Gopika Nina Pillai and ors. Vs. Media Asia Pvt. Ltd. and ors. - Court Judgment

Excerpt:
the case debated on leave to sue in relevance to territorial jurisdiction under section 20 of the civil procedure code, 1908 - there was no part of cause of action in delhi, also the necessary parties did not reside or work within territorial jurisdiction - hence the suit was ruled out as non maintainable - labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the army (1961), regulation. 173 claimant was on casual leave sustained injury which contributed to invalidation for military service claim for disability pension held, to claim disability pension by military personnel it requires to be established that the injury or fatality suffered by the concerned claimant bears a causal connection with military service. secondly, if this obligation exists so far as discharge from the armed force on the opinion of a medical board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on causal or annual leave at the time or at the place when and where the incident transpired. this is so because it is the causal connection which alone is relevant. fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the pension regulations to bring such travel within the entitlement for disability pension if an injury is sustained in this duration. fifthly, it cannot be said that each and every injury sustained while availing of casual leave would entitle the victim to claim disability pension. sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension. this is so regardless f whether the injury or death has occurred at the place of posting or during working hours. this is because attributability to military service is a factor which is required to be established. - 10. it is well settled that where the defendant neither resides nor carries 011 business nor any part of the cause of action arises within the local limits of the jurisdiction of the court, such court has no territorial jurisdiction to try the suit under section 20 of the code [see bahrain petroleum co. 1 and 2, obviously as principal debtors like defendants no.j.b. goel, j. 1. by this order is no. 2334/98 under section 20(b) of the c civil procedure (for short 'the code') is being disposed of. 2. plaintiffs have filed the present suit for recovery of pound sterling 1,59,127.79 (=rs. 1,03,78,341.46. plaintiff no. 1 is widow and plaintiff nos. 2 and 3 are two minor children of deceased k. rajan pillai (for short 'rajan pillai')- it is alleged that in january/february, 1995 deceased rajan pillai and defendant no. 2 who is editor-in-chief and managing director of defendant no. 1 had negotiations for incorporating a new company to take over the london office franchise of 'the asian age' newspaper published on behalf of defendant no. 1; rajan pillai was to invest certain amount and in pursuance thereof he vide letter dated 1.3.1995 (sent from singapore) had transferred from his bank account pound sterling 1,25,000 in the bank account of defendant no. 3 with barclays bank plc. london and similarly another sum of pound sterling 9924.55 was remitted to defendant no. 4 in his account with midland bank plc. london by means of a cheque on 24.3.1995. it appears that the matter did not proceed further as rajan pillai died in the meantime on 7.7.95. amounts having not been paid inspire of several letters, the plaintiffs have filed the present suit for its recovery with interest impleading, (1) media asia pvt. ltd. new delhi; (2) m.j. akbar, editor-in-chief of the asian age, new delhi; (3) mr. vijay sharma working for and on behalf of the asian age in middlesex, u.k.; and (4) mercury communication ltd. of uk. media asia europe ltd. of london imp leaded as defendant no. 5 has been given up on april 17, 1998. as defendants no. 3 and 4 are neither residing nor carrying on business within the jurisdiction of this court, the plaintiff has sought leave of the court under section 20(b) of the code to sue them here in this suit.3. i have heard learned counsel for the plaintiff. he has contended that defendants no. 3 and 4 though not necessary parties but their presence is required for more effective and complete decision of the suit and as such they are being imp leaded. he has further contended that as the controversy involved has arisen out of the same act or transaction defendants no. 3 and 4 could be imp leaded as provided under order 1, rules 3 to 7 of the code and as defendants no. 1 and 2 carry on business and also defendant no. 2 resides here, this court has jurisdiction to entertain and try this suit and in these circumstances grant of leave to sue defendants no. 3 and 4 here would be proper exercise of discretion. reliance has been placed on : air1963sc786 , bank of india v. m/s. mehta brothers and ors., : air1984delhi18 and suresh narain sinha v. akhauri balbhadra prasad & ors, : air1957pat256 . 4. the court gets jurisdiction under section 20 if, (1) the defendant resides or carries on business or works for gain within the local limits of its jurisdiction, or (2) the cause of action, wholly or in part arises within such local limits. if there are more defendants than one, some of whom reside or carry on business outside its jurisdiction then such party can be sued in that court with the leave of the court as required under clause (b) of section 20. 5. the principle behind the provision of clauses (a) and (b) of this section 20 is that the suit be instituted at a place where the defendant be able to defend the suit without undue trouble (union of india & anr. v. sh. ladulal jain, : [1964]3scr624 . in m/s. datsukh nathmal firm kamptee v. motilal balchand parwar & ors., air 1938 nag 262 it was held that such leave cannot be given arbitrarily and even when the defendants who reside outside jurisdiction do not appear the court is bound to consider their position before granting leave. this was followed in bank of india v. m/s. mehta brothers & ors., : air1984delhi18 . 6. in suresh narain sinha's case (supra) plaintiff had deposited some amounts with modern bank of india ltd. having its head office at dhaka in its branch at jehanabad on the alleged personal undertaking of defendants no. 1 to 3 of being liable for any loss that the plaintiff might sustain. defendant no. 1 was the manager of gaya branch, defendant no. 2 was the organiser and defendant no. 3 was a local director of the jehanabad branch and defendant no. 5 the bank with head office at dhaka. the amount not having been paid plaintiff filed suit for its recovery at jehanabad against defendants no. 1 to 5. defendant no. 1 alone contested the suit and denied that there was any guarantee given by him. suit was decreed by the trial court and appeal was dismissed. in second appeal, an objection was taken on behalf of defendant no. 5 bank before the high court that as there was no privity of contract with the bank, it could not be sued in jehanabad. it has however been found by the courts below that the bank by implication was a party to the contract between plaintiff and defendant no. 1 and defendant no. 1 had entered into contract of guarantee with the plaintiff. it was held that jehanabad court had jurisdiction against defendant no. 5 because cause of action had arisen at jehanabad in india where deposits were made for which defendants no. 1 to 3 were guarantors. reliance was placed on the decision of division bench of the allahabad high court in gaekwar baroda state railway v. sheikh habib ullah : air1934all740 where it was held that british courts have got jurisdiction against non-resident foreigners with regard to cause of action arising wholly or partly in british india and also to division bench judgments of the madras and bombay high courts in swaminathan chettiar v. e.n.k.r.m.v.r.m. somasundaram chettiar and another air 1938 mad 731 and chunnilal kasturchand v. dundappa damappa, : air1951bom190 where also similar view has been taken. 7. in bank of india v. mehta bros. & ors,, : air1984delhi18 plaintiff filed a suit in delhi high court for recovery of certain amount against six defendants, first being a partnership firm and defendants 2 to 5 its partners, all carrying on business within the jurisdiction of this court. sixth defendant, bank, a body corporate incorporated in west germany and having branch at bombay. leave was sought against defendant no. 6 under section 20(b). relying on, m/s. dalsukh nathmal firm kamptee v. motilal balchand parwar and ors. air 1938 nag 262, it was observed that leave cannot be given arbitrarily, especially when the defendant who is not residing within the territorial jurisdiction of the court happens to be the main defendant. however, in that case it was held that defendant no. 6 was not the main defendant, the relief claimed against it was in the alternative, defendants no. 1 to 5 appeared to be contesting defendants and the evidence to be produced was available mostly in delhi and leave was granted. decision in dalsukh nath mat's case air 1938 nag. 262 was distinguished on the ground that other defendants had admitted the claim of the plaintiff and defendant moti lal against whom leave to institute the suit was sought, was the only contesting defendant. with respect, it is not clear from this judgment bank of india (supra) as to what was the nature of cause of action and whether it arose against the defendant no. 6 also at delhi. the judgment is silent on this aspect. it could possibly be that the cause of action against defendant no. 6 wholly or in part had arisen at delhi; and that is why a suit against a foreigner could have been instituted in this court, on leave being granted under section 20(b) of the code, as held by the high courts of madras, bombay, allahabad and patna, as noticed above. 8. the legal position that emerges from the cases noticed above is that where the cause of action against a non-resident or foreigner not residing in india arose wholly or partly within the territorial jurisdiction of the indian court that court will have jurisdiction against such non-resident/foreigner under section 20 of the code. 9. these authorities have not considered the position as to whether the leave under section 20(b) of the code could be granted against a foreigner against whomno cause of action wholly or in part has arisen in india. this question was in issueand has been considered by a division bench of the allahabad high court in nandiraw v. gyan chand & ors., 1970 (2) all. 299. in that case, the plaintiff had soldcotton and also advanced cash to defendant no. 1 firm kundomal @ kundan pasalamchand, situated in tando adam, district nawab shah sindh, west pakistan ofwhich defendants 2 to 4 were partners. the dues having not been paid, a suit for itsrecovery was filed before civil judge, mathura where defendants 2 and 3 wereresiding and carrying on business. on application under section 20 (b) of the codeleave against the defendants 1 and 4, who where in pakistan, was granted by the trialcourt and the suit decreed. in appeal before the high court, it was observed asunder: 'an indian court under the code, can take cognizance of a suit ordinarily in respect of the cause of action which arises within its jurisdiction and can entertain the suit against defendants who reside or carry on the business at the time of the commencement of the suit within the local limits of its jurisdiction. section 20(b) cpc permits the grant of leave for the institution of a suit against a number of defendants if any of those defendants at the time of commencement of the suit actually and voluntarily resides or carries on business or personally works for gain within the local limits of its jurisdiction.'and it was held that as the code applies to the entire territory that falls within the jurisdiction of civil courts in india, persons residing or carrying on business any where in india, though not within the local limits of the jurisdiction of a particular court, may, if the cause of action arises within the territorial limits of that court's jurisdiction, be sued in that particular court. but if neither the cause of action arises for the suit within the country nor the defendant resides or carries on business within india, no suit against him can be instituted in india. reference was made to raja satru cherla rama bhadia raju v. maharaja of jaipur, 46 indian appeals, 151 (pc) where it was held that the 'courts' mean 'the courts to which the code applies'. and as defendants 1 and 4 were neither residing in india nor carrying on business or working for gain in india nor the cause of action had arisen in india, the suit against them could not be instituted in india, simply because two of the defendants were residing within the jurisdiction of that court. the leave granted by the trial court was held to be without authority of law. 10. it is well settled that where the defendant neither resides nor carries 011 business nor any part of the cause of action arises within the local limits of the jurisdiction of the court, such court has no territorial jurisdiction to try the suit under section 20 of the code [see bahrain petroleum co. ltd. v. p.j. pappu & another, : (1966)iillj144sc ]. 11. in view of this legal position jurisdiction of this court could be invoked against defendants no. 3 and 4 by resort to section 20(b) of the code if cause of action wholly or in part against them arose at delhi. but it is not the case pleaded. 12. for invoking the territorial jurisdiction of this court, in para 23 of the plaint, what is pleaded is : 'that this hon'ble court has the territorial jurisdiction to entertain, try and adjudicate the present suit because the defendant no. 1 carries on business from delhi and the defendant no. 2 personally works for gain in delhi.' 13. it is not the case that the cause of action at all has arisen at delhi. a decree is claimed against defendants no. 3 and 4 jointly and severally along with defendants no. 1 and 2, obviously as principal debtors like defendants no. 1 and 2. in that case, they are not only mere proper parties but are necessary parties. and the cause of action if at all, it has arisen, against them, it arose at u.k. where the money was paid to them and if payable by them it will be payable there. the cause of action against them in that case wholly arose in london, u.k. 14. coming to the question of convenience, evidence to prove their liability is also available in u.k. it will cause great hardship to them if they are sued here in delhi. in these circumstances, it will not be proper exercise of discretion to grant leave under section 20(b) of the code to sue them in this court. plaintiffs thus are not entitled to the leave sought. 15. leave is thus declined and the application is rejected.