INDIAN OVERSEAS BANK Vs. BAGRIAN SHOES LTD

JUDGEMENT

(1.) THIS petition has been filed by the plaintiff-petitioner for transfer of the case pending in the Court of Sub Judge Ist Class, Malerkotla, on the ground that both the plaintiff as well as the defendants reside and work for gain at Chandigarh. All the documents and evidence to be adduced by the parties is available at Chandigarh. Even the record of the bank which is quite voluminous is at the bead office at Chandigarh. Since the factory of the defendants is closed for a number of years, the balance of convenience of both the parties is that the suit be transferred from the court at Malerkotla to the Court of competent jurisdiction at Chandigarh.

(2.) PURSUANT to the notice issued to the respondents, they have put in appearance and respondent Nos. 1 and 4 have filed reply to the same challenging the various contentions made in the application for getting the case transferred to the Court of competent jurisdiction at Chandigarh-Respondent No. 1, in addition to reply on merits, has raised preliminary objection to the effect that the suit has been filed seeking sale of the mortgaged property, immovable property belonging to the defendants-which are situate within the territorial jurisdiction of the Court of Senior Sub Judge at Malerkotla. As the suit of this nature is to be filed where the suit property is situate and mortgaged, such a suit cannot be transferred in view of Sections 16 and 17 of the Code of Civil Procedure. Even otherwise; the case does not fall within the purview of Section 24 of the Code of Civil Procedure and, lastly, that the suit was filed sometime in the month of October, 1991, pursuance to which the parties have put in appearance, engaged senior counsels to contest the suit and incurred other expenses and thus there is no ground for transferring the case from the Court at Malerkotla.

(3.) THE learned counsel for the petitioner in support of his case laid much emphasis on the ground that the bank has a registered office at Chandigarh ; that various documents executed by the defendants at the time of grant of loan too were executed at Chandigarh, that both the parties reside and work at Chandigarh. In addition to these, the counsel highlighted that evidence in the case has yet to be recorded, so keeping in view the fact that voluminous record is to be produced by the plaintiff for which various functionaries will have to be examined, trial at Chandigarh would cut down the avoidable expenses of various witnesses who have to be taken from Chandigarh to Malerkotla and back coupled with voluminous original record. Even otherwise, the respondents are not liable to suffer on any count. In support of his contention, the counsel relied upon the judgment in case reported as Sri Pamban Kumaragurubara Swami Temple v. K. Subramanya Mudaliar, A. I. R. 1977 Mad. 27 Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati v. Ramji Tripathi and Ors. , A. I. R. 1979 M. P. 50 and Jyotsna Raje v. Jagpal Singh, A. I. R. 1961 Pb. 560. Counsels for the respondents, however, on the other hand, have streneously opposed the pleas raised by the counsel for the petitioner. Mr. S. C. Nagpal, counsel for respondent No. 1, specifically highlighted the fact that the suit in the present instance was filed at Malerkotla wherein parties put in appearance in pursuance to the notice of the Court as well as engaged senior counsel to conduct proceedings on their behalf. This way the defendants have already incurred huge expenditure by engaging counsel/senior counsels. Not only this, the respondents ordinarily reside at village Bagrian where the factory is situate. The whole record of the defendants is at the factory premises and in case this prayer for transfer is accepted, it would put the respondents to great inconvenience and expenditure. In support of his above contention, the counsel relied upon the judgment in ease reported as Oriental Bank of Commerce Ltd. v. Pashok Tea Co. Ltd and Ors. , A. I. R. 1975 Cal. 476.