JYOTI BHUSAN MUKHERJEE Vs. EASTERN TEA COMPANY LTD

JUDGEMENT

(1.) This application has been taken out by the Eastern Tea Co. Ltd. and its directors, the defendants Nos. 1, 6 and 9 for an order that the leave granted under Clause 12 of the Letters Patent be revoked and for stay of all further proceedings taken with this suit. It is the petitioner's case that the plaintiff has filed this suit against the defendants including the petitioners praying inter alia for a declaration that the investments made and/or maintained by the defendant company is in excess of the maximum provided under Section 372 of the Companies Act, 1956 hence those investments are illegal, wrongful, ultra vires the act, declaration that the defendants are not entitled to exercise their voting rights in respect of the said shares, direction for appointment of a receiver and also sale by the receiver of the investments, mandatory injunction directing the defendants for disposal of the said investments in accordance with the orders to be passed by this Court and for other consequential reliefs. Before filing this suit, the plaintiff obtained leave under Clause 12 of the Letters Patent. From the perusal of the plaint and the prayers framed thereunder it would appear that no relief has been claimed against the defendant No. 12 the Chartered Accountant and the plaint also does not disclose any cause of action against the defendants Nos. 2 to 11. The plaintiff has obtained leave under Clause 12 of the Letters Patent on the basis of the averments made in paragraphs 15 and 19 of the plaint which read as follows:

(2.) In para. 27 it has been pleaded that the part of the cause of action has arisen within the jurisdiction of this Court as pleaded in those two paragraphs being paras. 15 and 19 respectively. It would appear from those averments that the plaintiff has alleged that it has received a copy of the balance-sheet within the jurisdiction of this Court. Secondly, it has been alleged that Mr. L. K. Khettry appearing on behalf of a person named Mr. Sukumar Bose wanted certain clarifica lions of the balance-sheet dated 31st Mar., 1977 from the defendant No. 1 Messrs, Eastern Tea Co. Ltd. at Jalpaiguri in answer to that a letter was sent to Mr. L. K. Khettry at No. 10 Old Post Office Street. Calcutta within the jurisdiction of this Court. It would appear from the cause title that the present suit has been filed not by Sukumar Bose but by Jyoti Bhusan Mukherjee. Hence so far Jyoti Bhusan Mukherjee is concerned the only fact which is relevant is the receipt of the balance-sheet within the jurisdiction of this Court. It would appear from the pleadings as also from the prayers that Jyoti Bhushan Mukherjee has not challenged the balance-sheet nor has he claimed any relief in the nature of cancellation, setting aside or in any other way making the said balance-sheet ineffective. Although there are averments that the auditors have deliberately made misrepresentations and misleading statements to the share-holders and also to the plaintiff which tantamounts to fraud on the shareholders but no relief has been claimed against the auditors. In none of the prayers starting from (a) to (i) the said balance-sheet has not been challenged, nor any relief has been claimed in respect of the said balance-sheet. It is the positive case of the petitioner that the receipt of the balance-sheet is no part of the plaintiff cause of action, nor the letter received by Mr. L. K. Khettry on behalf of Mr. Sukumar Bose. Secondly, it is the petitioner's case that considering the balance of convenience this Court should revoke the leave granted in favour of the plaintiff in as much as the defendant company is situated outside the jurisdiction of this Court and all the offices, documents, books of accounts are also lying outside of this Court at the registered office of the defendant No. 1 which is situated at Jalpaiguri outside the jurisdiction of this Court. Considering that the plaintiff has challenged the various investments made by the defendant company starting from the year 1964, although it has been submitted by the counsel on behalf of the plaintiff that for the purpose of proving his claim in the suit he will be required only to prove the balance-sheet and nothing else but for ihe purpose of proving the investments from the year 1964 the defendant No. 1 will have to produce all the books of accounts, papers and documents to show what investments have been made by the defendant No. 1 as some of the investments have also been made prior to 1960 before the amendment of the section came into effect. Hence the defendant will have to bring down enormous documents papers and also number of officers of the company who are all residing outside the jurisdiction of this Court. Hence considering the balance of convenience this Court should revoke the leave granted in favour of the plaintiff.

(3.) It would appear that in the cause title it has been stated that the defendant No. 1 has its registered office at Jalpaiguri outside the aforesaid jurisdiction but it has a subordinate office at Nilambar, 28B, Shakespeare Sarani, Calcutta within the jurisdiction of this Court. It is the peti-tioner's case that it does not have a sub-office but it has only a liaison office where-from very little work is discharged and or carried out by the company. Moreover there are no averments in the body of the plaint that the defendant No. 1 has a sub-office in Calcutta within the jurisdiction of this Court. From the language of the Clause 12 it would appear that the requirement for invoking jurisdiction of this Court is that the defendant must reside or carry on business within the jurisdiction of this Court in order to give jurisdiction to this Court to entertain, try or decide the suit. Hence from the language used in the cause title it would not appear that the defendant company carries on business at 28B, Shakespeare Sarani within the jurisdiction of this Court hence on that ground also leave should be refused.