Madras High Court
K.Duraisamy vs S.Velmurugan on 19 October, 2009
Equivalent citations: AIR 2010 (NOC) 816 (MAD.)
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.10.2009 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.(PD) No.1052 of 2008 and M.P.No.1 of 2008 K.Duraisamy ... Petitioner Vs S.Velmurugan ... Respondent This Civil Revision Petition is filed under Article 227 of Constitution of India, against the Order dated 07.01.2008 passed in I.A.No.17767 of 2007 in O.S.No.9581 of 2006 on the file of the XVII Assistant City Civil Court, Chennai (incharge of XVI Assistant Judge, City Civil Court, Chennai). For Petitioner : Mr.P.Jagadesan For Respondent : Mr.T.P.Kathiravan ***** O R D E R
The defendant in O.S.No.9581 of 2006 on the file of the XVII Assistant City Civil Court, Chennai (incharge of XVI Assistant Judge, City Civil Court, Chennai) is the revision petitioner before this Court. He is aggrieved by the order of the trial court dated 07.01.2008 by which the petition filed by him in I.A.No.17767 of 2007 under Order XIV Rule 2 read with Sec.20 and Sec.151 of C.P.C. to try the issue of territorial jurisdiction as the preliminary issue was dismissed by the trial court.
2. The respondent herein as plaintiff filed O.S.No.9581 of 2006 on the file of the XVII Assistant Judge, City Civil Court, Chennai praying to pass a judgment and decree directing the revision petitioner/defendant to pay a sum of Rs.54,400/- (which includes interest of Rs.14,400/-) and also directing the revision petitioner/ defendant to pay the interest at the rate of 12% per annum on the principal amount of Rs.40,000/- from the date of the filing of the plaint till the date of realisation of the said amount.
3. According to the plaintiff/respondent herein, the revision petitioner/defendant borrowed a sum of Rs.40,000/- from one Thiru S.Pugalendi of Vazhapadi Taluk, Salem District for urgent family requirements and the revision petitioner/defendant executed a Promissory note dated 26.10.2003 agreeing to pay interest at the rate of 24% per annum. The said S.Pugalenthi made over the above Promissory Note to the respondent/plaintiff on 30.05.2004 at Chennai. The said S.Pugalenthi also intimated about the made over in favour of the respondent/plaintiff to the revision petitioner/defendant on 30.05.2004. When the plaintiff demanded the principal amount as well as the interest on the above said Promissory Note, the revision petitioner/ defendant neither paid the principal amount nor the interest. Therefore, the respondent/plaintiff issued an Advocate notice on 22.06.2004 calling upon the revision petitioner/defendant to make payment towards the said Promissory Note.
4. The respondent/defendant issued a reply notice on 5.07.2004, denying the execution of the said promissory note dated 26.10.2003, which is contrary to the revision petitioner's earlier reply notice dated 25.02.2004, wherein he admitted the execution of the promissory note. Hence, the respondent/plaintiff filed O.S.No.9581 of 2006 for the aforesaid reliefs.
5. The revision petitioner/defendant entered appearance in the suit and filed a written statement wherein he denied that he borrowed a sum of Rs.40,000/- from the respondent/ plaintiff on 26.10.2006. According to the revision petitioner/defendant, he borrowed a sum of Rs.10,000/- from one Thiru S.Pugalenthi of Salem in the year 1999 and the said S.Pugalenthi is a money lender. The above said money lender forced the revision petitioner/defendant to sign some blank stamp papers and unfilled Promissory Notes at the time when the revision petitioner/defendant borrowed the sum of Rs.10,000/-. He repaid the entire amount of Rs.10,000/- with interest to the money lender Thiru S.Pugalenthi in the year 2003. Thereafter, the said S.Pugalenthi instead of returning the blank promissory notes and the blank stamp papers, demanded another sum of Rs.10,000/- from the revision petitioner/defendant.
6. The revision petitioner/defendant also raised the question of territorial jurisdiction in the written statement by stating that the Promissory Note was alleged to have been executed at Salem and the entire cause of action arose only in Salem District. Further, the revision petitioner/defendant is also residing at Athur Taluk, Salem District and hence, the revision petitioner/defendant contended that the City Civil Court in Chennai lacks territorial jurisdiction to try the above suit.
7. Pending suit, the revision petitioner/defendant filed I.A.No.17767 of 2007 under Order 14 Rule 2 read with Sec.20 and 151 of C.P.C. to pass an order to try the issue of jurisdiction and to try the above suit by the trial court, as a preliminary issue and decide the same.
8. In support of I.A.No.17767 of 2007, the revision petitioner/defendant filed an affidavit wherein it was stated by him that even according to the plaint, the amount was borrowed from one Thiru S.Pugalenthi in Salem District and the promissory note was also executed therein only. He denied that the said S.Pugalenthi made-over the promissory note to the respondent/plaintiff on 30.05.2004. Even assuming that the made-over was done in Chennai, it was contended by the revision petitioner/defendant that it would not confer jurisdiction on the trial Court to try the above suit. Hence, he filed I.A.No.17767 of 2007 for the above said relief. This was contested by the respondent/plaintiff by filing a counter affidavit wherein it was stated that the suit promissory note was made-over in favour of the respondent/plaintiff by the creditor, Thiru S.Pugalenthi on receipt of a sum of Rs.45,600/- at Chennai and the same was also intimated by the Creditor himself to the revision petitioner/defendant on 5.6.2004. Thereafter, the respondent/plaintiff sent an advocate notice demanding payment due to the promissory note and the notice dated 22.06.2004 was also acknowledged by the revision petitioner/ defendant on 28.06.2004. In such circumstances, it was contended by the revision petitioner/defendant that the trial court has got ample jurisdiction to entertain the suit. The crux of the submission of the respondent/ plaintiff is that the assignment of made-over of the suit promissory note took place on 30.05.2004 at Chennai within the jurisdiction of the City Civil Court and therefore, the City Civil Court has got jurisdiction to entertain the suit since a part of the cause of action arises in Chennai under Sec.20(2) C.P.C.
9. It was also pointed out by the respondent/plaintiff in the counter affidavit that as the suit is posted for trial, the question of territorial jurisdiction can be decided only in the trial and it is too late in the day to file an application to try the issue of territorial jurisdiction as preliminary issue after the issues were settled and the suit is posted for trial.
10. The trial court by order dated 07.01.2008 dismissed I.A.No.17767 of 2007 by observing that the question of territorial jurisdiction is a question of fact and therefore, there is no necessity to try the same as a preliminary issue. The learned Judge has also found that the issues have already been settled and the suit stands posted for trial and therefore, the preliminary issue of territorial jurisdiction could not be taken up as prayed for by the revision petitioner/defendant.
11. Aggrieved by the order of the trial court dated 07.01.2008, the defendant in the suit has filed the above Civil Revision petition under Article 227 of the Constitution of India.
12. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. I have also gone through the entire documents available on record.
13. The learned counsel for the revision petitioner placing strong reliance on a judgment of the Andhra Pradesh High Court reported in A.I.R. 2005 A.P. 37 (S.S.V.Prasad V. Y.Suresh Kumar and another) contended that the holder in due course of a negotiable instrument can present a suit to recover the amount covered by it only in a Court within whose territorial jurisdiction the defendant therein resides or carry on business or in a Court within whose territorial jurisdiction the place at which such negotiable instrument can be presented. In short, the learned counsel for the revision petitioner submits that even assuming without admitting the made-over of the promissory note took place at Chennai, still the trial court has no jurisdiction and the suit ought to have been filed only in Salem District as none of the cause of action arises within the jurisdiction of Chennai City Civil Court.
14. The learned counsel for the revision petitioner further relied on the decision of this court, reported in 1999(3) L.W. 837 (M.Arunachalam Vs. V.Rajaram Reddiar) submitted that at the most, the respondent/plaintiff is only a holder of the cheque and not a holder in due course and as a holder of the cheque, he cannot maintain the suit in Chennai and he has to only approach the competent Court in Salem District only.
15. Per contra, the learned counsel for the respondent/plaintiff submits that the assignment of a Promissory note by the payee is a part of the cause of action within the meaning of Sec.20(2) C.P.C. and therefore, the assignee can sue on the promissory note in the Court having jurisdiction where the assignment took place. The learned counsel further pointed out that the respondent/ plaintiff is not a holder of the cheque and he is a holder in due course and therefore, the suit is very much maintainable before the trial Court. In support of his submissions, the learned counsel for the respondent/ plaintiff relied on the following decisions:
1. A.I.R. 1917 MAD 221 (Manepalli magama and others Vs. Manepalli Sathiraju)
2. A.I.R. 1934 CAL 175 (Harnathrai V Churamoni)
3. A.I.R. 1953 NAG 192 (Gopal Ghuriamal V. T.G.S.Narayanan and another)
4. A.I.R. 1955 PUN 93 (Muzaffar Ali Khan and another V L.Jawanda Mal Lala Ditmal and another)
5. A.I.R. 1955 RAJ 53 (Abdul Gafoor Vs. Sensmal and others)
6. A.I.R.1966 AP 334 (Radhakrishnamurthy Vs Chandrasekharar Rao)
7. 1969(2) M.L.J. 148 (Kunju Pillai and others Vs Periasami
8. 1981 SC 1683 (Pathumma and Kuntalan Kutty)
9. 1987 P & H 104 (Ajaib Singh V. Baldev Singh)
10. 1993(3) L.W. 837 (M.Arunachalam Vs V.Rajaram Reddiar) (the same decision relied on by the learned counsel for the revision petitioner also)
11. A.I.R. 1993 SCC 2094 (R.S.D.V.Finance Co. Pvt.Ltd. V.Shree Vallabh Glass Works Ltd)
12. An unreported judgment dated 17.03.2005 made in C.R.P.No.976 of 2004 (The Special Officer, Vellore District Vs S.Jayaraman)
16. I have considered the rival submissions carefully with regard to facts and citations.
17. From the facts that are stated above and the arguments advanced on behalf of both the parties, the question that arises for consideration is whether a holder in due course can maintain a suit in the place where the endorsement is made on the promissory note enabling the holder in due course to recover the money due under the promissory note.
18. Admittedly, the suit is based on a promissory note which was executed by the revision petitioner/defendant in Salem District in favour of Thiru S.Pugalenthi. It is also not in dispute that the revision petitioner is residing at Athur, Salem District.
19. The case of the respondent/plaintiff is that the said Thiru S.Pugalenthi made-over the promissory note to the respondent/plaintiff on 30.05.2004 at Chennai. This was sought to be denied by the revision petitioner/defendant and their further contention is that even assuming without admitting that the made-over took place in Chennai, still it would not give a cause of action for filing the suit in Chennai.
20. Another argument was also advanced on behalf of the revision petitioner by contending that even otherwise the respondent/plaintiff is only a holder of the cheque and not a holder in due course, therefore, the suit cannot be maintained in the City Civil Court.
21. First, let me find the status of the respondent/ plaintiff i.e. whether he is a holder or a holder in due course.
22. A copy of the promissory note executed by the revision petitioner/defendant was made available by the respondent/plaintiff in the typed set of papers. A perusal of the same will make it very clear that the same was executed in Athur Taluk, Salem District, by the revision petitioner/ defendant in favour of Thiru S.Pugalenthi, S/o A.Chellamuthu Udayar and on the backside of the promissory note, an endorsement was made by the said Thiru S.Pugalenthi, on 30.05.2004 at Chennai by stating that he has made-over the promissory note in favour of the respondent/plaintiff after receiving a sum of Rs.45,600/- which includes both the principal and the interest amount. It is further stated that in the endorsement that the respondent/plaintiff is absolutely entitled to get the entire amount covered by the promissory note from the revision petitioner/plaintiff.
23. Therefore, it is made very clear that the respondent/plaintiff is not just the holder of the cheque but a holder in due course because the said Thiru S.Pugalenthi has clearly admitted that he has received a sum of Rs.45,600/- from the respondent/plaintiff and only thereafter, he has made over the promissory note. If that being so, the issue to be decided in the suit is whether the respondent/plaintiff is entitled to maintain the suit in Chennai and whether the City Civil Court has got territorial jurisdiction to try the above suit.
24. In A.I.R. 2005 A.P. 37 (cited supra), the Andhra Pradesh High Court observed as follows:
"35. Therefore, it is held that the holder in due course, of a negotiable instrument can present a suit to recover the amount, covered by it, only in a Court within whose territorial jurisdiction the defendants therein reside, or carry on business; or in a Court within whose territorial jurisdiction, the place at which such negotiable instrument, can be presented, under Sections 68 to 70 of the N.I. Act, is situated."
25. Relying on the above judgment, it was contended by the learned counsel for the revision petitioner that the made-over of the promissory note in Chennai would not confer any territorial jurisdiction on the City Civil Court.
26. I am unable to accept the submissions of the learned counsel for the revision petitioner in this regard.
27. In 1999(3) L.W. 837 (cited supra), this Court distinguished between the two expressions "Holder" and "Holder in due course". This Court observed that as per Sec.8 of the Negotiable Instrument Act, a holder of a promissory note is any person entitled in his own name to the possession of thereof and to receive or recover the amount due thereon from the parties thereto. Sec.(8) of the said Act, does not provide for any consideration for a person to be a holder of a instrument. When there is no consideration for a person, then he is only a holder and not a holder in due course. This Court further added that if the plaintiff is a holder in due course as contemplated under Sec.9 of the Act, then the assignment having been made for consideration within the jurisdiction of that court and therefore, the suit before the said court is definitely well within its jurisdiction, whereas such a cause of action has not arisen in the case of a person who is only a mere holder. The relevant portion reads as under:
"5. In the light of the arguments advanced by the learned counsel on either side, I carefully went through the entire pleadings as well as the materials available on record. The issues that have been framed by the learned trial Judge also arise for consideration in these appeals. First, le me consider as to whether the plaintiff is a "holder in due course". I perused the endorsement found in Ex.A.1 made by the promisee in favour of the plaintiff. It is dated 05.10.82. The endorsement is in Tamil. It was in favour of the plaintiff residing at Pahandi Village, Panruti Taluk and made by the promisee residing at Iruvalpatti Village, Tirukovilur Taluk. The endorsement as made therein authorises the recovery of the entire principal and interest due under the promissory note and for payment. The assignment does not spell out any other consideration in favour of the plaintiff. Under Sec.9 of the Negotiable Instruments Act a "holder in due course" means any person, who for consideration become the possessor the promissory note etc...... Admittedly, in this case there is no consideration for the plaintiff coming into possession of the promissory note. Therefore, the plaintiff would not be "holder in due course". But the matter does not end there. According to me, even without being a "holder" as defined under Sec.8 of the Negotiable Instruments Act. The "holder of a promissory note is defined to mean "any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto". In this case, the plaintiff had been expressly authorised by the promisee to recover the money due under the promissory note. In contrast to Sec.9 of the Negotiable Instruments Act, Sec.8 of the said Act does not provide for any consideration for a person to be a "holder" of an instrument. From the tenor of the endorsement found on the promissory note, there cannot be any doubt that the plaintiff is a person entitled in his own name to the possession of the said instrument. Therefore, there cannot be any difficulty in holding that the plaintiff is a "holder" of the instrument. The question that follows then is whether a "holder" can maintain a suit on the promissory note to recover the money due ?
12. On this position namely, the plaintiff being a "holder" the question that follows is whether the Sub Court at Cuddalore has jurisdiction to try the Suit or not. If the plaintiff is the "holder in due course" as contemplated under Sec.9 of the said Act, then the assignment having been made for consideration within the jurisdiction of that Court, it can be definitely said that a part of cause of action had arisen within the jurisdiction of that Court and therefore the suit filed before the said Court is definitely well within its jurisdiction. In as much as I have held that the plaintiff is not the "holder in due course", I have to necessarily state that the cause of action that was stated to have been available to the plaintiff as the 'holder in due course' relying upon the assignment in his favour, is no longer available to him in view of the finding rendered by me that the plaintiff is not the "holder in due course" but only a mere "holder. Therefore, in my opinion the Sub Court at Cuddalore would have no jurisdiction at all and at best the plaintiff would only be an agent of the promisee to initiate action on the basis of the promissory note and take necessary steps in regard thereto. The promisor and the promise to the promissory note were residing within the jurisdiction of Tirukovilur Taluk on the date when the document was executed. The consideration has also passed between the parties only within the jurisdiction of Tirukovilur Taluk. The promissory note does not specify the place for payment. It is needless to state that the place of suing on a promissory must be determined with reference to the provisions of section 20 of C.P.C. The Promissory note does not indicate nay particular place, as already noticed, as the place for payment of the money due under the promissory note. In any event, it is clear that the place of payment is not specified to be a place within the jurisdiction of the Sub Court at Cuddalore. The place of residence of the promisor and the promisee; the place of execution of the promissory note and the place where consideration passed under the promissory note between the promisor and the promisee falls outside the Jurisdiction of the Sub Court, Cuddalore. A Full Bench of the Madhya Pradesh High Court in the judgment reported in J.N.Sahni V. Madhya Bharat State (1954 Madhya Bharat 189) has held as follows:
"the common law rule that the debtor must find out his creditor, is not applicable to the case of a negotiable Instrument and that a promissory note payable on demand which does not specify the place of payment is payable at the place where the maker of the promissory note resides or carries or business".
13. Therefore, the mere endorsement in the promissory note enabling the plaintiff to recover the money due under the promissory note and the fact that the plaintiff is a resident of a place within the jurisdiction of the Sub Court at Cuddalore, would not mean that the said Court has jurisdiction to try the suit. In as much as the entire cause of action for the suit promissory note arose within the jurisdiction of Tirukovilur Taluk; the consideration having been passed within that jurisdiction and both the promisor and the promisee residing within that jurisdiction, there cannot be any difficulty at all in upholding the argument of the learned counsel for the defendant that the Sub Court at Cuddalore would have no jurisdiction at all."
28. In the light of the above judicial pronouncements of this Court, I am not inclined to follow the judgment of the Andhra Pradesh High Court reported in A.I.R. 2005 A.P. 37 (cited supra).
29. Further, as early as in 1916 itself, this court has taken a categorical stand that the assignment of promissory note by the payee is a part of the cause action within the meaning of Sec.20(c) C.P.C. and the assignee can sue on it in the court having jurisdiction where the assignment took place (AIR 1917 MAD 221) (cited supra).
30. The above said judgment of this Court has been quoted with approval in
1. A.I.R. 1966 A.P. 334 (cited supra)
2. A.I.R. 1955 RAJ 53 (cited supra)
3. A.I.R. 1955 PUN 93 (cited supra)
4. A.I.R. 1953 NAG 192 (cited supra)
31. In A.I.R. 1934 CAL 175 (cited supra), the Calcutta High Court had also held that in a suit by an assignee, the assignment is a part of the cause of action and upon the cause of action leave has been invariably granted.
32. In 1969(2) M.L.J. 148 (cited supra), this court held that a holder of a negotiable instrument secures the title to the instrument which title is enforceable by him in a manner ordinarily known to law.
33. From the above judgments, I have no hesitation in holding that the present suit filed by the respondent/ plaintiff in the City Civil Court is very much maintainable as the City Civil Court has got territorial jurisdiction to try the same considering the fact that the made-over was made in Chennai on 30.05.2004 after the above said S.Pugalenthi received a sum of Rs.45,600/- from the respondent/plaintiff. I am also holding that the respondent/ plaintiff is not a holder of the cheque but a holder in due course, as consideration has been passed from the respondent/plaintiff to the said Thiru S.Pugalenthi.
34. Now, let me consider the other submissions made by the learned counsel for the respondent/plaintiff that the question of preliminary issue with regard to the territorial jurisdiction of the suit could not be taken up after the issues were settled and the suit is posted for trial.
35. In A.I.R. 1981 SC 1683 (cited supra), the Hon'ble Supreme Court held as follows:
"3. We have heard learned counsel for the parties on the question of jurisdiction. An unfortunate aspect of his litigation has been that although that question has been agitated already in three courts and has been bone of contention between that parties for more than a decade, the real provision of law which clinches it was never put forward on behalf of the appellant before us nor was adverted to by the learned District Judge or the High Court. That provision is contained in sub-section (1) of Section 21 of C.P.C. which runs thus:
"21.(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice."
In order that an objection to the place by an appellate or revisional court, the fulfilment of the following three conditions is essential:
(1) The objection was taken in the Court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.
(3) There has been a consequent failure of justice.
All these three conditions must co-exist.
Now, in the present case conditions nOs.1 and 2 are no doubt fully satisfied; but then before the two appellate courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred. We called upon learned counsel for the contesting respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any. In this view of the matter we must hold that the provisions of the sub section above extracted made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded. We therefore, refrain from going into the question of the correctness of the finding arrived at by the High Court that the Manjeri Court had no territorial jurisdiction to take cognizance of the application praying for final decree.
36. In A.I.R. 1987 P & H 104 (cited supra), the Punjab and Haryana High Court observed as follows:
"4. I find force in the submission of Shri Jhanji, Sub-Sec.(1) of S.21 of C.P.C. provides that no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. It is evident from a reading of the sub-section that an objection regarding the territorial jurisdiction of a Court should be raised before the settlement of the issues and not thereafter. Even if a plea regarding jurisdiction has been taken in the written statement, but it is not pressed at the time of settlement of the issues, normally it is deemed to be waived and the defendant cannot be allowed to raise the objection thereafter. However, in an exceptional case he may be allowed to take the objection if he shows that failure of justice would be caused if he was not allowed to raise the objection. It is a salutary provision and has been enacted so that the defendant by raising the objection at a late stage may, not be able to delay the decision of the case. Though the section applies to the appeals and revisions, but the principle enunciated therein is also applicable to the suits. In the above said view, I am fortified by the observations of the Madras High Court in Nanak Chand V. T.T.Elect. Supply, AIR 1975 Mad 103. It was observed by the Division Bench therein that the section speaks of a rule of prudence as well as rule of guidance. The guidelines make it imperative that such an objection has to be raised at the earliest opportunity and in all cases where issues are settled at or before such settlement. If by an act of omission or commission the defendant having raised the plea as to jurisdiction does not even ask for trial of the issue on such question as a preliminary issue and allows the trial to go on in the usual course on all the issues, he should be deemed in such circumstances to have waived his objection as to jurisdiction. I am in respectful agreement with the above observations.
5. It is true that the written statement can be allowed to be amended at a late stage. However, an objection regarding the territorial jurisdiction of the Court cannot be allowed to be raised by way of amendment of the written statement at a late stage. In the present case, the respondent has also not been able to show any prejudice to him or failure of justice on account of the trial of the case having been held in the Court at Jalandhar."
37. In A.I.R. 1993 SC 2094 (cited supra), the Hon'ble Supreme Court observed as under:
"7. We have heard learned counsel for the parties and have perused the record. In our view the learned Division Bench was wrong in holding that in the facts and circumstances of this case the Bombay High Court had no jurisdiction to entertain the suit. The amount of Rs.10,00,000/- itself was paid by a cheque dated 5.7.1983 drawn on the Canara Bank and the said amount was deposited in the bank account of the defendant at the Bank of Baroda, Nariman Point Bombay. On 11.7.1983 the defendant issued a deposit receit and the said deposit receipt contained an endorsement of 'Subject to Anand Jurisdiction'. The date of maturity was mentioned as 3.10.1983. it is also not in dispute that the amount of Rs.10 lakhs along with interest was not paid on the due date and the defendant wrote a letter to the plaintiff on 19.10.1983 stating therein that in view of certain problems they were not in a position to repay the deposit amount on the due date and thereby requested the plaintiff to allow the defendant to keep the deposit till the end of November 1983 with interest at 19% per annum on the delayed payment as well. The defendant also issued the five post dated cheques for Rs.2 lakhs each drawn on Bank of Baroda, Nariman Point, Bombay dated 23rd, 24th, 29th and 30th November 1983 respectively. It is also an admitted position that the leave to defend the suit was obtained by the defendant from the Bombay High Court itself. The learned Division Bench in our opinion was clearly wrong in holding that the suit was not based on the five post dated cheques and that the Bombay High court had no jurisdiction to try the suit as the deposit receipt contained an endorsement of 'Subject to Anand Jurisdiction." The entire reading of the plaintiff clearly shows that the suit was based not only on the basis of the deposit receipt of Rs.10 lakhs but also on the basis of the five post dated cheques. Even if there was any doubt in the mind of the Division Bench, the learned counsel for the plaintiff had made a request for allowing him to amend the plaint but such request was wrongly refused by the learned Division Bench. The Division Bench was totally wrong in passing an order of dismissal of suit itself when it had arrived to the conclusion that the Bombay Court had no jurisdiction to try the suit. The only course to be adopted in such circumstances was to return the plaint for presentation to the proper Court and not to dismiss the suit. It may be further noted that the learned Single Judge trying the suit had recorded a finding that the Bombay Court had jurisdiction to entertain and decide the suit. Sub-Sec.(1) of S.21 of C.P.C. provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been consequent failure of justice. The above provision clearly lays down that such objection as to the place of suing shall be allowed by the appellate or revisional court subject to the following conditions:-
(i) That such objection was taken in the Court of first instance at the earliest possible opportunity.
(ii) in all cases where issues are settled then at or before such settlement of issues:
(iii) there has been a consequent failure of justice.
8. In the present case though the first two conditions are satisfied but the third condition of failure of justice is not fulfilled. As already mentioned above there was no dispute regarding the merits of the claim. The defendant has admitted the deposit of Rs.10 lakhs by the plaintiff, as well as the issuing of the five cheques. We are thus clearly of the view that there is no failure of justice to the defendant decreeing the suit by the Learned Single Judge of the Bombay High Court, on the contrary it would be totally unjust and failure of justice to the plaintiff in case such objection relating to jurisdiction is to be maintained as allowed by the Division Bench of the High Court in its appellate jurisdiction."
38. In the unreported judgment dated 17.03.2005, made in C.R.P. No.976 of 2004 (cited supra), this Court held that an objection of the jurisdiction has to be tried before the settlement of issues.
39. In the light of the above judgments, I find force in the submissions of the learned counsel for the respondent/plaintiff that such objections as to the territorial jurisdiction of the Court should be raised at the earliest point of time and atleast before the settlement of issues and not thereafter. In the present case, it is an admitted fact that the issues were already settled and the matter is posted for trial. In such circumstances, I am in entire agreement with the trial court in stating that the application filed in I.A.No.17767 of 2007 should have been filed prior to the settlement of issues.
40. In the result, the Civil revision petition is dismissed as devoid of merits by upholding the order of the trial court dated 7.1.2009. No cost. Connected M.P.No.1 of 2008 is also dismissed.
15.10.2009 Index: Yes/No Internet:Yes/No vaan To The XVII Assistant City Civil Court, Chennai.
S.RAJESWARAN,J vaan Pre-Delivery Order in C.R.P.PD.No.1052 of 2008 and M.P.No. 1 of 2008 Dated: 19.10.2009 Dated: 19.10.2009 26.08.2008