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HIGH COURT OF CALCUTTA
Ramendra Mohan Datta
KARAM CHAND THAPAR AND BROS. (COAL SALES) - Appellant
Versus
INDER MOHAN KAPOOR - Respondent
Suit 4243 Of 1969
Decided On : JANUARY 13, 1971
LETTERS PATENT - Clause 12 - Leave to sue - Revocation - Balance of convenience - Suit for recovery of money and damages for breach of trust and neglect of duty - Cause of action arising within jurisdiction of Madras Court - Defendant residing at Madras - Witnesses and evidence mostly available at Madras - Suit allowed to be proceeded with at Madras.
Fact of the Case:
Plaintiff, a company with its registered office in Calcutta and a branch office in Madras, sued the defendant, its former branch manager at Madras, for recovery of money and damages for breach of trust and neglect of duty. The defendant applied for revocation of leave granted to the plaintiff under Clause 12 of the Letters Patent to sue in the Calcutta High Court on the ground of balance of convenience.
Finding of the Court:
The court held that the balance of convenience was overwhelmingly in favor of the suit being heard by the Madras Court, considering that the defendant resided in Madras, the cause of action arose within the jurisdiction of the Madras Court, and the witnesses and evidence were mostly available at Madras.
Issues: Whether the leave granted to the plaintiff under Clause 12 of the Letters Patent should be revoked on the ground of balance of convenience.
Ratio Decidendi: In exercising its discretion to grant leave under Clause 12 of the Letters Patent, the court must consider the balance of convenience between the parties. A strong case must be made out to succeed in an application for revocation of leave on the ground of balance of convenience. The paramount consideration is whether acquiring jurisdiction would cause serious prejudice resulting in injustice to the defendant if the suit were permitted to proceed in the court where it was instituted with such leave.
Final Decision: The court revoked the leave granted to the plaintiff under Clause 12 of the Letters Patent and directed that the plaint be taken off the file with liberty to the plaintiff to present it with suitable modifications at the proper and convenient court at Madras.
( 1 ) IN my opinion, if the materials which are now being placed before the Court had been available to the Court at the time of granting such leave under Clause 12 of the Letters Patent then the court, in its discretion, would not have granted the leave considering the balance of convenience of the parties. In exercising its dis cretion in granting leave under Clause 12 it is always relevant for the Court to consider the question of balance of convenience but it is not possible for the Court to consider the same when the Court grants this leave ex parte at the time of the institution of the suit. Therefore the proper time to consider the balance of convenience is the time when the application for revocation of the leave under Clause 12 is heard.
( 2 ) TO succeed in an application for revocation of leave on the ground of balance of convenience, a strong case has to be made out. In other words, a mere balance of convenience would not be enough but it must be such that it would be overwhelmingly in favour of the suit being heard by a Court other than the Court granting the leave. The paramount consideration for the Court in such a case would be to consider whether in acquiring jurisdiction it would cause serious prejudice resulting in injustice to the defendant if the suit would be permitted to be proceeded with in the Court where it has been instituted with such leave.
( 3 ) IN my opinion, this is a case where leave ought to be revoked on the basis of the following considerations.
( 4 ) THE plaintiff has its branch office at Madras. Its registered office is at Calcutta. The defendant resides at Madras. The defendant was appointed as the plaintiff's branch manager at Madras in 1958. As such branch manager the defendant loo"ked after the plaintiff's business in the territory allotted to the Madras branch as per instructions received from Calcutta. Under the supervision of the defendant the books of account and records were maintained at the Madras office. The defendant got his monthly salary and other remunerations at Madras and earned a share of the profit as commission at Madras. The defendant acted as such branch manager till May 23. 1969 when his services at Madras were terminated by the plaintiff. During his service as branch Manager the defendant withdrew various amounts and the same were recorded in a mutual, open and current Account maintained at the said Madras branch. The plaintiff claims herein recovery of such amount to the extent of Rs. 1,10,154. 59 p. from the defendant. The plaintiff's further allegation is that the defendant was bound in a fiduciary character and/or charged with the duty of looking after and/or protecting the interests of the plaintiff and its business including the collection of all out standings due to the plaintiff and protection of all stores and stocks of the plaintiff at Madras. In breach of trust and/or neglect of duty the defendant failed and neglected to recover or take any steps for the recovery of several large sums of money amounting to a sum of Rs. 1,50,000/- with the result the plaintiff has suffered loss to that extent. Besides the same the defendant also failed and neglected to account for 570 tonnes of coal valued at Rs. 67,197. 30 paise. The total claim against the defendant is for a sum of Rs. 3,70,264. 62 paise. In annexure 'c' to the plaint a long list of the names of the parties from whom moneys have not been realised by the defendant to the total extent of Rupees 1,10. 154. 59 paise have been set out. They are mostly of places in and around Madras.
( 5 ) IT would clearly appear that practically the entire evidence is available at Madras and it would be a tremendously costly affair to call the various witnesses who might be necessary to be called both to prove and to disprove the allegations in the plaint. The entire books of account must be at Madras. It is no doubt true that the plaintiff might be in a position to bring down all these books fro
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