Decided on March 12,1975

PASHOK TEA CO.LTD. Respondents

Cited Judgements :-



Bimal Chandra Basak, J. - (1.)This is an application for transfer of O. C Suit No. 48 of 1974 (Oriental Bank of Commerce Limited v. Pashok Tea Co. Ltd. and Ors.) now pending in Court of Subordinate Judge at Darjeeling. The plaintiff's case as made out in the said application is as follows : The plaintiff is a banking company. The defendant No. 1 is a public limited company owning tea estates, one known as Pashok Tea Estate in the District of Darjeeling and the other known as Lukan Tea Estate (also known as Mohara Tea Estate) in the District of Jalpaiguri, West Bengal. The defendant company was a constituent of the plaintiff. The defendant company was allowed to open an overdraft account with the plaintiff with effect from January, 1965 which was secured by hypothecation of the first defendant's entire tea crop already produced and to be produced in future in the aforesaid two tea estates including plant, machineries as well as stocks and stores. Initially the overdraft limit was fixed at Rs. 20,00,000 which was increased from time to time and ultimately fixed at Rs. 43,00,000. Thereafter in January, 1969 several title deeds were deposited with the plaintiff Bank to secure due repayment of the money which might be advanced by the plaintiff bank to the defendant company and might be standing in the plaintiff's credit. The defendants Nos. 2 to 4 are the Directors of the defendant Company. The defendant No. 5 has now ceased to be a director. The defendants Nos. 2 to 5 executed several deeds of guarantee and/or indemnity in favour of the plaintiff in respect of the amount or amounts which might be found due and payable by the first defendant to the plaintiff. By an agreement in writing dated 28th February, 1973 the plaintiff bank agreed to grant to defendant Bank loan overdraft and/or cash credit facilities to the extent of Rs. 43,00,000 for the purpose of cultivation, manufacture and despatch of tea during the season 1973-74 and subsequent seasons for Pashok Tea Estate and Lookan Tea Estate under certain terms and conditions. In February, 1973 by mutual agreement the said overdraft loan account was split into two accounts, namely. Fixed Loans Account and Overdraft Account. The limit in the first case was set at Rs. 16.00,000 and that in the other Rs. 21,29,000. In or about May, 1974 the defendant No, 3 deposited several title deeds with intent to create security and for due repayment of the loans advanced by the plaintiff to the defendant company. Pursuant to above from tune to time the defendant company borrowed various sums of moneys from the plaintiff and repaid divers sums to it. After giving credit to the first defendant for receipt of such payments and after taking into account all moneys lent and advanced or paid by the plaintiff to the defendant company or for or on behalf of or on ac- count of the defendant company a sum of Rs. 35,71,047.91 .paise became due and payable as on August 7, 1974. By a resolution duly passed by the Board of Directors of the defendant company in its meeting held on 16th May, 1974 the defendant company admitted and/or acknowledged that a sum of Rs. 16.00,000 in the Fixed Loan Account and a sum of Rupees 18,91,269,44 p. in the overdraft account was due and payable by the defendant company to the plaintiff bank as on 15th May, 1974. In view of the failure of the defendant company to repay the loan and in view of further breaches of said obligations, the plaintiff bank appointed one Sri Dugal, an officer of the plaintiff bank to supervise the working of the defendant company in terms of the agreement between the parties. It is alleged that the defendant company failed and neglected to give the sales figures and failed to act in terms of the said agreement. The defendant compahy in breach of the provisions of the said agreement sold various quantities of tea locally at an inordinate low price to the detriment of the plaintiff Bank without any consent from the plaintiff Bank and caused wrongful loss to the Bank. Difficulties were also created in the way of Sri Dugal in discharging his duties and by creating an atmosphere of terror and intimidation. Accordingly Sri Dugal was compelled to leave the garden. It is also alleged that the company has also failed and neglected to pay various statutory dues, like Employees' State Insurance dues, Provident Fund dues, etc-Under these circumstances this suit was instituted by the plaintiff Bank at Dance-ling Court on 11th of September, 1974 for a decree for Rs. 35,71,647.91 p. with interest, a decree in form 5 (a) or 5 of the Appendix "D" of the Code of Civil Procedure as prescribed under Order XXXIV in Rule 4 of the Code of Civil Procedure; for declaration that the properties and assets referred to in the schedules to in the plaint are charged for dues of the petitioner and a decree for sale of the properties referred to in the schedules to the said plaint and for various other reliefs. After the institution of the suit the plaintiff made various applications including an application for appointment of a Receiver. On the 7th of October, 1974 a consent petition was filed pursuant to which in order was made regarding the sale of tea manufactured in the Estate.
(2.)The reasons given in the petition for the transfer of this suit to this Court and which was repeated during submissions made before me are as follows :--
(3.)It is stated that inasmuch as the defendant had filed an application in this Court under Article 227 of the Constitution of India and under Section 115 of the Code of Civil Procedure against an order passed by the Darjeeling Court on the 24th of December, 1974, the defendants had submitted to the jurisdiction of this Court. All the defendants in the suit reside and/or carry on business within the Original Jurisdiction of this Court. The defendant company has its registered office at Calcutta and as such it maintains all its relevant records relating to the dispute in respect of which the present suit has been filed, within the jurisdiction of this Court. The suit is for money lent and advanced and all transactions for lending such money have taken place from Calcutta within the Original Jurisdiction of this Court. The respondents will not be required to produce any evidence from its tea gardens inasmuch as the transactions on which the cause of action is based took place entirely within the original jurisdiction of this Court and the petitioner had no transaction or dealing with the tea estates which are situate outside the original jurisdiction of this Court. The branch office of the petitioner is situate in Calcutta from which all moneys were advanced. Accordingly, the petitioner, like the respondents, will be saved from taking its records and employees to Darjeeling Court if the suit is allowed to proceed at the said place. It was further stated that the transaction in respect of which the suit has been filed is really a transaction appertaining to the commercial work which can be conducted more efficiently and effectively in this Court than elsewhere in the State. It is stated that the defendants should also be benefited if the suit is transferred. They would not be liable to take their employees and records to Darjeeling.

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