KURIAN KURIAN Vs. LAZAR PAUL

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the District Judge of Trichur dated 3rd Kumbhom 1124, dismissing Original Suit No. 17 of 1121. On 23.2.1115 the defendant, a subject of the then State of Cochin, executed in favour of the plaintiff, a subject of the then State of Travancore, a promissory note for the sum of Rs. 3138-8-0 at Kottayam (Travancore). On foot of the said promissory note the plaintiff instituted a suit in O.S. No. 102 of 1115 before the District Court at Kottayam, on 18.6.1118. After due issue of summons, the defendant remaining ex parte, that court passed a decree in terms of the plaint on 30.11.1115. Along with the institution of the suit the plaintiff attempted to attach before judgment 200 shares the defendant held in a limited Company known as the Tropical Plantations Limited which had its Head Office at Kottayam. The attempt was unsuccessful. The defendant manoeuvered to transfer the shares before the order of attachment could reach him or the Company. Evidently the plaintiff instituted the suit in the District Court at Kottayam thinking that he could realise his amounts by proceeding against the defendants shares in the said limited Company. But foiled in that attempt he instituted the present suit before the Trichur District Court, within whose jurisdiction the defendant resides. But this was done only on 20.2.1121 close within six years of the execution of the promissory note, but well within six years of the passing of the judgment by the Kottayam District Court. The suit is based on the judgment of the Kottayam District Court which for present purposes has to be treated as a foreign court and alternatively on the primary cause of action viz., the promissory note.

(2.) The defendant contended inter alia that the judgment of the Kottayam District Court was a nullity in that Court had no jurisdiction to pass a decree against a non resident foreigner who has neither appeared in the suit nor otherwise submitted to the jurisdiction of that Court and that the suit on the original cause of action was barred by time as the law applicable was the law of the place where action was brought which admits of only a three years period to bring a suit on a promissory note. Both these contentions found favour with the learned Judge in the Court below and he accordingly dismissed the suit. The plaintiff had brought this appeal against the learned Judges judgment and decree.

(3.) The first question is whether the learned Judges view that the judgment of the Kottayam District Court cannot be enforced in Cochin either by a suit or by processes in execution is correct. Admittedly the defendant was a subject of the Cochin State. He had no residence at Kottayam nor was he even temporarily present there while the action was brought. He had no place of business there either. He did not enter appearance in the case nor had he contracted to submit himself to the jurisdiction of the Kottayam Court. The plaintiff, however, attempted to show that the judgment sued upon was valid and binding upon the defendant. The facts relied upon in that behalf were that the defendant was not only a shareholder of the Tropical Plantations Limited, but one of its Promoters, and a Director thereof that his Directorship continued even after the suit was filed and that in connection with that Office he had of necessity to go over to and either stay at Kottayam occasionally. The defendant was once having a partnership business with the plaintiff at Kottayam, but the execution of the promissory note in question marked the termination of that business. As the promissory note was executed at Kottayam the cause of action for a suit on the same arose there and the District Court there had jurisdiction to entertain the suit and pass a decree which was good for domestic or internal purposes. It is however difficult to appreciate how an occasional visit to that place by the defendant or a stay there by him for one or two days at a time, can confer jurisdiction on that Court to pass a decree against him which would be good for extra territorial or international purpose. The argument of the learned Advocate for the appellant was that by virtue of the defendants Directorship of the Tropical Plantations Limited which necessarily took him to Kottayam occasionally, he must be regarded as constructively resident there and also as having impliedly bound himself to submit to the jurisdiction of the Court under whose protection the Company was functioning. That these are considerations which cannot invest the Kottayam District Court with jurisdiction to pass a binding decree against the defendant, a non resident foreigner, we shall presently show by reference to decided cases, of which the facts are even stranger, but before we attempt to do that it is useful to recall the general principles recognised as investing a foreign court with jurisdiction in an international sense with respect to personal actions.