IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.01.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.71 of 2007 The Commissioner Tamil Nadu Raffle Government of Tamil Nadu No.735, Anna Salai Chennai-2. .. Appellant/Plaintiff Vs S.Rani .. Respondent/Defendant Prayer: This Appeal Suit has been preferred under Section 96 C.P.C., praying to set aside the decree passed in O.S.No.5163 of 2004, dated 31.01.2006 on the file of the Additional District Court cum Fast Track Court-V, Chennai. For Appellant : Mr.V.Ravi Special Govt. Pleader (AS) For Respondent : JUDGMENT This appeal has been arising out of the judgment and decree dated 31.01.2006 made in O.S.No.5163 of 2004, on the file of the Additional District Court cum Fast Track Court-V, Chennai. 2.The averments made in the plaint are as follows: (i)The defendant is a bulk Agent in Madurai, for sale of lotteries for the year 2000-2001. She has produced 26 numbers of Bank guarantees for Rs.2,09,00,000/-. As on 25.04.2003, as the Agent was a defaulter, a sum of Rs.2,06,32,500/- was invoked from 26 numbers of Bank guarantees submitted by the defendant. The amount was credited to Government account on 21.05.2003. For the belated settlement of Bank guarantees, interest had to be collected from the defendant and hence the Bank guarantee to the value of Rs.8,00,000/-, which had validity upto 20.12.2003, was kept in the plaintiff's office. In the meantime, it was found that the defendant is still due to Government a sum of Rs.6,19,319/- being the printing and composing charges for the larger size tickets and lifted by the defendant pertaining to 19th Deepavali Bumper Draw held on 21.11.2002, 11th Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Supreme Draw held on 18.02.2002, 12th Tamil Nadu Supreme Draw held on 30.03.2002. (ii) The defendant has been addressed to credit the money to Government on 16.07.2003, 05.11.2003, 01.01.2004 and 09.01.2004. There was no response. So the Bank authorities at Madurai were addressed by the plaintiff vide letter dated 16.12.2003 and 18.12.2003 to invoke the Bank guarantee and make payment of Rs.6,19,319/-, the Bank refused to pay the amount by invoking the Bank guarantee before the expiry of the Bank guarantee on 20.12.2003. (iii) The defendant has paid to Government a sum of Rs.85,000/- on 05.03.2004 and agreeing to pay the balance due amount of Rs.5,34,319/- within three months. The defendant has informed that the time could not be granted and the defendant has to pay the amount on or before 31.03.2004. The defendant has again been reminded on 05.04.2004. Yet the defendant has not paid the amount till date. Hence the plaintiff is constrained to come forward with the suit for recovery of a sum of Rs.5,34,319/- together with interest at the rate of 24% per annum and prayed for decree. 3.The gist and essence of the written statement filed by the defendant is as follows:- (i) The Commissioner, Tamil Nadu Raffle, is the plaintiff, who filed the suit is improper. This Court has no territorial jurisdiction to entertain the suit, since the defendant is residing and having his office at Madurai. The cause of action had completely arisen at Madurai. (ii) The suit is barred by limitation. The defendant has furnished a Bank guarantee to the tune of Rs.2,09,00,000/- and a sum of Rs.2,06,32,500/- was credited to the account of the Government on 21.05.2003 by invoking 26 numbers of Bank guarantees, which was given as security by the defendant. (iii)The defendant was a sole agent for Tamil Nadu Raffles Department. The Government of Tamil Nadu had issued an ordinance under G.O.Ms.No.20 dated 08.01.2003, banning all lotteries, organised by the State of Tamil Nadu and also the other states, with immediate effect and thereby freezing the trade in relation to lotteries throughout the state. (iv)The High Court of Madras was upheld the validity of the said ordinance, through its order dated 24.01.2003, but permitted the sale and draw in the case of lotteries for which sales tax had already been paid to the appropriate authority and for which an appropriate certificate had been issued by the authority. So the draw of lotteries on various dates from 06.02.2003 to 16.02.2003 were conducted. https://hcservices.ecourts.gov.in/hcservices/ (v)As the sale and draw of lotteries were banned from 09.01.2003 to 24.01.2003, the general public had developed a fear on the trade of lotteries and sales touched on unprecedented law during that period. It was also not possible to sell the lottery tickets, even after the order of this Court dated 24.01.2003 permitting the sale of lotteries for which sales tax have already been paid, in spite of the wide publicity purported to be given for the sale. (vi) In the meanwhile, the defendant sent representations, dated 16.01.2003, 28.01.2003, 01.02.2003 and 04.02.2003 to the Director of Tamil Nadu Raffles, informing about the situation that had arisen and the stagnation of sale of lottery tickets and the crisis that the defendant was put in, reminding him of the fact that she had never approached the Court and had never wanted to oppose the Government in any form, and also requested the Director to take back the lifted lottery tickets in the possession of the defendant and refund the security obtained from the defendant in the form of the Bank guarantees. The representations submitted by the defendant in this regard also proved to be useless and in vain. (vii) The defendant has preferred W.P.No.4124 of 2003, which was taken up along with other similarly placed writ petitions and a common order was passed in them, thereby re-scheduling the dates of the draws for the lotteries. The said re-scheduling also did not help this defendant, as the defendant was not able to sell even a single lottery ticket due to the fear among the general public for the purchase of lotteries. (viii) The defendant had incurred heavy losses, upto the tune of Rs.1.5 crores due to the freezing of the sale of lotteries, as there were no takers for them. So the defendant could not pay to the plaintiff, the value for the tickets lifted by the defendant. A sum of Rs.8,00,000/- had been collected by the Government towards interest on 14.12.2003, which is highly illegal and arbitrary, as the contract was not performed and the transaction completed, as it was only the Government which stood to benefit by the recovery of the amounts equivalent to the value of the tickets. (ix) The defendant had appropriately replied to the letters from the Government. The defendant had no idea as to what had actually transpired between the plaintiff and the Bank authorities at Madurai and has no knowledge in relation to the contention in para-4 of the plaint. (x) The defendant has not issued any letter dated 04.03.2004, admitting the liability of the defendant to pay a sum of Rs.5,34,319/- within three months from 04.03.2004. https://hcservices.ecourts.gov.in/hcservices/ (xi) The total value of the lottery tickets were computed at Rs.2,06,32,500/-, which was credited to the Government account on 21.05.2003 and the interest thereupon was credited on 14.12.2003. The Government had, even according to them, tried to invoke the Bank guarantee on 16.12.2003 in order to recover the sum of Rs.6,19,319/-, which was allegedly rejected by the Bank. Hence the defendant prayed for the dismissal of the suit. 4.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed seven issues and considering the oral evidence of P.W.1 and D.W.1 and Exs.A1 to A15 and dismissed the suit stating that this Court has no jurisdiction to entertain the suit. Against which, the present appeal has been preferred by the appellant/plaintiff. 5.After hearing the arguments of the learned counsel for the appellant, the following points for determination are framed: 1.Whether the trial Court is correct in held that the Court is not having jurisdiction to entertain the suit? 2.Whether the trial Court is correct in held that the appellant/plaintiff is not entitled the suit claim? 3.Whether the judgment and decree of the trial Court are sustainable? 4.To what relief, the appellant is entitled to? 6.Point No.1: (i) The learned Special Government Pleader appearing for the appellant/plaintiff submitted that the appellant/plaintiff has filed the suit for recovery of printing and composing charges for printing extra large lottery tickets for the sale of lotteries in the year 2000-2001, on the request of the respondent/defendant, who is the sole agent for selling the lottery tickets. Since the respondent/defendant herein is a sole agent for selling lottery tickets, she has furnished 26 numbers of Bank guarantees for a sum of Rs.2,09,00,000/-. But during the tenure, G.O.Ms.No.20 has been passed by the Government on 08.01.2003 to ban all the lotteries organised by the State of Tamil Nadu and also other states with immediate effect. After that, the respondent/defendant has filed W.P.No.4124 of 2003 and as per the direction of this Court dated 24.01.2003, she was permitted to sell and draw in the case of lotteries for which sales tax had already been paid to the appropriate authority. In pursuant to the order of this Court, the Raffles Department fixed the time for the draw of lotteries on various dates from 06.02.2003 to 16.02.2003. The appellant herein has invoked the Bank guarantees to the tune of Rs.2,06,32,500/-. The https://hcservices.ecourts.gov.in/hcservices/ respondent/defendant is liable to pay a sum of Rs.6,19,319/- being the printing and composing charges for large size lottery tickets and lifted by the respondent/defendant pertaining to 19th Deepavali Bumper Draw held on 21.11.2002, 11th Tamil Nadu Supreme Draw held on 18.02.2002, 12th Tamil Nadu Supreme Draw held on 30.03.2002 and Tamil Nadu 4,5,6,12,15 and 20th Draws held during on 20.01.2003 to 26.01.2003. (ii) He further submitted that he has sent the letters for invoking other Bank guarantees with Tamil Nadu Mercantile Bank and also he sent a notice to the respondent/defendant. In pursuance of the notice, the respondent/defendant herself has paid a sum of Rs.85,000/- by way of demand draft along with letter dated 04.03.2004 in Ex.A12. In Ex.A12, she sought time for settling the balance amount of Rs.5,34,319/- and the appellant/plaintiff herein has written a reply letter dated 08.03.2004 in Ex.A13. Since the respondent/defendant has not paid the balance amount in time, he issued a legal notice dated 08.06.2004 through his counsel under Ex.A15 and thereafter, come forward with the suit. (iii) Even though the respondent/defendant has raised so many defence that the suit is barred by limitation and this Court has no jurisdiction to entertain the suit and also the plaintiff has not proved that he is entitled the amount, the trial Court after considering the oral and documentary evidence, has dismissed the suit stating that the appellant/plaintiff has not proved that the respondent/defendant agreed to pay the additional expenses towards printing and composing of extra large lottery tickets towards the draw held in the absence of any concluded contract and also the trial Court has no jurisdiction for entertaining the suit. But other issues were answered in favour of the appellant/plaintiff. Against which, the appellant/plaintiff has come forward with this first appeal. (iv)The learned Special Government Pleader appearing for the appellant/plaintiff mainly focussing upon the jurisdiction and stating that the appellant/plaintiff is having his office at Chennai and the respondent/defendant is having her branch office at Chennai, besides this, the cause of action arose at Chennai. Hence this Court has jurisdiction to entertain the suit. To substantiate the same, he also relied upon some decisions. (v)He further submitted that there is an agreement between both the parties that any dispute in respect of their contract will arise, it is subject to only the Courts at Chennai. Hence this Court has jurisdiction to entertain the same. (vi) The second limb of argument advanced by the learned Special Government Pleader for the appellant/plaintiff is that the respondent/defendant has issued a letter dated 04.03.2004 in Ex.A12 and made a payment of Rs.85,000/- by way of demand draft in I.C.I.C.I https://hcservices.ecourts.gov.in/hcservices/ Bank, bearing No.115041 dated 04.03.2004. In that letter, she also sought for three months time to pay the balance amount of Rs.5,34,319/-. Hence she has estopped that she has not liable to pay the balance amount (i.e.) the suit claim. (vii) Admittedly, the respondent/defendant was served with notice, but she has not appeared neither through her counsel nor in person and advanced arguments. Now this Court has to decide on the basis of the arguments advanced by the learned Special Government Pleader Mr.V.Ravi appearing for the appellant/plaintiff. (viii) It is true that the respondent/defendant is residing at Madurai and the letters marked by the appellant/plaintiff were also addressed to Madurai address. Admittedly, no acknowledgement card has been signed by the respondent/defendant and on her behalf, somebody has signed the acknowledgement card. But at the time of oral evidence, when D.W.1-Rani was in witness box, her candid admission is that she is having her office only at Madurai and she has no branch office. She is having her shop at Triplicane High Road. In Ex.A12, it was mentioned that a Branch office at 270, Triplicane High Road, Chennai. But admittedly, all the correspondence were sent to Madurai office and no communication has been sent to Branch office at Triplicane. (ix) At this juncture, it is appropriate to incorporate Section 20 of C.P.C., which is as follows: "Section-20:Other suits to be instituted where defendants resides or cause of action arises: Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or https://hcservices.ecourts.gov.in/hcservices/ (c) the cause of action, wholly or in part, arises." (x)Admittedly, the respondent/defendant is having her business and residence at Madurai. At this juncture, it is appropriate to consider the arguments advanced by the learned Special Government Pleader for the appellant/plaintiff that there was a contract between both the parties and in that contract, the jurisdiction is conferred to the Courts at Chennai, so the trial Court has having territorial jurisdiction. But the appellant/plaintiff has advanced his argument on air. He has not pleaded the same in his plaint and he has not produced the document, which contains the terms of the contract between him and the respondent/defendant before this Court. In such circumstances, the argument advanced by the learned Special Government Pleader for the appellant/plaintiff that as per the contract, the jurisdiction has been conferred only the Courts at Chennai, does not merit acceptance. (xi) He relied upon the decisions reported in AIR 1977 ANDHRA PRADESH 164(1) (Vasireddi Seetharamaiah V. Srirama Motor Finance Corporation, Kakinada and another), in paras-51 to 54, it is held as follows: "51. A contention was urged, though feebly, that the lower Court had no territorial jurisdiction to entertain the suit. It is submitted that both the defendants were residents of Visakapatnam that the agreements were signed by the defendants 1 and 2 at Visakapatnam and therefore, the cause of action arose in Visakapatnam and not at Kakinada. 52.But this contention is clearly untenable. Exs.A-1 and A-2 and all the forms show that they were signed at Kakinada in @ page-AP172 the plaintiff's Office. The chassis for the lorry was purchased from Sri Ramadas Motor Transport (PVT) Limited, Kakinada. Condition No.12 of the Hire Purchase Agreement (Ex.A-2) provides that the courts at Kakinada alone and no other courts whatsoever could have jurisdiction to try all suits in respect of any claim or disputes arising out of under the said agreement. 53.It was sought to be contended that the word 'Kakinada" was inserted later without the knowledge of the defendants and that their signatures were obtained on the blank forms. 54.We do not find that the evidence on record is sufficient to substantiate this plea. The parties are governed by the terms of the written contract which https://hcservices.ecourts.gov.in/hcservices/ clearly provides for filing of suits in the courts at Kakinada. Therefore the contention that the lower court had no territorial jurisdiction to try the suit, is devoid of any merit." (xii) In AIR 2006 PUNJAB AND HARYANA 71 in (Indian Oil Corporation Ltd., V. Uppal Engineering (P) Ltd & Anr.), in para-5, it is held as follows: "5. .. .. It is not in dispute that in a dispute arising between the parties more than one Court may have jurisdiction. If there is no agreement between the parties in this regard all the aforesaid Courts would have jurisdiction to entertain the controversy between the parties and in such a situation, the aggrieved party may approach any one of those Courts. However, by their voluntary act and agreement the parties can always agree that any one of the aforesaid Courts would have the exclusive jurisdiction in the matter. However, the parties by their consent cannot confer jurisdiction on any such Court which does not have the jurisdiction in the matter at all. But if there are more than one Court having the concurrent jurisdiction to deal with the controversy, then the parties can agree that only one of the Courts would have jurisdiction. .. .." (xiii) In AIR (2006) 1 Supreme Court Cases 206 in (Rite Approach Group Ltd., Vs. Rosoboronexport), in para-20, it is held as follows: "20.In view of the specific provision specifying the jurisdiction of the court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on a particular court to decide the matter then it automatically ousts the jurisdiction of the other court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that Arbitral Tribunal shall be final and obligatory for both the parties." The above decisions are not applicable to the facts of the present case, since the appellant/plaintiff has not pleaded that as per the agreement between both the parties, the jurisdiction has been conferred to the Courts at Chennai. Furthermore, he has not filed any https://hcservices.ecourts.gov.in/hcservices/ scrap of paper to show that there was an agreement, conferring the jurisdiction to the Courts at Chennai. So I am of the opinion that the above citations are not applicable to the facts of the present case, since in those citations, there was a contract between both the parties. (xiv) At this juncture, it is appropriate to consider the cause of action mentioned in para-8 of the plaint, which is as follows: "8.The cause of action for the suit arose at Chennai, the plaintiff office situated within the jurisdiction of this Honourable Court, when the defendant has paid a sum of Rs.85,000/- on 05.03.2004 which was remitted into Government Account as per letter dated 04.03.2004. .." Admittedly, as per Section 20 of C.P.C., it was specifically mentioned that every suit shall be instituted in a Court within the local limits of whose jurisdiction, the defendant or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. (xv) Admittedly, the documents filed by the appellant/plaintiff (i.e.) Exs.A2 to A6, A10, A11 and A13 to A15, which show that the respondent/defendant is residing and doing her business at Madurai. After filing of the suit, the respondent/defendant raised the plea in para-4 of her written statement that this Court has no jurisdiction to entertain the suit. She specifically mentioned that the cause of action also had completely arisen at Madurai, from where the defendant, acting as a sole agent of the Tamil Nadu Raffle Department, had transacted her business. In such circumstances, the appellant/plaintiff has not filed any reply statement to that fact that there was a contract between both the appellant/plaintiff and the respondent/defendant. As per the consent of both the parties, they conferred the jurisdiction only the Court at Chennai. Admittedly, there is no pleading and no document was produced for the same. While D.W.1 was in witness box, no question has been posed to her to show that as per the contract between both the appellant/plaintiff and the respondent/defendant, the territorial jurisdiction has been conferred only the Courts at Chennai, but only during the appeal, the appellant/plaintiff has putforth his argument and stating that Clause-21(2) of Terms and Conditions of Contract says the Courts at Chennai alone having jurisdiction. Admittedly, he has not filed the document neither before the trial Court nor before the appellate Court along with petition for reception of additional evidence. In the stated circumstances, I am of the opinion, the appellant/plaintiff has miserably failed to prove that the trial Court is having territorial jurisdiction to entertain the suit. Since the respondent/defendant is residing at Madurai and doing her https://hcservices.ecourts.gov.in/hcservices/ business at Madurai, as per Section 20 of C.P.C., the Courts at Madurai alone is having territorial jurisdiction. So the trial Court is correct in held that the Courts at Chennai does not having any territorial jurisdiction to entertain the suit. Point No.1 is answered accordingly. 7.Points No.2 to 4: In view of the answer given to Point No.1, the trial Court has no territorial jurisdiction to entertain the suit. Furthermore, the trial Court itself in Issue No.3 in para-25, came to the conclusion that the trial Court has no jurisdiction to entertain the suit. Once the trial Court has no territorial jurisdiction to decide the matter, the findings and the judgment and decree passed by the Court is non- est in the eye of law. Hence, I am of the view that the findings of the trial Court in respect of all the issues on merits are non-est in the eye of law and liable to be set aside. So the judgment and decree passed by the trial Court are liable to be set aside and as unsustainable. Hence it is hereby set aside. Hence it is a fit case to remit the matter to the proper Court, which is having territorial jurisdiction to entertain the suit. Hence the matter is remitted back to the trial Court and the trial Court is directed to return the plaint to the appellant/plaintiff to represent the same before the proper jurisdictional Court. The jurisdictional Court is directed to dispose of the suit within three months from the date of receipt of the records. Points No.2 to 4 are answered accordingly. 8.In fine, • The First Appeal is allowed and the judgment and decree passed by the trial Court are hereby set aside. • The matter is remitted back to the trial Court and the trial Court is directed to return the plaint to the appellant / plaintiff with the direction to re-present the same before the competent jurisdictional Court. • The competent jurisdictional Court is directed to dispose of the suit within three months from the date of receipt of the records. • No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kj https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District Court (Fast Track Court-V) Chennai. 2.The Record Keeper V.R. Section, High Court, Madras. 1 cc to Spl.Government Pleader, Sr.No.5635 Judgment in Appeal Suit No.71 of 2007 KSK {CO} TP/21.4.2011. https://hcservices.ecourts.gov.in/hcservices/