IMPORTANT POINT
Mere balance of convenience is not enough to deprive a plaintiff of his choice of forum.

Arijit Banerjee, J.—This application has been taken out by the defendant praying that the leave granted under Clause 12 of the Letters Patent be revoked, the plaint filed in the suit be taken off the record and the suit be dismissed.

2. The case pleaded in the plaint is that sometime in January, 2010, the defendant approached the plaintiff at its then registered office at 38, Bentinck Street, 2nd Floor Room No. 7, Calcutta – 1 within the jurisdiction of this court for financial assistance for the purpose of expanding its business. An oral agreement was entered into by and between the parties at the aforesaid address within this court’s jurisdiction for advancing a loan by the plaintiff to the defendant on the terms and conditions mentioned in paragraph 5 of the plaint. The cheques drawn in favour of the defendant by the plaintiff aggregating Rs. 1,58,00,000/- were encashed by the defendant. However, when the plaintiff demanded repayment of the loan, the defendant failed and neglected to do so. In June, 2011 a representative of the defendant went to the plaintiff’s then registered office within this court’s jurisdiction and agreed to repay the sum of Rs. 1,58,00,000/- within 31st July, 2011 and in default to pay interest at the rate of 18 per cent per annum. The defendant failed and neglected to repay the loan within 31st July, 2011 or thereafter. The plaintiff through its advocate’s letter dated 28th October, 2011 sent from the advocate’s office at No. 6 Old Post Office St. Calcutta – 1, within this court’s jurisdiction, demanded repayment of the said loan along with interest from the defendant. In spite of demands, the defendant failed, neglected and refused to repay the said loan or any part thereof. Accordingly, the plaintiff is entitled to a decree for the sum of Rs. 1,69,85,000/- and decree for interest pendente lite at the rate of 18 per cent per annum. Part of cause of action pleaded in paragraphs 5, 11 and 14 of the plaint arose within this court’s jurisdiction and those pleaded in paragraph 15 of the plaint arose outside the jurisdiction of this court. Further the defendant is liable to seek its creditor and make payment of the aforesaid amount to the plaintiff with interest at the plaintiff’s registered office which is within the jurisdiction of this court.

3. On the basis of the aforesaid pleadings, the suit was instituted in this court by the plaintiff on or about 13th February, 2012 after obtaining leave under clause 12 of the Letters Patent.

4. The present application was taken out by the defendant on or about 10th April, 2012.

5. The case of the defendant as pleaded in the application and as submitted at the time of hearing is that neither the defendant is carrying on any business in Calcutta nor it had any occasion to negotiate with the plaintiff in Calcutta nor any part of the cause of action of the suit has arisen within the ordinary original civil jurisdiction of this court. The defendant does not deny receipt of the sum of Rs. 1,58,00,000/- but states the entire payment was received by it at Udaipur. The said money was earmarked as part consideration for purchase of land at Udaipur and, therefore, the dispute between the parties touches immovable property situated at Udaipur and hence, this court lacks territorial jurisdiction to entertain the suit.

6. The defendant has further contended that the balance of convenience and inconvenience overwhelmingly lies in favour of taking the plaint off the file since the defendant does not carry on business in Calcutta nor the defendant has entered into any contract with the plaintiff. If the suit is heard and tried before this court, the defendant will have to bring down to Calcutta all the records, books of accounts, and other related documents which are voluminous in nature from Udaipur which would be burdensome and difficult. The witnesses who would be required to depose in the matter are all residents of Udaipur. It would cause undue hardship to the defendant i