Decided on August 08,1994



- (1.)This application under Section 115 of the Code of Civil Procedure read with Section 151 of the Code is against the judgment and order dated 9.9.91 passed by the learned Asstt. District Judge No. 2. Guwahati in Title Suit No. 32 of 1991. The case of the petitioner is that the petitioner is a Private Limited Company having its registered office at Bhiwadi in Rajasthan and head office at New Delhi. The petitioner is engaged in the Business of printing of lottery tickets. The opp. party is a partnership firm having its head office at Calcutta and Branch Office: at Delhi. The opp. party for organizing lottery for the Government of Assam placed orders with the petitioner at Delhi for printing of lottery tickets with instruction to deliver the same to the opp. party in Delhi. The payment is made by the plaintiff to the defendant in Delhi. In the instant case, four cheques were issued by the plaintiff drawn on the Bank of Rajasthan, Janpath, New Delhi. The four cheques in question were placed before the Bank at New Delhi which returned the cheques with remarks "referred to the drawer" amounting to dishonour. In view of the aforesaid and for all purposes the entire cause of action if any relating to the dispute of non-payments and on dishonouring of cheques arose at New Delhi and the court at Guwahati has no territorial jurisdiction at all. No part of the cause of action wholly or in part arose within the jurisdiction of the Gauhati court. As such the suit filed and entertained by the Gauhati Court is totally 'without jurisdiction and prayed that the proceeding relating to T.S. No. 32 of 1991 pending in the court of learned Assistant District Judge No. 2 at Guwahati be stayed and the order dated 9.9.91 be set aside or quashed.
(2.)In order to appreciate as to whether any cause of action wholly or in part has arisen within the jurisdiction of the Gauhati Court, the Court has to look into the allegations made in the plaint. In paragraph 14 of the plaint, the allegation is that the cause of action for the suit arose on the from 26.11.90, 6.12.90, 17.12.90, 26.12.90, 19.1.91, 31.1.91, 6.2.91, 23.5.91,7:6.91 and on other various dates within the jurisdiction of this Hon"ble Court. By analysing the said paragraph the court finds that it only speaks about the date on which the cause of action is supposed to have arisen. It does not speak as to how the Guwahati courts have got the territorial jurisdiction. The only paragraph in the plaint which remotely speaks of Gauhati is paragraph 3 of the plaint. In paragraph 3 the plaintiff has alleged that the defendant used to print the lottery tickets on behalf of the Govt. of Assam being forwarded with the printing orders by the State Government and the plaintiff being the organizing agent of the said lottery on delivery of the tickets at Guwahati used to make the payment of printing of the tickets. On the basis of the aforesaid allegation, the counsel for the plaintiff had urged that the plaintiff had made out a clear cut case of the jurisdiction of the Guwahati court inasmuch as the lottery tickets used to be delivered at Guwahati by the defendant and thereafter payment of the tickets printing is to be made. I have carefully gone through the allegations in paragraph 3 and find no justification of the aforesaid submissions of the counsel for the plaintiff in the said paragraph. It is nowhere alleged that the defendant used to deliver the tickets to the plaintiff at Guwahati nor it alleged that the payments for printing of the tickets used to be made at Guwahati nor it alleged that the State of Assam used to place orders on the petitioner at Guwahati nor the said paragraphs alleges that the tickets requires for printing was despatched by the plaintiff to the defendant at Guwahati. Besides the aforesaid paragraphs, which I have analysed as above, I find no other allegation in the plaint which gives the cause of action wholly or in part to Guwahati court. The Privy Council in ILR (1989( 31 Calcutta 98/102 has held that the allegations in the plaint decides the forum, the jurisdiction does not depend upon the defence taken by the defendants in the written statement. The same principles have been reiterated by the Supreme Court in the judgment reported in (1995) 2 SCC 559. On a reading of the plaint as a whole it is evident that the plaintiff had filed the suit in Gauhati Court in order to harass the defendant and the said action of the plaintiff is highly mala fide and is an abuse of the process of the court.
(3.)From the above facts, it is patently obvious that the court of Guwahati has no jurisdiction to try or entertain the suit. The defendant has its head office at Bhiwadi and all transactions have been made by the opp. party from its Branch Office at Delhi with the defendant. The cheques were issued from Delhi by the plaintiff payable at Delhi and the same was dishonoured at Delhi. No part of cause of action relating to the aforesaid transactions ever arose at Guwahati. Orders were placed at Delhi, the same was to be executed and performed at Delhi and cheques were also issued at Delhi and dishonoured at Delhi. In AIR 1963 Patna 398/400-401, it has been held that the dishonour of a negotiable instrument will also furnish a cause of action and a suit may be brought at the place where it was dis-honoured, that is, at New Delhi, Guwahati Court does not come in the picture at all. Further, it is alleged but not in the plaint that the notice of dishonour by one of the partners was received at Guwahati though other partners and the firm received the notice in New Delhi. The receipt of the notice of dishonour by one of the partners in my opinion cannot give jurisdiction to Gauhati court when otherwise all material facts have arisen outside and even the receipt of dishonour by the firm and other partners are outside. Receipt of a letter by a partner in Gauhati cannot be constituted as part of the cause of action. On the contrary, a Division Bench of Bombay High Court in (1875) I Bombay 23/43 has held that even a notice of dishonour will be a part of the cause of action and the court of the place wherefrom it is given will have jurisdiction.

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