DINABANDHU PATRO Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This application has been filed by the petitioners under Section 115 of the Code of Civil Procedure ('CPC' in short) assailing the order passed by the District Judge Ganjam-Gajapati. Berhampur in M.J.C. No. 30 of 2002, disposing of an application filed under Section 24 of the C.P.C. by the defendants, the present petitioners, with a prayer for transfer of T.M.S. No. 68 of 1998, pending before the Civil Judge (Senior Division), Aska to the Court of the Civil Judge (Senior Division), Berhampur.

(2.) The State Bank of India, i.e., opposite party No. 1 as plaintiff has filed the above suit for recovery of the loan amount from the present petitioners as well as opposite parties 2 and 3 jointly and severally. The application under Section 24, CPC was rejected by the District Judge with the observation that mere adjournment application and posting the suit for peremptory hearing does not come within the ambit of Section 24, C.P.C. As it appears from the impugned order, the suit was posted to 10-5-2002. The present petitioners being defendants applied for time on the ground of pre-occupation of their lawyer at Berhampur. The same was allowed and the case was posted for hearing peremptorily to 10-5-2002 for which an application was moved for transfer of the suit. Now a stand is taken in this present proceeding that the defendants reside at Berhampur i.e. outside the jurisdiction of Aska Court and the plaintiff-Bank is also situated at Berhampur, and all the formalities and transactions of the loan took place at Berhampur. According to the learned counsel for the petitioners the suit has been filed by the Bank in the Court of Civil Judge (Senior Division), Aska solely for the reason that the mortgaged property is situated within the territorial jurisdiction of the Aska Court. According to him, continuance of the suit in Aska Court is not in the interest and convenience of the parties, particularly of the petitioners. It is further pleaded that all the accounts of the petitioners are at Berhampur and continuance of the suit only due to the reason of location of property at Aska, which is 40 kilometers away from the place where the petitoners reside, will cause undue hardship to them. Accordingly, a prayer is made to set aside the order passed by the District Judge, Ganjam-Gajapati, Berhampur and for transfer of the suit from Aska Court to Berhampur Court.

(3.) In order to fortify his argument learned counsel for the petitioners refers to the decision of this Court in the case of Mulraj Doshi v. Gangadhar Singhania, reported in AIR 1982 Orissa 191 and submits that the competent Court to try the suit is Civil Judge Senior Division), Berhampur and not the Civil Judge (Senior Division). Aska, the reason being that the plaintiff Bank is situated at Berhampur and all the transactions of the loan took place at Berhampur. In the said decision it was held that the expression "competent to try" in section 24 of the Civil Procedre Code refers to pecuniary jurisdiction and not territorial jurisdiction. We further refer to a decision of the Apex Court in the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde reported in AIR 1990 SC 113 wherein it was held that-