suits are same and they are supposed to rely on and adduce same evidence, as the transaction is same, and hence trials and determination by different Courts are likely to result in conflict of decisions; (2) his clients are not in a position to set up their respective counter-claims in the City Civil Court suits, as their intended counter-claims exceed the pecuniary limits of the jurisdiction of the City Civil Court at Calcutta; (3) the issues involved in the City Civil Court suits are likely to call for adjudication of questions upon interpretation of somewhat not so common provisions in the guidelines, rules, regulations, etc. framed by the Securities & Exchange Board of India, and the City Civil Court may not be the better forum for the purpose. Besides relying on the provisions contained in Clause 13 of the Letters Patent and Section 24 of the Code of Civil Procedure, in support of his contentions Mr. Das has referred to the guidelines, rules regulations, etc. framed by the Securities & Exchange Board of India, and relied on the decisions in the cases of (1) Kalidas Roy and Ors. v. University of Calcutta and Ors. [AIR 1951 Cal 1291]; (2) Beburam v. Jamunadas Ramji & Co. ; (3) Rupendra Deb Raikut v. Ashrumati Debt and Ors. ; (4) The General Council of the Church of India and Anr. v. Niranjan Ghose and Anr. [75 CWN 489]; and (5) Abhay Singh Surana v. The Indian Rayon & Industries Ltd. .
9. Mr. Sen, learned counsel appearing for the respondent, has contended that there is no ground to transfer the two suits filed by Chandi Prasad in the City Civil Court at Calcutta to this Court, particularly when the petitioners appeared in the said suits long ago and sought repeated adjournments for filing written statements. He has contended that the suit in this Court has been filed by the petitioners with an oblique and ulterior motive to delay the hearing of the two suits filed by the respondent much prior to the suit filed by the petitioners. He has submitted that the respondent intends to file an application under Section 10 of the Code of Civil Procedure once the writ of summons is served; and in any case, the results of the two prior suits filed by the respondent shall determine the suit filed by the petitioners in this Court. He has contended that there is no reason to say that the City Civil Court will not be a suitable forum to interpret and consider the scope and ambit of the guidelines, rules, regulations, etc. framed by the Securities & Exchange Board of India, if the same is required in course of adjudication of the issues involved in the suits. He has distinguished the decisions cited by the Mr. Das by pointing out that--(1) none of grounds indicated in Kalidas Roys' case (supra) are available to the petitioners in this case; and (2) grounds like personal vendetta, dilatory tactics which were the grounds for transfer in the other cases cited are not present in this case. He has also contended that the extra-ordinary jurisdiction to order transfer of suit as prayed for is to be exercised only in rare cases and not in ordinary ones like the present case, and the suit of the petitioners, apparently, is not maintainable for their joining together.
10. After hearing the learned counsel for the parties, and after considering the statement in the plaints of the three suits, I am of the considered view that this is a fit case where for the purpose of justice the two suits pending in the City Civil Court at Calcutta are required to be transferred to this Court, and all the three suits are required to be tried and determined together by this Court.
11. The admitted facts are these. Premlata and Madhulika both paid Rs. 5,000,00/- each to Chandi Prasad. By notices dated June 4th, 2001 they demanded repayment of their respective amounts claiming that the amounts had been lent and advanced by them to Chandi Prasad. By replies dated July 2nd, 2001 Chandi Prasad described the claims made by Premlata and Madhulika as false claims; and claimed payment of Rs. 17,033.13p and Rs. 1,19,933.38p, claiming that having acted as authorised share broker he had become entitled to get such amounts from Premlata and Madhulika respectively. Then Chandi Prasad filed the two suits for recovery of the amounts claimed by him, and subsequently Premlata and Madhulika jointly filed one suit for recovery of the amounts claimed by them. The amounts claimed by Premlata and Madhulika even if considered separately, exceeds the pecuniary limits of the jurisdiction of the City Civil Court at Calcutta in which the two prior suits filed by Chandi Prasad are pending decision.
12. Admittedly, in the suits filed by Chandi Prasad, because of Order VIII Rule 6A(1) proviso of the Code of Civil Procedure, Premlata and Madhulika cannot set up their respective counter-claims, as their such claims exceed the pecuniary limits of the jurisdiction of the Court in which said suits are pending. For recovery of the amounts they claim to be entitled, both of them are required to file separate suit before appropriate Court having jurisdiction, and this Court is apparently the appropriate Court for the purpose. Considering from this aspect it cannot be said that the suit filed by Premlata and Madhulika in this Court is an entirely unnecessary and frivolous suit.
13. It is therefore clear that while the two suits pending in the City Civil Court are required to be tried and determined for adjudicating the claims made by Chandi Prasad, the suit filed by Premlata and Madhulika is also required to be tried and determined to adjudicate the claims made by them. In all the three suits parties are same, facts are same, witnesses and documentary evidence are likely to be same, and only the claims are different; while Chandi Prasad claims the transaction to be one of purchase and sale of share scripts by him as authorised share broker of both Premlata and Madhulika, these persons claim that the relationship between them and Chandi Prasad was one of lenders and borrower. So there is a reasonable likelihood of conflicting decisions in the suits by different Courts. I am, however, unable to accept the contention that the City Civil Court at Calcutta would not be a suitable forum to address the purported complicated issues that may arise in the suits. The suit filed by Premlata and Madhulika in this Court, however, cannot be tried by the City Civil Court at Calcutta where the suits filed by Chandi Prasad are pending. So for the purpose of effective, complete and final adjudication of all the disputes involved in the three suits, in my view, it is just and proper that they are tried and determined together by this Court.
14. Provisions in Clause 13 of the Letters Patent empower this Court to remove a suit from any other Court and to try and determine it; and the power can be exercised either on the agreement of the parties or for purposes of justice. Which purposes of justice is a question that cannot be, and rather should not be, answered by enlisting the purposes, because such a list is bound to be an unending list. The decisions cited are quite illuminating, though they do not squarely apply to this case. As the purpose of justice, if there is one, must emanate from the facts and the apparent questions of law involved in the cases, I have not thought it useful to dwell on the relied on decisions at length. In my view the purposes indicated before are just and proper ones to exercise the power in this case by this Court.
15. For the foregoing reasons, I am of the view that this application should be allowed, and hence it is hereby allowed. It is ordered that the Money Suit No. 585 of 2001 (Sri Chandi Prasad Sikaria v. Madhulika Nahata) pending before the 7th Judge City Civil Court at Calcutta; and Money Suit No. 69 of 2002 (Chandi Prasad Sikaria v. Premlata Nahata) pending before the Bench of the Registrar of the City Civil Court at Calcutta shall be removed from said Court and transferred to this Court, and they shall be tried and determined together with C.S. No. 29 of 2003 (Premlata Nahata and Anr. v. Chandi Prasad Sikaria) pending before this Court. The Registrar, Original Side of this Court shall take the necessary steps in the matter forthwith.
In the facts and circumstances of the case there will be no order as to costs in this application.
Urgent xerox certified copy of this judgment and order may be supplied to the parties, if applied for.