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Petitioner: MESSRS S. M. HANIF (DACCA) LTD VS Respondent: THE CENTRAL BANK OF INDIA LTD.
P L D 1958 Dacca 398
P L D 1958 Dacca 398
Before Rahman, J
MESSRS S. M. HANIF (DACCA) LTD.
versus
THE CENTRAL BANK OF INDIA LTD.
In the matter of an application under clause 13 of the Letters Patent, decided on 7th March 1958.
Letters Patent for Calcutta High Court, 1865 (now applicable also to Dacca High Court), Clause 13‑Power of High Court to remove cases from subordinate Courts for trial in High Court should be exercised upon some principles‑Case pending in subordinate Court‑Important and difficult questions involved‑Removal ordered.
The High Court has ample powers under clause 13 of the Letters Patent to remove cases from any Court subject to its superintendence for trial in the High Court in the exercise of its Extraordinary Jurisdiction. This power should, however, be exercised upon some principles even where the' parties are agreed that the case may be so removed. Generally speaking some cogent ground for the desirability or necessity for the removal must be made out.
Where in a case pending before a subordinate Court it was pointed out by both the parties that important and difficult questions of private international law and of commercial law were involved and that the subordinate Court was not properly equipped for deciding such questions
Held, that for the purpose of justice this was a fit case which should have been removed for trial to the High Court in the exercise of its Extraordinary Jurisdiction.
In re : Kumar Rupendra Deb Raikut v. Ashrumati Debi and others 53 C W N 770 ; Sir Kameshwara Singh v. Province of Bihar A I R 1950 Pat. 179 and Harendra Lall Roy v. Sarvamangala Dabee and others I L R 24 Cal. 183 rel. J
Asrarul Hossain with Md. A. Rub.for Petitioner.
Sabitaranjan Pal with S. M. Amin Azhar for Opposite Party.
JUDGMENT
RAHMAN, J.‑This is an application under clause 13 of the Letters Patent, 1865, praying that a suit, being Title Suit No. 102 of 1955 in the Court of Second Subordinate Judge, Dacca, since transferred to the Court of the Fifth Subordinate Judge, Dacca, and pending in the said Court, be now transferred to this Court and tried here in the exercise of its Extraordinary Original Civil Jurisdiction.
The said suit was instituted for a declaration that a sum of Rs. 3,29,981 has been paid in excess in respect of two Letters of Credit, Nos. 1528 and 6530, opened in favour of Messrs. National Textiles, Stephen House, Dalhousie Square East, Calcutta, and Messrs Janak Limited. Mercantile Buildings, Lai Bazar, Calcutta, with the defendant, the Central Bank of India Limited. The said Letters of Credit were opened for the purchase of cotton piece goods to be shipped by the said National Textiles and Messrs. Janak Limited from Calcutta to Narayanganj.
The said Letters of Credit were opened in or about the month of August, 1949, to enable the plaintiff Company, Messrs. S. M. Hanif (Dacca) Limited, to effect payment for the said goods in Indian currency and the method upon which the said Letters of Credit were to be operated was that in respect of the goods purchased the vendor would in accordance with the usual mercan?tile practice draw negotiable bills of exchange retireable at sight and these were to be payable against complete sets of clean bills of lading.
The bills of exchange in respect of the said transactions were duly negotiated at Calcutta and arrived at Narayanganj for payment on the 16th September 1949. On the 17th September 1949; however, the Dominion of India (as it then was) devalued its currency but the Dominion of Pakistan (as it then was) did not so devalue its currency with the result that after such devalua?tion by India the rate of exchange was that a hundred Pakistan rupees were equivalent to Rs. 143/8/‑ Indian rupees: Immediately after such devaluation by India, the Dominion of Pakistan declared a holiday under tile Negotiable Instruments Act in Pakistan between the. 17th and the 20th of September, 1949, with the result that during these holidays no banking trans?actions could or did take place. As such, according. to the petitioner, the said bills of exchange, although they had arrived at Narayanganj on the, 16th September 1949, were not and could not be sighted until the 21st September 1949, and that was the due date of retirement of the said bills. The petitioner's conten?tion, therefore, is that since according to the accepted rules of private international law as well as municipal laws payments of foreign bills payable in a particular country have to be made in the legal tender of the country in which the payment is made calculated on the basis of the rate of exchange prevailing on that date, the bills in Indian currency were only payable in Pakistan currency at the devalued rate, namely, on the basis of Rs. 143/8/?Indian rupees to hundred Pakistani rupees.
The defendant in the said suit, namely, the Central Bank of India, Limited, however, contended that since the bills were payable at sight they were sighted on the day they were received at Narayanganj, namely, the 16th September 1949, and as such the bills were payable at the rate of exchange prevailing on the 16th September 1949, namely, hundred Indian rupees being equal to one hundred Pakistani rupees. The effect of declaration of the holidays, according to the Bank, was merely to suspend payments but not to alter the rate of exchange.
As the said goods were urgently required by the plaintiff petitioner before me, it was agreed between the plaintiff petitioner and the defendant opposite party that the bills would be retired and paid for at their face value at the par exchange rate but the amount in dispute would be kept by the Bank in a suspense account till the question as to the proper rate of exchange was settled by the State Bank of Pakistan. The State Bank of Pakistan, it is stated by the petitioner, on the 5th December 1952 expressed its opinion that the due date of the payment fell' on 21st September 1949, after devaluation. The plaintiff‑petitioner, therefore, demanded from the Bank the payment of the amount kept in the suspense account but the defendant opposite party, it is alleged, wrongfully refused to be bound by the opinion of the State Bank although it had agreed to be so bound by the said opinion of the State Bank. Hence the above‑mentioned suit was instituted by the plaintiff against the defendant.
It is urged by the petitioner that the said suit involves decisions of difficult questions of private international law and commercial law which are of great public importance. Further?more that the oral evidence in this case is purely of a formal nature. The case will depend largely on the interpretation of documents and decisions on points of law.
Upon these grounds, it is prayed that it would be in the interests of justice and the convenience of all parties concerned to have the suit removed to this Court and tried here in its Extraordinary Original Jurisdiction.
The defendant, the Central Bank of India Limited, has entered appearance in this application but has not filed any counter‑affidavit. The learned Advocate, appearing on behalf of the defendant opposite party, however, also joints in the prayer ?for removal of the said suit to this Court.
Now Clause 13 of the Letters Patent is in these terms :‑
" And we do further ordain that the said High Court of Judi?cature at Fort William in Bengal shall have power to remove and to try and determine, as a Court of Extraordinary Original Jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court."
It has been urged by the learned Advocates appearing on both sides that this Clause of the Letters Patent is applicable to this High Court and that it contemplates two alternative circumstances in which a suit may be so removed from any Court subject to the superintendence of this High Court, namely, (1) for purposes of justice or (2) on the agreement of the parties to that effect. Hence it is urged, since both parties are agreed that the suit should be so removed, I should order the removal of the said suit.
It will be observed that this Clause of the Letters Patent gives to this Court very wide powers and that this Court has ample powers to remove cases from any Court subject to its superintendence for trial in this Court in the exercise of its extraordinary jurisdiction. But nevertheless I venture to think that this power should be exercised upon some principles even where the parties' are agreed that the case may be so removed. As far as can be gathered from the trend of the decisions, it seems to me that generally speaking some cogent ground f or the desirability or necessity for the removal must be made out and it is not sufficient merely to say that the parties are agreed that the matter should be so removed for trial in this Court. It must not be forgotten that the plaintiff who is considered to be the dominus litis generally has the choice of the forum and, if he has once chosen his forum, we must take it that he has done so upon consideration of all circumstances and the forum so chosen by him is the one he considers to be the "forum convenience". Can the plaintiff then be allowed, at a later stage, to say that although I have chosen a particular forum I am now agreed with the defendant that the suit should be transferred for trial to the High Court. .
There are, however, at least two decisions, one of the Calcutta High. Court and one of the Patna High Court in which it appears that such applications made by the plaintiff in the suit were entertained. The first is in the case of In re : Kumar Rupendra Deb Raikut v. Ashrumati Debi and others (53 C W N 770). In this case, Banerjee, J., after an exhaustive consideration of the principles governing such applications acceded to the prayer of the plaintiff and after weighing every fact and considering every aspect of the case including the convenience and inconvenience of the parties came to the view that that application should be granted, for, it appeared to him "that; for more than the con?venience of parties and witnesses, more than anything that may happen at the trial, is the importance of securing the confidence of parties in the fairness and impartiality of the tribunal." The allegations which found favour with His Lordship and induced him to answer the question that he posed for himself, namely, as to why all of a sudden the plaintiff and/or his legal advisers changed their mind and sought to change the venue of the trial, in favour of the plaintiff, related to the want of impartiality of the Court. In the course of his judgment, however, His Lordship also adumbrated certain principles which should govern the exer?cise of the very wide discretion vested in the Court under clause 13 of the Letters Patent in the following terms
"The reported cases show that the Court has removed suits on the following grounds; (1) Balance of convenience in favour of trial in the High Court, when it is proved to the satisfaction of the Court that justice requires it. (2) When the plaintiff commences an action in a Court not on account of any legiti?mate advantage which a trial in that Court will give him, but for purposes entirely foreign to the legitimate purpose, (3)
When the Judge of the Court from which a transfer is sought is in a state of mind which makes it impossible that he should be able to deal with the case on the merits with impartiality or freedom from prejudice"
His Lordship furthermore considered that even these grounds were not exhaustive, for, the interests of justice referred to in the Clause meant anything which would promote or advance the cause of justice. Although the facts of that case are not very material for my present purposes, as they related mostly to the question that the plaintiff by reason of certain acts of the Court itself apprehended that he would not receive justice at the hands of that Court, but looking at the second principle enunciated by His Lordship, it seems to me that in the present case too it cannot really be said that the plaintiff in this case had any occasion to exercise any parti?cular choice as regards the forum at the stage he instituted the suit. The suit was instituted in the only Court in which it could be instituted. The plaintiff had no other alternative in the matter. Therefore, it cannot be said that he did so, because, he considered that to be the forum convenience. He really did so, for, he had no other alternative forum to choose.
The second case in question is the case of Sir Kameshwara Singh v. Province of Bihar (A I R 1950 Pat. 179), where Shearer, J., in exercise of the powers given under Clause 9 of the Letters Patent of the Patna High Court, corresponding to Clause 13 of our Letters Patent, transferred the suit from the Court of the Subordinate Judge, Darbhanga, to the High Court, for trial in its Extraordinary Original Civil Jurisdiction. The suit was one challenging the acquisition of zamindary by the Government of Bihar and in His Lordship's view, raised important questions of constitutional law which were also questions of great public importance and of some little difficulty. This decision goes very much in favour of the petitioner before me, for. on the principles adopted by Shearer, J., it seems that a case may be transferred for purposes of justice even when difficult questions of law are involved in the suit.
In coming to this conclusion, Shearer, J., himself relied upon a decision of the Calcutta High Court in the case of Harendra Lall Roy v. Sarvamangala Dabee and others (I L R 24 Cal. 183) in which Ameer Ali, J., also propounded the principles governing the exercise of the discretion given in Clause 13 in the following terms :‑
"There can be no doubt that this Court has ample power to remove cases from any Court subject to its superintendence for trial, in the exercise of its Extraordinary Jurisdiction, whenever it thinks fit to do so for purposes of justice ; that purpose is to be determined on various considerations, most of which are discussed in the cases to which reference has been made. For example, the desirability or necessity to exercise the jurisdiction may arise in consequence of the importance or difficulty of the questions involved, or it may arise in consequence of the balance of convenience or cheapness of the trial. I do not mean to say that these considerations are exhaustive for the exercise of the jurisdiction under Clause 13, but these are circumstances under which undoubtedly this Court has exercised the power."
It is now for me to see how far these principles which seem to be generally accepted are applicable in the present case. I have earlier mentioned that both sides claim that the question as to the currency in which a bill of exchange expressed to be payable in another currency would be payable is an important question of private international law of not a little difficulty. Again as to the exact legal effect of devaluation or non‑devaluation of a currency by one or other of the Governments of the countries in which the bill has been drawn or the bill is payable, as the case may be, is also not a question free from difficulty. Questions of com?mercial law and particularly those relating to negotiable instru?ments are also involved in this case. It is urged by both parties that they cannot have the trial in the subordinate Courts with the fullest convenience and that the said Courts are not properly equipped for deciding such questions.
Having regard to the fact that this is the first application of its kind that has been made invoking the discretion of this Court under Clause 13 of the Letters Patent, I have given this matter m utmost consideration, particularly, as there is no appeal from my order and, having duly considered all these aspects and the principles referred to earlier, I have come to the conclusion that for the purposes of justice this is a fit case which should be removed for trial to this Court in the exercise of its Extraordinary Jurisdiction, 1 have in addition been influenced in no small measure in coming to this conclusion by the assurance given both in the petition as well as by the learned Advocates appearing before me with regard to the formal nature of the evidence that may have to be adduced in this case and that the questions will be mainly questions of interpretation of documents and law.
In these circumstances, I direct that the suit be transferred to this Court to be tried and determined in its Extraordinary Civil Jurisdiction, but subject to this condition that the petitioner will in the first instance deposit in this Court a sum of Rs. 1,500 and will in any event bear the additional costs that will be incurred in this Court in taking shorthand notes of the depositions of witnesses and for supplying copies thereof. In addition to this, the costs of interpretation will also have to be met by the petitioner.
This order will be drawn up after the petitioner has deposited the said amount in this Court. Liberty is given to either party to mention for fixing of a date of hearing after the records have arrived in this Court.
Costs of this application will be costs in the cause.
Z. A. S.???????????
Case transferred.