IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 OP(C).NO. 400 OF 2010(O) --------------------------------------- OS.560/2007 OF I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: ------------------- ING VYSYA BANK LTD., REPRESENTED BY THE MANAGER CONSUMER ASSETS. RETAIL BANKING DIVISION, M.G.ROAD, RAVIPURAM, KOCHI- 682016. BY ADV. SRI.K.P.SREEKUMAR SRI.R.S.KALKURA SRI.HARISH GOPINATH SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): ----------------------- 1. S.DILEEP KUMAR, S/O.SADASIVAN, RESIDING AT KOTTAPURATH PUTHEN VEEDU, KOTTAPURAM, PULAMON P.O., NEAR NIZZA AUDITORIUM, KOTTARAKKARA-691 531. 2. BINDHU K.M., W/O.DILEEPKUMAR, KOTTAPURATHU PUTHEN VEEDU, KOTTAPURAM, PULAMON P.O., NEAR NIZZA AUDITORIUM, KOTTARAKKARA-691 531. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2010 ALONG WITH O.P(C) NO.401 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- (O.P(C) NO.400 OF 2010) PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 RUE COPY OF THE PLAINT IN O.S. NO.560 OF 2004 O THE FIRST ADDITIONAL SUBORDINATE JUDGE'S COURT, ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN EXHIBIT P1 SUIT. EXHIBIT P3 TRUE COPY OF I.A. NO.2165 OF 2010 AND THE AFFIDAVIT ACCOMPANYING. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.3.2010 RETURNING THE PLAINT. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== O.P(C) Nos.400 & 401 of 2010 ==================================== Dated this the 03rd day of November, 2010 J U D G M E N T Though notice to the respondents has not been served, as per order of this Court on October 22, 2010 notice of the petitions have been served on counsel for respondents appearing in the trial court and memo to that effect has also been filed. That is sufficient service of notice on respondents in view of Rule 59 of the High Court Rules. I have heard learned counsel for petitioner. 2. These petitions arise from separate orders passed by the learned Sub Judge, Ernakulam on I.A. No.2165 of 2010 in O.S. No.560 of 2007 and I.A. No.2164 of 2010 in O.S. No.418 of 2006, respectively. Both the suits are filed by the petitioner seeking recovery of money from the respondents. Common case of petitioner is that respondents availed loan from it for purchase of vehicle and defaulted payment of installments. Respondents while admitting the transaction in their written statement disputed liability to pay interest as claimed by petitioner. While so petitioner thought that though entire loan transaction was O.P(C) Nos.400 & 401 of 2010 -: 2 :- processed by petitioner at Ernakulam, there is no documentary evidence to prove the same and hence prayed that petitioner be permitted to withdraw the suits under Order VII Rule 10 of the Code of Civil Procedure (for short, “the Code”) and permit it to file the suit in the court within the territorial jurisdiction of which, respondents are residing. Those applications were allowed by the learned Sub Judge and the plaints were returned to the petitioner but without fixing any time for re-presentation in the proper courts. When the matter came up for hearing learned counsel submitted that the order as a whole is bad in so far as it is not a case where the learned Sub Judge did not have jurisdiction to entertain the suits but a case where petitioner found it difficult to prove that transactions occurred within the territorial limits of the court of learned Additional Sub Judge, Ernakulam. Learned counsel would contend that in such a situation the order retuning the plaints itself is bad in law and requested this Court to interfere with the orders in toto. It is also contended that return of plaints by the learned Sub Judge for the reason that it had no pecuniary jurisdiction is illegal. 3. I have gone through the copy of plaint in both the cases and the applications for return of the plaint. It is seen that O.P(C) Nos.400 & 401 of 2010 -: 3 :- according to the petitioner, entire transaction took place at Ernakulam and the cause of action for the suits also arose within the territorial limits of the jurisdiction of learned Sub Judge, Ernakulam. 4. Principle of law applicable in this country is that in the absence of specific direction as to the place of payment the debtor should seek the creditor (See S.PC. Engineering Co. Union of India – AIR 1966 Calcutta 259, Ramasubramoniam v. Ranganathan - 1978 KLT 906, Nagesh Sales Corpn. v. M/s. Kerala Soaps & Oils Ltd. - 1993 [2] KLJ 1039 and Jose Paul v. Jose – AIR 2002 Kerala 397). Hence even in the absence of express direction as to place of payment, the court at the place where the branch of petitioner where transactions took place is situate, has got jurisdiction to entertain the suits. Going by the averments in the plaints also court of learned Sub Judge, Ernakulam has jurisdiction to entertain the suits. It is a different matter whether petitioner will be able to produce materials to prove that transactions took place at its branch at Ernakulam. That inability if any, is no ground to return the plaints as if the learned Sub Judge had no jurisdiction to entertain the suits. Hence the orders returning the plaints for presentation in proper O.P(C) Nos.400 & 401 of 2010 -: 4 :- courts are bad, liable to be set aside and I do so. If petitioner for any other reason wants transfer of the cases to the courts within whose territorial jurisdiction respondents are residing, it will be open to it to move appropriate application before the appropriate forum as provided under law if it is entitled to that course. Resultantly, these petitions are allowed. Impugned orders are set aside. Learned Sub Judge, Ernakulam is directed to take back the plaints and dispose of the same in accordance with law. THOMAS P. JOSEPH, JUDGE. vsv