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HIGH COURT OF CALCUTTA
Suhas Chandra Sen, J.
Ratan Kumar Bhar Pilania
Vs.
Laxmi Devi Bhar Pilania & Ors.
Suit No. 265 of 1982
Decided on : November 23, 1984
JURISDICTION - PLACE OF SUIT - BALANCE OF CONVENIENCE - WHETHER LEAVE GRANTED UNDER CLAUSE 12 OF THE LETTERS PATENT SHOULD BE REVOKED - WHETHER THE CAUSE OF ACTION IN PART AROSE WITHIN THE JURISDICTION OF THE COURT - WHETHER THE COURT IS THE NATURAL FORUM FOR TRIAL OF THE DISPUTE - ANALYSIS AND INTERPRETATION OF RELEVANT PROVISIONS OF THE LETTERS PATENT.
Fact of the Case:
The plaintiff, a resident of Calcutta, lent money to his brother, Omprakash, who resided and carried on business in Ahmedabad. The loan was advanced in Ahmedabad, and part payments were made in Calcutta. The agreement to enhance the interest rate was also entered into in Calcutta. The plaintiff filed a suit in Calcutta with leave under clause 12 of the Letters Patent, alleging that the cause of action arose in part within the jurisdiction of the court.
Finding of the Court:
The court held that the leave granted under clause 12 of the Letters Patent should not be revoked. It found that the balance of convenience was fairly even, as both the plaintiff and the defendants would face difficulties in prosecuting and defending the suit in each other's jurisdictions. The court also held that Calcutta was the natural forum for trial of the dispute, as the money was lent in Ahmedabad but had to be repaid in Calcutta, part payments were made in Calcutta, and the agreement to enhance the interest rate took place in Calcutta.
Issues: 1. Whether the leave granted under clause 12 of the Letters Patent should be revoked. 2. Whether the balance of convenience is in favor of trial of the suit in Calcutta or Ahmedabad. 3. Whether Calcutta is the natural forum for trial of the dispute.
Ratio Decidendi: 1. The court held that the leave granted under clause 12 of the Letters Patent should not be revoked because: a. The balance of convenience was fairly even, as both the plaintiff and the defendants would face difficulties in prosecuting and defending the suit in each other's jurisdictions. b. Calcutta was the natural forum for trial of the dispute, as the money was lent in Ahmedabad but had to be repaid in Calcutta, part payments were made in Calcutta, and the agreement to enhance the interest rate took place in Calcutta. 2. The court relied on the following principles in reaching its decision: a. The plaintiff has a right to choose his forum. b. Mere balance of convenience is not a decisive factor in a case like this. c. The defendants must establish that the balance of convenience is overwhelmingly in favor of the suit being tried at Ahmedabad.
Final Decision: The application to revoke the leave granted under clause 12 of the Letters Patent was rejected.
The case of the plaintiff as stated in the plaint is that the plaintiff carries on business at 201A, Mahatma Gandhi Road, Calcutta. The plaintiff lent and advanced money to his elder brother, Omprakash Bhar Pilania, who used to carryon business under the Dame and style of Laxmi Narain Omprakash as sole proprietor at premises No 272, New Cloth Market, Ahmedabad. Between 1st April, 1974 and 20th October, 1976 the plaintiff lent and advanced to Omprakash Rs. 55,940/-. The agreement in respect of the amount was entered into at Ahmedabad initially the rate of interest was 12% per annum. With effect from 24th March, 1980 the rate of interest was enhanced to 18% per annum by mutual coneent. The agreement to enhance the rate of interest was entered into at the plaintiff’s place of business at Calcutta. Omprakash repaid a total sum of Rs. 9,792,41P. in two instalments on 23rd October, 1976 and again on 5th April 1979 at Calcutta. In the books of accounts of the plaintiff it was recorded that the amount was received by cash transferred form account of Bhar Pilania Company. Omrakash died intestate on or about 20th June, 1980 leaving him surviving his widow (Defendant No.1) and his minor children (Defendant Nos. 2, 3 and 4) as his only heirs and legal representatives. It has been alleged in the plaint that on the death of Omprakash, the defendant Nos. 1, 2, 3 and 4 took possession of the entire estate including the sole proprietary business of Omprakash and are in possession of the same. The plaintiff has claimed a sum of Rs. 1,10,45812P as due and payable by the Defendants to the plaintiff. The plaintiff has further claimed that the amount was payable at the plaintiff’s place of business at Calcutta
2. The suit was filed after obtaining leave under clause 12 of the Letters Patent. This application has been made for revocation of the leave that has been granted. It has been contended by M. Das that in the first place the natural forum of the suit was at Ahmedabad. He has argued that Omprakash, now deceased, and the defendants all resided at Ahmedabad. The loan was advanced at Ahmedabad. The plaintiff actually went to Ahmedabad to give this money to the defendant and nothing has really happened so far as the loan is concerned in Calcutta. The only thing that has been pleaded in the plaint in respect of the loan transection which took place in Ca1cutta is an agreement to enhance the rate of interest Mr. Das has argued that the leave granted under clause 12 of the Letters Patent should be revoked on this ground alone. It has next been contended that the balanced convenience is overwhelmingly in favour of the suit to be tried at Ahmedabad. The defendant No.1 is a widow with three minor children who are the defendants Nos. 2, 3 and 4. It will cause great hardship and inconvenience to them to come to Calcutta and defend this suit. The defendants have no place of business in Calcutta and they will have to bring all the books of accounts and other evidence to Calcutta to defend this suit. The persons who arc in a position to testify are all residents of Ahmedabad and will have to be brought to Calcutta at the time of hearing of this suit.
3. I am unable to uthold the contention made on behalf of the defendants. It is well settled that in deciding the question whether the leave granted under clause 12 of the Letters Patent should be revoked or not the allegations made in the plaint must be taken to be correct. The plaintiff has alleged that the cause of action of this suit has arisen in part within the local limits of this Court. It is not the case of the defendants that the plaintiff also carries on business at Ahmedabad. It will undoubtedly be of great inconvenience to the defendants to come to Calcutta to defend this suit und bring all their books of accounts and other evidence. It will be equally inconvenient for the plaintiff to go to Ahmedabad and to prosecute the suit there and carryall his books and other evidence. It has been allege
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