Andhra HC (Pre-Telangana)
S. Purnachandra Rao vs Paleti Linga Rao on 28 April, 2005
Equivalent citations: 2005(4)ALD183, 2006(1)ALT289
ORDER A. Gopal Reddy, J.
1. This is a petition filed under Section 24 of Code of Civil Procedure seeking transfer of O.S. No. 30 of 2003 pending on the file of Senior Civil Judge, Bodhan, to the Court of Senior Civil Judge, Avanigadda to be tried along with O.S.Nos. 9 and 24 of 2003 pending on its file.
2. Respondent herein claims to be an endorsee of promissory note from one Mr. Y. Subash Chandra Bose of Koduru Village, Krishna District, from whom, the petitioner is said to have borrowed Rs. 78,326/- on 8-12-1999 and executed a demand promissory note in his favour on 8-12-1999 promising to repay the said sum along with interest at 24% per annum. The first respondent-plaintiff issued notice on 23-6-2003 calling upon the petitioner-defendant to make repayment of the amount due under the said promissory note. Since the petitioner-defendant failed to pay the said amount and denied the factum of receiving the amount in his reply notice dated 26-7-2003, first respondent on 13-8-2003 filed O.S.No. 30 of 2003 on the file of Senior Civil Judge, Bodhan claiming that said Subhash Chandra Bose has transferred the said promissory note in his favour at Bhavanipet Village, Bodhan Mandal, Nizamabad District after receiving a sum of Rs. 1,44,120/-by making an endorsement on 8-6-2003 transferring his right under the said promissory note executed by petitioner-defendant. The petitioner-defendant filed a written statement inter alia contending that he had not borrowed any amount from Subhash Chandra Bose and the suit promissory note is a rank forgery, and that said Subhash Chandra Bose has no capacity to lend the amount. When the petitioner-defendant made a demand to the Counsel for the respondent-plaintiff through reply notice dated 27-6-2003 to supply a copy of the promissory note, without doing so, the respondent-plaintiff filed the suit at Bodhan only to harass him since the petitioner-defendant is a resident of Krishna District. Learned Counsel for the petitioner-defendant stated that said Subhash Chandra Bose has also filed a suit being O.S.No. 9 of 2003 on the file of Senior Civil Judge, Avanigadda for recovery of a sum of Rs. 1,91,770/- basing on two promissory notes alleged to have been executed by the petitioner-defendant on 8-2-1999 and on 25-9-1999 and the same is pending, in which, the petitioner has also filed written statement taking similar pleas that have been pleaded in the present suit. That apart, it is alleged that there are chronic disputes between the petitioner-defendant and one T. Kesava Rao of Pedapudi Village, who is said to have misled and cheated the petitioner-defendant by playing fraud. It is stated that said Kesava Rao encouraged the plaintiffs in all the suits to file various suits against the petitioner-defendants basing on forged promissory notes. The said Kesava Rao also filed a suit against the petitioner-defendant in O.S. No. 24 of 2003 on the file of Senior Civil Judge, Avanigadda and the same is pending. In view of the same, the petitioner-defendant seeks transfer of O.S. No. 30 of 2003 pending on the file of Senior Civil Judge, Bodhan, to the Court of Senior Civil Judge, Avanigadda to be tried along with O.S.Nos. 9 and 24 of 2003 pending on its file.
3. Heard the learned Counsel for the petitioner-defendant and learned Counsel for respondent-plaintiff.
4. Sri Josyula Bhaskara Rao, appearing on behalf of the learned Counsel for the petitioner, argued that when the defence taken in all the suits by the petitioner-defendant is common and since common questions of fact and law arise in all the suits, to avoid conflicting judgments, it is appropriate to try all those suits together. Reliance is placed on the judgments of this Court in Kanuru Basava Punnarao v. Puttagunta Nageswara Rao, , Nellore Arya Vysya Bullion Merchants and Pawn Brokers Association v. Bhaskar Rao, and Dr. S. Chandra Sekhar Rao v. VST Constructions, Krishna District, .
5. Per contra, learned Counsel for the respondent-plaintiff would contend that issues are not common in both the suits and whether there was an endorsement in favour of the respondent-plaintiff at Bhavanipet Village in the presence of two witnesses is an issue, which can be gone into in the present suit, but the same is not an issue in other two suits. More so, the two witnesses in whose presence the promissory note was transferred, are residents of Nizamabad District and if the suit is transferred to the Court at Avanigadda it will cause immense hardship to the witnesses since they have to travel all the way to give evidence before the Court at Avanigadda. He placed reliance in V. Chettiar and sons v. K. Munnaiah, , but the same is misplaced on the facts of the case on hand.
6. Learned Counsel for the petitioner-defendant further contended that since admittedly, the promissory note was made in favour of Subash Chandra Bose in Krishna District the Courts at Nizamabad will not have any jurisdiction. In support of his contention, he placed reliance on a judgment of this Court in S.S.V. Prasad v. Y. Suresh Kumar, .
7. It is well settled that there is no hard and fast rule to be followed for consolidating the suits which are pending in different Courts. It is well recognized that when the issue in all the suits is common and identical, to avoid multiplicity of proceedings and conflicting judgments and also to secure ends of justice the suit pending in one Court can be transferred to other Court to be tried along with the suit pending on its file, which will also save the time of the Courts. The contention of the learned Counsel for the petitioner-defendant that since the suit is based on a promissory note and the respondent-plaintiff is an endorsee, he has to file the suit at the place where the promissory note was executed, is no more res integra in view of the decision of this Court in S.S.V. Prasad's case (supra). In the said case, this Court after considering Sections 68 and 70 of Negotiable Instruments Act held that the accrual of cause of action, in a given case would depend on the provisions of substantive law, governing the rights of the parties; Procedural law, such as C.P.C., would have almost no role to play, except to insist that cause of action, as such must exist. In the context of the Negotiable Instruments Act, a cause of action can be said to have accrued to a person when he presents a negotiable instrument in accordance with Sections 68 and 70 of the Negotiable Instruments Act and the maker of it refuses to honour it. The place where the negotiable instrument is actually presented, or is required to be presented under the said provisions, becomes significant from the point of view of Section 20(c) C.P.C.
8. In the case on hand, it is to be seen that the promissory note was endorsed in favour of the respondent-plaintiff by Subhash Chandra Bose, who also laid a suit against the petitioner-defendant for recovery of Rs. 1,91,770/- basing upon two promissory notes executed by petitioner-defendant. Further, the defence set up by the petitioner in both the suits is one and the same and the filing of the present suit at Nizamabad prima facie appears to harass the petitioner-defendant. That apart, the Court at Bodhan prima facie will not have jurisdiction to entertain the suit, since the suit has to be filed at the place where the promissory note is executed.
9. Under those circumstances, to avoid conflicting judgments and to secure ends of justice, O.S. No. 30 of 2003 pending on the file of Senior Civil Judge, Bodhan is hereby withdrawn and the same is transferred to the Court of Senior Civil Judge, Avanigadda to be tried along with O.S. Nos. 9 and 24 of 2004 pending on its file.
10. The transfer civil miscellaneous petition is allowed accordingly. No costs.