Oriental Bank of Commerce Vs. Santosh Kumar Agarwal - Court Judgment

Pranab Kumar Chattopadhyay, J.

1. This appeal has been preferred at the instance of the defendant-Oriental Bank of Commerce from the judgment and decree dated 18th January, 2001 passed in C.S. No. 216 of 1996.

2. The claim of the plaintiff in the suit is based on several Fixed Deposits mentioned in the Schedule being Annexure 'A' to the plaint. All the aforesaid Fixed Deposits were admittedly made jointly by the plaintiff and the pro forma defendant at the Khidderpore branch of the Oriental Bank of Commerce, which is outside the Ordinary Original Civil Jurisdiction of this Hon'ble Court.

3. The judgment and decree passed by the learned Single Judge was assailed by the defendant-appellant bank on various grounds mentioned in the Memorandum of Appeal. The learned Senior Counsel representing the appellant-bank concentrated the argument mainly on the ground of jurisdiction as according to the appellant, suit filed by the plaintiff is not at all maintainable in the Ordinary Original Civil Jurisdiction of this Hon'ble Court since according to the said appellant, no part of the cause of action has arisen within the Ordinary Original Civil Jurisdiction of this Hon'ble Court. Since the point of jurisdiction was strongly urged on behalf of the appellant amongst other issues mentioned in the Memorandum of Appeal, we are of the opinion that the said issue relating to the jurisdiction of this Court to entertain the suit filed by the plaintiff should be decided first before deciding any other issue involved in this appeal.

4. It has been specifically stated by the plaintiff in the plaint that even after maturity of the aforesaid Fixed Deposits, the defendant bank wrongfully and illegally withheld the payment against the said Fixed Deposits. The plaintiff, therefore, filed the suit in this Court in its Ordinary Original Civil Jurisdiction for recovery of the moneys that were claimed to have been deposited by the said plaintiff with the defendant No. 2, Oriental Bank of Commerce, at its Khidderpore Branch.

5. The cause of action as pleaded in the plaint filed by the plaintiff is based on the following acts or factors:

a) Payment of moneys to the Oriental Bank of Commerce for the purpose of making the Fixed Deposits;

b) Refusal by the bank to pay the money to the concerned parties on maturity of the Fixed Deposits; and

c) Exercise of lien by the bank.

6. According to the learned Advocate representing the appellant, each one of the aforesaid acts, namely, payment of moneys, refusal to pay the money to the concerned parties on maturity of the Fixed Deposits by the Oriental Bank of Commerce and exercise of lien by the said bank took place at the Khidderpore branch of the bank, which is outside the Ordinary Original Civil Jurisdiction of this Hon'ble Court.

7. The plaintiff herein has admittedly filed the suit impleading the Oriental Bank of Commerce as defendant No. 1 in the following manner:

1. Oriental Bank of Commerce, a body corporate having its Regional Office at No. 107/1, Park Street, Calcutta-700 016, within the jurisdiction of this Hon'ble Court and carrying on business from the said Regional Office..Defendant.

8. The defendant No. 2 is the pro forma defendant and no relief has been claimed against the said pro forma defendant. The defendant No. 1 contested the suit by filing written statement. It was specifically urged on behalf of the defendant bank before the trial Court that this Court has no jurisdiction to entertain, try and determine the suit since no part of the cause of action has arisen within the Ordinary Original Civil Jurisdiction of this Hon'ble Court. It has been specifically urged on behalf of the appellant that the cause of action in the suit is for non-payment of money allegedly due and payable from the Khidderpore branch of the Oriental Bank of Commerce, which is outside the Ordinary Original Civil Jurisdiction of this Hon'ble Court.

9. Mr. Hirak Mitra, learned Senior Counsel representing the appellant submits that the officers of the Regional office have or had no nexus in connection with the cause of action and in fact all the decisions with regard to the non-payment of the amount in respect of the Fixed Deposits mentioned in the plaint were taken by the head-office of the bank at Delhi and pursuant to the instruction of the head-office, no payment was released against the aforesaid Fixed Deposits. Mr. Mitra further submits that the learned Single Judge wrongly observed that the witness on behalf of the bank admitted that the decision not to pay against the Fixed Deposit receipts was taken by the Regional Office and endorsement to such effect was made in the statement of accounts.

10. Therefore, it is now to be examined whether the Regional office of the bank at Park Street had any role to play in the matter of non-payment and /or withholding of the payment to the plaintiff on maturity of the Fixed Deposits as mentioned in the plaint.

11. Mr. Ajoy Chatterjee, learned Counsel representing the plaintiff submits that the payment against the Fixed Deposits was withheld at the instance of the Regional office and, therefore, the said Regional Office has a nexus and connection with the cause of action. The learned Single Judge while considering the aforesaid issue also observed that the documents were in possession of the defendant bank in its Regional office since the Assistant General Manager of the said bank affirmed the affidavit of documents from its Regional office. The learned Single Judge also observed that all the correspondences were exchanged between the plaintiff and bank at the Regional office and the defendant bank proceeded on the basis of the instruction of the said Regional office. The relevant portions from the judgment under appeal passed by the learned Single Judge are quoted hereunder:.It is interesting that the affidavit of documents were affirmed and filed by one, Sri. D.N. Ganguly, Assistant General Manager of the Bank from its regional office. Therefore, unless and until the defendant possess the documents in its regional office there is hardly any scope of filing such affidavit of documents. Moreover, all the correspondences were exchanged in between the Plaintiff and the bank at the regional office and defendant proceeded on the basis of the instruction of the said regional office In the present suit it is evident that the witness on behalf of the bank admitted that decision not to pay against fixed deposit receipts was given by the regional office and the endorsement to such effect was made in the statement of accounts (Exhibit-1)....

12. On examination of the materials on record we find that there has been no exchange of correspondences with the Regional office of the appellant-bank. Furthermore, the plaintiff also admitted that the relevant information was given by the Delhi Office of the bank over telephone. Mr. Mitra, learned Counsel representing the appellant has drawn our attention to Question No. 32 of the Examination-In-Chief of Lalit Arora, an employee of the defendant bank which are quoted hereunder:

Q. 32. Wherefrom they have given the information to C.B.I.?

Ans. From Head Office, Delhi.

13. The learned Counsel of the appellant has also drawn our attention to the depositions of the plaintiff as specifically recorded in Question Nos. 296, 297 and 298 of Examination-in-Chief of the said plaintiff. The same are set out hereunder:

Q. 296. You have stated in the plaint as well as in some of the letters which were disclosed in this proceeding that you have been intimated by the Regional Office of the Bank as well as Head Office that the payments cannot be made to you by reasons of the C.B.I. enquiry am I right?

Ans. Yes.

Q. 297. There is no such communication to you either from the head office or Regional Office to that effect?

Ans. I personally visited the Regional Office and met A.G.M. He made a STD Call to the Delhi Office and from there he intimated me that the information from Delhi office was that this enquiry has been done.

Q. 298. My question to you was whether there was any written communication from the head office or from the regional office?

Ans. I have written to them but there was no answer back from them.

14. Furthermore, the written statement was signed and the affidavit of documents was affirmed by Sri Dwarik Ganguly from the Regional office at Park Street after filing of the suit and the same are, therefore, post accrual of the cause of action. The cause of action in the instant suit cannot arise on the basis of verification of a written statement or the affirmation of an affidavit of documents by an officer of the appellant bank. In our opinion, the same are totally irrelevant to the cause of action in respect of the suit.

15. The learned Single Judge recorded in the judgment under appeal that the witness on behalf of the bank admitted that the decision not to pay against the Fixed Deposit receipts was given by the Regional Office but, in our opinion, the same is not based on correct appreciation of evidence on record.

16. The bank had called two of its officers as witnesses namely, Salim All and Lalit Arora. Both the officers were posted at the branch office of the bank at Khidderpore at the relevant point of time. The sum and substance of their evidence is that as a result of routine inspection by some bank officials from Delhi, various irregularities were detected regarding the transaction with the Khidderpore branch of the bank. Following detection of such irregularities, the matter was considered by the Head office at Delhi that payment in respect of the concerned Fixed Deposits would not be made. The implementation of such decision of the Head Office took place at the Khidderpore branch where the money was deposited. In any event, it cannot be the concern of the plaintiff as to where the decision was taken regarding non-payment. The plaintiff should be concerned about the implementation of the decision for non-payment which undisputedly, took place at the Khidderpore branch of the bank outside the Ordinary Original Civil Jurisdiction of this Court.

17. On examination of the evidence on record, we find that none of the witnesses ever admitted that the decision not to pay was taken at the Regional Office. This is evident from the deposition of both Lalit Arora and Salim Ali. We are, therefore, unable to accept the finding of the learned Single Judge that all steps were taken by the Regional office with regard to the nonpayment or non-encashment of the Fixed Deposits in question by the Khidderpore branch.

18. In any event, the plaintiff in his deposition also admitted that the information was given by the Delhi office as specifically recorded in the Examination-in-Chief of the said plaintiff in answer to Question No. 298, which has already been set out hereinabove. Therefore, we find that the decision was taken by the Delhi office of the bank and was implemented at the Khidderpore branch. Furthermore, the making of the decision with regard to non-payment of the Fixed Deposits in question has not been made a part of the cause of action as the same has not been alleged in the plaint. The cause of action made out in the plaint arises from refusal to pay any amount in respect of the Fixed Deposits by the Khidderpore branch of the bank which took place out side the Ordinary Original Civil Jurisdiction of this Court.

19. eferring to Clause 12 of the Letters Patent, Mr. Chatterjee argued that since the defendant bank carries on business within the Ordinary Original Civil Jurisdiction of this Court, the suit filed against the said defendant bank is unquestionably maintainable, irrespective of whether any part of the cause of action of the suit has or has not arisen within the jurisdiction and, therefore, no leave under Clause 12 of the Letters Patent is also necessary. Mr. Chatterjee further submits that as per Section 6 of the Banking Regulation Act, 1949, a bank is deemed to carry on its business from such premises where any of the business enumerated therein is transacted. Mr. Chatterjee also submits that the Regional Office of the defendant bank at 107/1, Park Street, Kolkata-700 006 is within the Ordinary Original Civil Jurisdiction of this Court where demands for payment against the Fixed Deposit receipts (hereinafter referred to as F. D. Rs.) were made by the plaintiff and wherefrom instruction for adjustment and non-payment were issued as a result whereof payments were refused by the Khidderpore branch of the bank to the plaintiff.

20. he learned Counsel for the respondent/plaintiff further submits that the said Regional Office of the bank at Park Street in effect controls the functioning of the Khidderpore branch. Mr. Chatterjee referred to and relied on the following decisions in support of the contention that the suit filed against the defendant bank is perfectly valid and maintainable since the defendant bank carries on business within the Ordinary Original Civil Jurisdiction of this Court.

1) : AIR1999SC2352 (Food Corporation of India v. Evdomen Corporation) Paragraphs 4, 6 and 8)

2) 2002 (1) CLJ 366 (DB) (Steel Authority of India Ltd. v. Dinesh Jaiswal) (Paragraphs 1, 2, 5, 6, 8, 9 and 10)

21. It has also been submitted on behalf of the plaintiff that when a bank wrongly refuses to pay, it can be sued at Head-office, Branch office or wherever it is found to carry on business. According to Mr. Chatterjee, learned Counsel of the plaintiff, no payment was made against the F.D. Rs. to the plaintiff/respondent No. 1 due to the wrongful instructions issued by the Regional office of the appellant bank at 107/1, Park Street, Kolkata-700 006, which is within the Ordinary Original Civil Jurisdiction of this Court. Mr. Chatterjee relied on the following decisions in support of his aforesaid contentions:

1) : [1955]2SCR402 (Delhi Cloth & General Mills Co. Ltd. v. Harnam Singh and Ors.) (Paragraphs 43a-45)

2) : [1982]1SCR16 (Agencia Commercial International Ltd. and Ors. v. Custodian of the Branches of Banco Nacional Ultramarino) (Paragraph 14)

3) : AIR1956Cal33 (Hansraj Bajaj v. The Indian Overseas Bank Ltd.) (Paragraphs 3, 12, 15 & 16)

22. It has been argued by the learned Counsel of the plaintiff/respondent No. 1 that it was enough that the bank carried on business within the Ordinary Original Civil Jurisdiction of this Court and there was no need to show that at least a part of the cause of action has arisen within.

In the light of the aforesaid arguments let us now examine whether the bank actually carries on business from its Regional office and/or the functions of the Khidderpore branch of the bank are controlled by the said Regional office.

23. It has been consistently held both by the Hon'ble Supreme Court and this Hon'ble Court that each branch of a bank is a separate entity. The mere fact that the Regional office is situated within does not give jurisdiction to this Hon'ble Court. The suit could have been instituted either in the Court within whose jurisdiction the Khidderpore branch is situated, i.e. the District Court at Alipore or at Delhi. Furthermore, no part of the cause of action, far less the whole of the cause of action, arose within the jurisdiction of this Hon'ble Court. The argument that the Regional office had some nexus is also irrelevant; more so because it was never the plaintiffs case that a part of the cause of action arose within and no leave under Clause 12 of the Letters Patent was even sought for. The decisions relied upon by the appellant in the case of Delhi Cloth & General Mills Co. Ltd. v. Harnam Singh and Ors. reported in : [1955]2SCR402 and in the case of Agencia Commercial International Ltd. and Ors. v. Custodian of the Branches of Banco Nacional Ultramarino reported in : [1982]1SCR16 clearly support the above proposition. In the case of Delhi Cloth & General Mills Co. Ltd. (supra), it was, inter alia, held that the situs of the debt is at the branch/place where the account is kept and where the demand must be made.

24. Hon'ble Supreme Court in the case of Agencia Commercial International Ltd. and Ors. : [1982]1SCR16 (supra) followed the earlier decision in the case of Delhi Cloth & General Mills Co. Ltd. (supra) and held as hereunder (Paras 14):

14. Now it is indisputable as a general proposition that a body corporate and its branches are not distinct and separate entities from each other, that the branches constitute mere components through which the corporate entity expresses itself and that all transactions entered into ostensibly with the branches are in legal reality transactions with the corporate body, and it is with the corporate body that a person must deal directly. But it is also now generally agreed that in the case of a Bank which operates through its Branches, the Branches are regarded for many purposes as separate and distinct entities from the Head Office and from each other. This Court observed in Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh : [1955]2SCR402 :

In banking transactions the following rules are now settled : (1) the obligation of a bank to pay the cheques of a customer rests primarily on the branch at which he keeps his account and the bank can rightly refuse to cash a cheque at any other branch : Rex v. Lovitt (1912) AC 212 at p. 219, Bank of Travancore v. Dhirit Ram 69 Ind. App. 1, 8 and 9 : AIR 1942 PC 6 and New York Life Insurance Co. v. Public Trustee (1924) 2 Ch 101, 110 at p. 117, a customer must make a demand for payment at the branch where his current account is kept before he has a cause of action against the bank : Joachimson v. Swiss Bank Corporation (1921) 3 KB 110 quoted with approval by Lord Reid in Arab Bank Ltd. v. Barclays Bank 1954 AC 495, 531. The rule is the same whether the account is a current account or whether it is a case of deposit. The last two cases refer to a current account; the Privy Council case Bank of Travancore v. Dhirit Ram (supra) was a case of deposit. Either way, there must be a demand by the customer at the branch where the current account is kept, or where the deposit is made and kept, before the bank need pay, and for these reasons the English Courts hold that the situs of the debts is at the place where the current account is kept and where the demand must be made.

It was explained further that if the bank wrongly refused to pay when a demand was made at the proper place and time, then it could be sued at its head office as well as at its branch office, but the reason was that 'the action is then, not on the debt, but on the breach of the contract to pay at the place specified in the agreement', and reference was made to Warrington, L.J. at p. 116 and Atkin, L.J. at page 121 of New York Life Insurance Co. v. Public Trustee (1924) 2 Ch 101. That is the position in regard to banking law and practice, and it is apparently in that light that the Regulation has been framed.

25. The learned Counsel of the plaintiff/respondent No. 1 also cited the decisions reported in : AIR1960Cal331 (Jnan Chand Chug v. Jugal Kishore Agarwal and Ors.) and : AIR1956Cal33 (Hansraj Bajaj v. The Indian Overseas Bank Ltd.) but none of these decisions are applicable in the facts of the present case. In fact, in the case of The Indian Overseas Bank Ltd. : AIR1956Cal33 (supra), where incidentally the bank had its Head Office in Calcutta, it has been laid down that when a bank has branches In different places, each branch is considered as an entity in itself and a suit in respect of dealings with the branch should be filed in the Court within whose jurisdiction the branch has its office and not where the Head Office is situated.

26. Like the Khidderpore branch of the appellant bank entire transactions out of which the dispute arose relates to the Penang branch of the aforesaid Indian Overseas Bank. The observations of P.B. Mukherji, J. while dealing with the point of jurisdiction raised in the aforesaid case are very much relevant in the facts of the present case and the same are set out hereunder:

15...Here in this case the entire transaction out of which the dispute arose concerns the Penang branch of the defendant bank. The relevant accounts were kept in the Penang branch. In this case a draft was issued by the Penang branch. It was also issued in dollars and not in rupees. In fact, the Head Office here in Calcutta has nothing to do with this transaction at all.

Nor do the books of the Head Office deal with these transactions in any manner whatever. That is why I am of the opinion that in this case the jurisdiction claimed on the ground that the Head Office is here in Calcutta within the jurisdiction is an overstretched jurisdiction although within the technical limits of the law.

27. Mr. Chatterjee, learned Counsel of the plaintiff/respondent No. 1 also argued that it is not a case of lack of jurisdiction but at best of improper exercise of jurisdiction and hence, there can be waiver of territorial jurisdiction and the decree is not a nullity. It has also been argued on behalf of the plaintiff/respondent No. 1 that since the appellant bank has not made out a case that there has been a consequent failure of justice the appellant cannot take objection to the place of suing in view of Section 21 of the Code of Civil Procedure. Mr. Chatterjee referred to and relied on the decisions reported in : [1982]1SCR183 (Koopilan Uneen's daughter Pathumma and Ors. v. Koopilan Uneen's son Kuntalan Kutty dead by LRs. and Ors.) : AIR1993SC2094 (R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd.) and an unreported decision of this Hon'ble Court.

28. The aforesaid decisions, in our opinion, can be of no help to the plaintiff as in none of the aforesaid cases, the Court was required to go into the question of whether Section 21 of the Code of Civil Procedure applies to a High Court in the exercise of Original Civil Jurisdiction. The unreported decision is, however, concerned with a suit for land and not in connection with any transaction with bank.

It is well settled that Section 21 of the Code of Civil Procedure does not apply to the High Court in the exercise of Original Civil Jurisdiction. This is clear from the decisions reported in 40 CWN 65 (Maharaja Bahadur of Hathwa v. H.E. Beal) and : AIR1929Cal358 (Manindra Chandra Nandy v. Lalmohun Roy and Ors.)

29. In the case of Maharaja Bahadur of Hathwa v. H.E. Beal reported in 40 CWN 65, Lord Derbyshire, C.J., speaking for the Division Bench of this Hon'ble Court specifically held:.It must be noted at this stage that Clause 12 gives this Court its jurisdiction. The jurisdiction of the Original Side of this Court is not given to it by Section 20 of the Code of Civil Procedure. Section 20, C.P.C., does not apply to the Original Side of the Chartered High Court, (see Section 120 of the Code of Civil Procedure). If this Court has Jurisdiction to entertain the suit, there is no need to invoke the aid of Section 21 of the Code of Civil Procedure. If this Court has no jurisdiction to entertain this suit, then the Judge in the Court of first instance has no jurisdiction to hear the case and this Court sitting as an Appellate Court has no jurisdiction to entertain the appeal. That being so, this Court has no jurisdiction to consider the matter and has no jurisdiction to apply Section 21 of the Code of Civil Procedure, and it seems to me, therefore, that Section 21 of the Code can have no application in a case of this kind which is brought on the Original Side of this Court....

30. In the case of Manindra Chandra Nandy v. Lalmohun Roy and Ors. reported in : AIR1929Cal358 , Lord Rankin, C.J., speaking for the Division Bench of this Hon'ble Court specifically held:

When we are considering whether Section 21 applies to the High Court in the exercise of its original civil jurisdiction the argument is naturally pressed before us that if Sections 16, 17 and 20 are expressly excepted from a bundle of provisions dealing with the place of suing it is hard to resist the conclusion that Section 21 is not excepted from application to the Original Side....

31. It was also argued on behalf of the plaintiff/respondent No. 1 that the rule that debtor should seek his creditor should be applied in the instant case. Mr. Chatterjee, learned Counsel of the plaintiff/respondent No. 1 submits that the suit filed by the said plaintiff is the original suit by a debtor against the creditor and the bank being the debtor should seek the plaintiff, its creditor within the Ordinary Original Civil Jurisdiction of this Hon'ble Court for payment. Mr. Chatterjee referring to the decision of the Hon'ble Supreme Court in the case of Shanti Prasad Jain v. The Director of Enforcement Foreign Exchange Regulation Act and Anr. reported in : [1963]2SCR297 submits that the branch of a bank cannot claim any special status.

32. We are unable to accept the aforesaid argument advanced on behalf of the learned Counsel of the plaintiff following the decisions of the Hon'ble Supreme Court in the case of Delhi Cloth & General Mills Co. Ltd. : [1955]2SCR402 (supra) and in the case of Agenda Commercial International Ltd. and Ors. : [1982]1SCR16 (supra). We also hold that the case relating to banking transactions forms an exception to the aforesaid rule.

33. Mr. Chatterjee, learned Counsel of the plaintiff/respondent No. 1 also raised the point of estoppel and submitted that the appellant bank should not be permitted to argue the question of lack of jurisdiction of this Hon'ble Court in view of the fact that the said appellant bank did not make any application for dismissal of the suit on the ground of lack of jurisdiction of this Hon'ble Court. Mr. Chatterjee further submits that the appellant bank opposed the application filed on behalf of the plaintiff/respondent No. 1 for summary judgment as also the application for payment of admitted sum and thereby submitted to the jurisdiction of this Hon'ble Court. Mr. Chatterjee also submits that the appellant bank also applied before this Hon'ble Court at the time of hearing of the appeal for production of three cheques, appointment of handwriting experts, examination of the witnesses of the plaintiff and defendant and also handwriting experts and thus, took steps to secure its interest.

34 Mr. Chatterjee referred to and relied on the decision of the Supreme Court in the case of Chittaranjan Mukherjee v. Barhoo Mahto reported in : AIR1953SC472 .

35. In the present case, however, there is no question of acquiescence on the part of the appellant bank and the advantage, if any, has been taken by the plaintiff. From the records we are satisfied that in the present case, the appellant bank seriously pressed the objection with regard to absence of territorial jurisdiction in order to entertain, try and determine the suit in the trial Court and admittedly before us also. In such circumstances and in the absence of applicability of Section 21 of the Code of Civil Procedure it will not be proper to prevent the appellant bank from rearguing the point of jurisdiction over again.

36. For the reasons discussed hereinbefore, we are of the opinion that in this case the jurisdiction claimed on the ground that the Regional office of the appellant bank is within the Ordinary Original Civil Jurisdiction of this Court cannot be accepted as we hold that the cause of action as pleaded in the plaint did not arise within the Ordinary Original Civil Jurisdiction of this Court since refusal to pay the money to the concerned parties including the plaintiff on maturity of the Fixed Deposits by the Oriental Bank of Commerce and exercise of lien by the said bank took place at the Khidderpore branch of the bank which is outside the Ordinary Original Civil Jurisdiction of this Hon'ble Court. If any decision or instruction was at all given to the said Khidderpore branch of the bank then the same was given by the head-office and not by the Regional office.

37. The learned Single Judge unfortunately did not consider the objection raised by the appellant bank to the territorial jurisdiction of this Hon'ble Court to entertain, try and determine the suit upon proper consideration of the materials on record.

38. On examination of the evidence on record we are satisfied that this Court has no jurisdiction over the subject matter of the suit as no part of the cause of action in respect of the suit filed by the plaintiff has arisen within the Original Side Jurisdiction of this Hon'ble Court. In our view, the plaint should have been returned on the ground of inherent lack of jurisdiction of this Hon'ble Court to entertain, try and determine the suit filed by the plaintiff within the Ordinary Original Civil Jurisdiction of this Hon'ble Court.

39. As we have held that there is inherent lack of jurisdiction of this Hon'ble Court to entertain, try and determine the suit filed by the plaintiff, the decree under challenge is a nullity. The decree passed by the learned Single Judge, therefore, should be set aside and plaint should be returned for presentation before the competent Court.

40. In the case of Kiran Singh v. Chaman Paswan reported in : [1955]1SCR117 , Hon'ble Supreme Court held:

6. ...It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of the parties....

41. In the aforesaid circumstances, we set aside the Judgment and decree passed by the learned Single Judge on the ground of lack of Jurisdiction of trial Court to entertain and decide the suit. We do not, therefore, enter into the merits of the decision of the learned trial Court on other issues. We also direct return of the plaint to the learned Advocate-on-record of plaintiff/respondent for the purpose of presentation of the same to the proper Court.

42. In the facts and circumstances of the present case, there will be, however, no order as to costs.

Let xerox copies of this judgment duly countersigned by the Assistant Registrar of this Court be supplied to the parties herein on undertaking to apply for the certified copy of the same immediately.

Tapan Mukherjee, J.

43. I agree.