KALOORAM AGARWALLA Vs. JONISTHA LAL CHAKRABARTY

JUDGEMENT

(1.) This is a suit by the assignee and endorsee of a certain promissory note. In the plaint it is stated that on 2 June, 1931 a sum of Rs. 1,729-13-3 was due and owing from the defendants to one Gazadhar Marwari and that the defendants agreed to pay interest on the sum at the rate of Rs. 1-8-0 per cent per mensem. As security for payment of the sum they executed on that date a promissory note in Gazadar Marwari's favour. On 1 June 1934, Gazadar Marwari in Calcutta assigned the debt and endorsed the promissory note in favour of the plaintiff for valuable consideration. There is said to be due and owing at the time of suit a sum of Rs. 2,673-1-6. The note in question is signed by defendant 1 purporting to sign on his own behalf and on behalf of defendant 2 who is his brother. The suit was instituted on 1st June 1934. In the plaint the defendants are described as both residing at Anara in the district of Manbhum, and it is common ground that the promissory note was executed at that place. The defendants have both filed written statements in which they have put forward various defences on the merits. They say that the execution of the promissory note was obtained by fraud, by misrepresentation and by coercion, and defendant 2 also denies the authority of defendant 1 to execute the promissory note on his behalf. Para Section 4 and 5 of defendant 1's written statement are as follows: Para. 4: This defendant states that this Court has no jurisdiction to try this suit as no part of the cause of action as against him arose within the said jurisdiction. Para. 5: In the alternative, this defendant states that in any event the assignment is mala fide and leave under Clause 12, even if it has been granted, should be rescinded.

(2.) In defendant 2's written statement the assignment in favour of the plaintiff is described as being fraudulent and collusive, and defendant 2 also states that no part of the cause of action as against him arose within the jurisdiction. At the trial both defendants have raised the point that leave under Clause 12 of the Charter should not have been granted and ought to be revoked. Now, it is well established that the assignment in favour of the plaintiff must be regarded as part of the plaintiff's cause of action, even although it is a transaction of which the defendants had no notice and with which they had nothing to do. It is therefore clear that the Court had jurisdiction to grant leave under Clause 12 if the case was in other respects a fit one. In my opinion, on the facts as set out in the plaint, leave ought not to have been granted. The sum at stake is not a large ono nor prima facie is there likely to be raised any issue which the tribunal within whose local jurisdiction the defendants reside is not competent to try satisfactorily. The assignment was admittedly executed on the last day before the expiry of the period of limitation and one cannot help feeling a suspicion that it was collusive in the sense that it was executed mainly for the purpose of giving this Court jurisdiction which it would not otherwise possess. The defendants are described in the plaint as landholders residing in the district of Manbhum and in my opinion it is no hardship on a person who sees fit voluntarily to take such an assignment as the present to be compelled to institute any proceedings which may be necessary to realise his debt in the Courts which would have, jurisdiction apart from the assignment. On the merits I think that the case is not one on which leave should have been granted. Various arguments have been advanced by the learned standing counsel on behalf of the plaintiff. He points out that under the Civil Procedure Code a suit can be instituted in any Court within whose jurisdiction any part of the cause of action arose, and that there is no question of the granting or refusal of leave. This is true, but I do not think that the fact that in a moffusil Court there is no way of preventing unnecessary hardship in a case like this is a reason for allowing the discretionary jurisdiction of this Court to be used to inflict a similar hardship.

(3.) Next it is said that the leave having in fact been granted it must be assumed that the learned Judge granting it has exercised his discretion, and that I cannot or ought not to interfere with such exercise. With regard to this the difficulty is that my mind refuses to make an assumption which I know is contrary to facts. I believe that the practice of all Judges dealing with interlocutory matters on the original side is the same. The Master examines the plaint, and if there is an allegation in it showing that part of the cause of action arises within the jurisdiction, the Master endorses the, plaint "Leave granted under Clause 12," and submits it to a Judge for his signature.. The Judge then signs the plaint as a matter of course and leaves it to the defendant to take such steps as he may be advised. This system may not be wholly satisfactory, but it is not easy to think of a better one because at that stage, whatever is done must in the nature of things be done ex parte. I therefore feel no difficulty in reviewing (I use the term in its popular sense) the decision, if it can be called a decision, of Remfry, J., in signing the endorsement of the Master and granting leave.