IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 2964 of 2009(C) ------------------------------------------- OS.134/2008 of I ADDL.SUB COURT, ERNAKULAM .................... PETITIONER: ING VYSYA BANK LTD., RETAIL BANKING DIVISION, SHEMA BUILDING, M.G.ROAD, REP. BY ITS POWER OF ATTORNEY HOLDER, SRI.C.VENUGOPALAN, ASSISTANT MANAGER. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENTS: 1. B.SUKESH, 58 YEARS, RESIDING AT T.C.41/1931, PANDIT COLONY, KOWDIAR, THIRUVANANTHAPURAM. 2. JOLLY SUKESH, 59 YEARS, TC.41/1931, DO. DO. 3. ASST.DIRECTOR, DIRECTORATE OF CENSUS OPERATIONS, KERALA, C.G.O.COMPLEX, POONKULAM, THIRUVANANTHAPURAM-695522. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.2964 of 2009 C -------------------------- JUDGMENT Petitioner is the plaintiff in O.S.No.134/08 on the file of the I Additional Sub Court, Ernakulam. Registry has got ascertained from the Sub Judge, Ernakulam that restoration application (I.A.No. 4908/08) in O.S.No.134/08 has been allowed on 23.1.2009 and that on I.A.No.224/09 notice had been ordered and objection was filed only on 27.1.2009 and in the meanwhile, on 28.1.2009, counsel for the plaintiff relinquished his engagement and the case is posted to 30.1.2009. 2. If at all the restoration application was allowed on 23.1.2009, nothing prevented the court below from passing appropriate orders on I.A.No.224/09 on the same day. However, as directed by this Court, orders were not passed on I.A.No.224/09 before 24.1.2009. Registry has reported that the Sub Judge further stated that as per the plaint averments that court is not having territorial jurisdiction to try the suit. Petitioner/plaintiff has produced, along with this writ WPC 2964/09 2 petition, Exhibit P7, copy of the plaint in O.S.No. 134/08 aforesaid, which shows that Ernakulam Court is having jurisdiction, going by the averments in paragraph 6 of the plaint. But, all the same, the personal loan agreement produced as Exhibit P4, the promissory note produced as Exhibit P3, etc. show that the transaction has taken place at Thiruvananthapuram and not at Ernakulam. In the schedule attached to Exhibit P4, it is further seen stated specifically that place of agreement is Thiruvananthapuram; that the Bank's concerned Branch is Thiruvananthapuram Branch and that date of agreement is 31.1.2002. These documents show that the agreement was executed at Thiruvananthapuram and the transaction has taken place at Thiruvananthapuram and not at Ernakulam as alleged. Simply because some notice is issued from Ernakulam to the defendants, who are residing at Thiruvananthapuram, the courts at Ernakulam will not get jurisdiction. Counsel for the petitioner prays that a direction be issued to the court below to return the plaint forthwith so as to enable them to re-present it before the Sub Court, Thiruvananthapuram. WPC 2964/09 3 3. In the result, I direct the court below to return the plaint in O.S.No.134/08 to the counsel for the petitioner/plaintiff for re-presentation before the Sub Court, Thiruvananthapuram, as it is admitted before me that the plaint was being presented wrongly before the Sub Court, Ernakulam. It is made clear that for returning the plaint, no further application need be filed by the petitioner/plaintiff and the plaint can be returned to the petitioner's counsel, who is filing fresh vakalath, as the counsel for the petitioner submits that he will file vakalath for the petitioner/ plaintiff positively today. Return the plaint positively tomorrow, if not today, complying with the procedure under Order VII Rule 10(2) CPC. Counsel for the petitioner shall produce a copy of this judgment before the Sub Judge forthwith. The writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. 29th January, 2009 (K.P.Balachandran, Judge) tkv