HARNATHRAI BINJRAJ Vs. CHURAMONI SHAH

JUDGEMENT

(1.) This is an application to revoke leave granted under Clause 12 of the Charter in a case where the plaint disclosed or purported to disclose a part of the cause of action in Calcutta. Standing counsel for the applicant himself described it as a novel application. That in itself does not make it any the worse. In point of fact, this is the first application of the kind that I have known. The plaint is to recover the balance of an account due from the defendant Churamoni Shaha to Baijnath Jograj amounting to Rs. 11,762; both these persons or firms being residents of Bhagalpur and carrying on business at Bhagalpur and nowhere else. This debt was assigned by Baijnath Jograj, the creditor, to the present plaintiffs, Harnathrai Binjraj, on 17 August 1932, the suit being brought on 23 August 1932. The summons in the suit was served on 19 September 1932. Considerable correspondence took place between the attorneys for the parties between the date of the service of the summons and November 1932. This correspondence is annexed to a second affidavit on be half of the respondents to this application, the plaintiffs, which affidavit is objected to on the ground that it was filed so late as I think, January of this year. That, however, is the applicant's own fault, because the application having been made in December of 1932 it was not brought on until the other day. In those circumstances I allowed this second affidavit to be used. People who have Chamber applications and allow them to mature for several months, must take the risk of further affidavits being filed.

(2.) It is said that the members of the plaintiff firm, the assignees, are also residents of Bhagalpur. That is stated in the affidavit in reply on behalf of the applicant, and although it has not been replied to, for the purposes of this application I shall assume that to be the fact. On the other hand, it is not denied that the plaintiff firm does not carry on business in Calcutta. The argument in support of the application may be summarised as follows: That under Clause 12 of the Letters Patent the Court has discretion to grant or refuse leave in a case where part of the cause of action arises in Calcutta, and reference is made to a case in Seshagiri Row V/s. Oskur Jung (1907) 30 Mad 438. In that case, although it was not necessary for the decision of the Madras High Court, since it did not appear that any part of the cause of action had arisen in Madras, it was held that the question of convenience and prejudice was a matter which could and ought to be considered in granting or refusing leave. As regards the facts, it is suggested (and not without some reason) that this assignment was made not only in anticipation of the insolvency of the assignor firm which was imminent and has, I understand, supervened, but for the purposes of creating jurisdiction in Calcutta so as to put pressure on the defendant firm by compelling the latter to contest the suit in Calcutta where they have no business house or connexion. The latter point seems to me the more relevant to the application.

(3.) The first aspect of the matter is purely a matter, in my opinion, which must be gone into in the suit, and it is not possible for me in granting or refusing leave to investigate matters which must be and can only be investigated on evidence, although there may be grounds of suspicion. The second aspect of the matter is one which appeals to me far more, especially having regard to the fact that I have neither at the Bar or on the Bench come across where assignments have been made away from the scene of action in order to get an advantage over the defendants. It has always been assumed however that in a suit by an assignee the assignment is a part of the cause of action, and upon that cause of action leave, as far as I know, has invariably been granted, For practical purposes it is impossible before the hearing of the suit to decide whether an assignment is or is not bona fide. I do not think that the Court would be justified, on a mere suspicion that the assignor might not have acted in the ordinary way of business, in depriving the plaintiff of the right to bring a suit in the place where the assignment was made, which right has always been recognised by this Court.