Satish Pathak vs The Zonal Manager, Lic Of India And ...
2006 Latest Caselaw 2066 Del

JUDGMENT

Anil Kumar, J.

1. The petitioner has claimed the amounts under the policies taken by his brother, Shri Vikas Kumar Pathak, on his death and has sought quashing of orders of rejection dated 30th March, 2002 on the three policies annexed as Annexures P3 to P5 and the letter dated 30th November, 2004 communicating to the petitioner that the claim had been examined by a Retired High Court Judge and other higher authorities and it has been decided to uphold the decision of repudiation taken by the respondents.

2. Brief facts to comprehend the controversies are that the brother of the petitioner, Shri Vikas Kumar Pathak, who was a B.E. (Mechanical) Graduate and had joined Royal Enfield Motors on 3rd September, 1998, had taken three policies from the respondents. First policy was taken on 9th March, 1999 for a sum of Rs. 4 lakhs vide Policy No. 191611240 from the agents of the respondent at its Divisional Office, Jaipur. The second policy for Rs. 3 lakh was taken a few days thereafter on 12th March, 1999 vide Policy No. 191647494 and the third policy taken for Rs. 25,000/- on 12th March, 1999 vide Policy No. 191647495. In all the three policies taken by the brother of the petitioner, Shri Vikash Kumar Pathak and in the all the policies the nominee was the petitioner.

3. According to petitioner, his brother worked with Royal Enfield Motors till 5th May, 2000 and during his tenure he never availed any major leave and he left the job with M/s. Royal Enfield Motors on 5th May, 2000 and joined G.E. Power Pvt. Limited, Bangalore on 17th May, 2000 as Officer Sourcing and worked till 10th November, 2000. According to the petitioner, his brother expired at Ranchi on 23rd January, 2001 and a death certificate was issued on 24th January, 2001. After the demise of the petitioner's brother, petitioner filed claims fulfillling all the formalities with the office of the respondents in Jaipur.

4. The three claims of the petitioner were repudiated by three letters dated 30th March, 2002 in respect of three policies contending inter alia that the deceased, brother of the petitioner, had withheld the correct information regarding his health at the time of effecting the assurance with the respondents and he had also not disclosed in the applications for assurance to the question, Is your life now being proposal for another assurance or an application for revival of a policy on your life under consideration in any office of the Corporation? If yes, give details. The answer given was 'No' which is contrary to the facts as the petitioner's brother had three policies.

5. The petitioner contended that the first policy was taken by his brother on 9th March, 1999 and on that date the other two policies for sum of Rs. 3.00 lakh and Rs. 25,000/- had not been taken and so the answer given in reply to the question was correct which may not be correct in respect of other two policies which were taken on 12th March, 1999 and, therefore, the claim of Rs. 4.00 lakh in respect of the first policy which was taken on 9th March, 1999 could not be repudiated and, therefore, he made a representation. It was also contended that nothing was concealed by his brother because at the time of taking the policy he was in a very good state health.

6. Aggrieved by the order of rejection and non consideration of his representation, petitioner filed a writ petition No. 8094 of 2004, Satish Pathak v. Zonal Manager, LIC of India and Ors. which was decided by a single Judge of this Court by order dated 29th September, 2004 directing the respondents that the representation filed by the petitioner be forwarded to Mumbai office for consideration and decision be communicated to the petitioner within a maximum period of two months.

7. Since the respondents have upheld the decision of repudiation dated 30th March, 2002, which has been communicated by communication dated 30th November, 2004, the present petition has been filed by the petitioner.

8. The petition is contested by respondent Nos.1 to 3 who have filed a counter affidavit of Shri V.K. Sharma, Assistant Secretary (L&HPF), Life Insurance Corporation of India, who has raised a preliminary objection that the petition under Article 226 of the Constitution of India before the High Court at Delhi is not maintainable as no part of cause of action has arisen within the territorial jurisdiction of this Court. It was asserted that in the earlier Writ Petition No. 8094/2004 the only relief granted by judgment dated 29th March, 2005 was to forward the representation of the petitioner to the Central Office at Mumbai for consideration which has been considered by a Retired High court Judge and other functionaries and the order of the repudiation passed earlier dated 30th March, 2003 has been sustained.

9. It was categorically asserted on behalf of respondents that merely because the Corporation has a subordinate zonal office at Delhi, will not give jurisdiction to the courts at Delhi as no cause of action had arisen at Delhi. Reliance was placed by the respondents on Smt. Kamla Chopra v. LIC of India Collector of Customs, Calcutta v. East India Commercial Co. Ltd. ; Bhola Nath Aggarwal and Anr. v. The Empire of India Life Insurance Co. Ltd XLIX (1947) PLR 163 and Life Insurance Corporation of India and Ors. v. Asha Goel (Smt) and Anr. (2001) 2 SCC 160 to contend that courts at Delhi do not have jurisdiction. The respondents categorically contended that the deceased, brother of the petitioner, had died at Ranchi and the claim was filed with the Branch Office of the respondent at Jaipur. The orders were also passed by the Divisional Office of the respondents at Jaipur and pursuant to the direction by this Court in an another writ petition, the representation against the repudiation of the claim of the petitioner, was considered by the Office at Mumbai and has been rejected after due consideration by a Retired High Court Judge and other functionaries and in the circumstances no cause of action has arisen at Delhi. The respondent Nos.1 to 3 contended that they are filing the counter affidavit only on the question of jurisdiction and sought liberty to file a detailed counter affidavit in case it is held that the writ petition is maintainable.

10. I have heard the learned Counsel for the parties and perused the petition, counter affidavit and the documents filed with them. Learned Counsel for the petitioner, Shri D.K. Goswami, contended that the writ petition regarding the disputed question of fact that whether the deceased brother of the petitioner withheld the relevant information or not shall be maintainable and relied on ABL International Limited and Others v. Export Credit Guarantee Corporation of India Limited and Ors. . Learned Counsel for the petitioner contended that since the Divisional Office of the respondent while repudiating the claim by order dated 30th March, 2002 had directed to make the representation to Delhi Office and the earlier petition filed by the petitioner was also entertained by Delhi High Court and directions were given to the respondents to forward the claim of the petitioner to the Mumbai Office, which order had not been challenged by the respondents, therefore, the cause of action has arisen at Delhi and the courts at Delhi will have jurisdiction to entertain and try the present petition.

11. This Court by order dated 29th September, 2004 in Civil Writ Petition No. 8094 of 2004 had held as under:

In views of the aforesaid position, I am of the considered view that respondents ought to have forwarded the representation of the petitioner to Bombay office for consideration since the petitioner made a representation only in pursuance to the intimation sent by respondent No. 2.

It is thus agreed that the representation of the petitioner shall be forwarded to the Bombay office for consideration and a decision shall be communicated to the petitioner within a maximum period of two months from today. In case of any adverse decision, it will be open to the petitioner to impugn the decision in accordance with law.

The writ petition stands disposed of.

dusty to learned Counsel for the parties.

September 29, 2004 Sanjay Kishan Kaul, J.

12. For exercising power under Article 226 of the Constitution of India the Court must have requisite territorial jurisdiction in absence of which a writ petition should not be entertained. In Kusum Ingots and Alloys Ltd. v. Union of India and Anr. , a issue was raised before the Supreme Court as to whether the High Court of Delhi would have the requisite territorial jurisdiction to entertain a writ petition and the Supreme Court referred to the provisions of Article 226(2) of the Constitution of India as also Section 20(c) of Code of Civil Procedure. It was held by the Apex Court as under:

9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to a writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a case cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material fact is also known as integral facts.

The Supreme Court further held in the same judgment that keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of a Court, that Court will have jurisdiction in the matter. The aforesaid conclusion was arrived at by the Supreme Court upon discussion of various earlier decisions of the Supreme Court, which were referred to and discussed in the said judgment. In para 23 Kusum Ingots (supra) judgment, it was held that a writ petition, questioning the constitutionality of a Parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi. While coming to the aforesaid conclusion the Supreme Court relied upon and referred to the decision of the Calcutta High Court in Abdul Kafi Khan v. Union of India and Ors. where it was held that when admittedly neither cause of action nor any part thereof ever arose or accrued within territorial jurisdiction and orders sought to be impeached passed by authorities outside territorial jurisdiction then the Court had no jurisdiction in view of Article 226(1).

13. What emerges in the facts and circumstances is that a Court will have jurisdiction under Article 226 of the Constitution of India if the cause of action in wholly or in part arises within its jurisdiction. If that be so then next question is as to what all constitutes a cause of action for invoking the jurisdiction of a Court? Cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal. It implies a right to sue. The material facts imperative for the claimant to allege and prove constitute the cause of action. However, every fact pleaded is not a material fact but only those facts which, if pleaded, the petitioner can obtain an order is a material fact and not other facts. Therefore facts pleaded must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. It not only means infraction of right but infraction coupled with right itself. The question as to whether the Court has territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. In order to confer the jurisdiction on the High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action to constitute a cause so as to empower the Court to decide the dispute and that the entire or a part of it arose within its jurisdiction. Even if a small cause of action has arisen in the territorial jurisdiction of the High Court then also the High Court will have jurisdiction in the matter however it cannot be a determinative factor compelling the court to decide the matter on merit. Cause of Action must help the petitioner in obtaining a decree. When an order, is made by a court or an executive authority under the provisions of a statute or otherwise then a part of the cause of action arises at that place provided that the cause of action has arisen because of that order.

14. In Oil and Natural Gas Commission v. Utapl Kumar Basu and Ors. the Supreme Court had held:

Under Article 226 a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purposes if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ it issued is not within the said territories. The expression "cause of action" means that bundle of facts which the petitioner must prove, it traversed to entitle him to a judgment in his favor by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the court must taken all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition the truth or otherwise of the averments made in the petition being immaterial.

In ONGC case (supra) it was held by the Supreme Court that mere sending and receiving of fax messages at Calcutta would not constitute an integral part of cause of action and therefore, Court will not have jurisdiction. In State of Rajasthan v. Swaika properties the Supreme Court held that mere service of notice would not give rise to any cause of action unless service of notice was an integral part of the cause of action.

15. In Union of India v. Adani Exports Ltd. , the Apex Court held that each and every fact pleaded will not give rise to a cause of action. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned.

16. In Sarwan Singh Versus Union of India and ors. the division bench of this Court, after citing the settled case laws on the issue of territorial jurisdiction, held that if no part of the cause of action has arisen within the territorial jurisdiction of this Court, in that case the court shall not entertain the writ petition, as this Court shall have no jurisdiction to entertain such writ petitions.

17. In Sector Twenty-one owners Welfare Association v. Air Force Naval Housing Board , a Division Bench of this Court has held that a trivial or insignificant part of the cause of action arising at a particular place would not be enough to confer writ jurisdiction on the Court to entertain the lis and deduced from various precedents that the emphasis has shifted from the residence or location of the person or authority sought to be proceeded against, to the situs of the accrual of cause of action. There is no reason why the observations pertaining to writ petitions should not be extrapolated and inter- changed between suits and writ petitioners. The Bench held as follows:

13. The law as reflected by the above said decisions is that the emphasis has shifted from the residence or location of the person or authority sought to be proceeded against to the situs of the accrual of cause of action wholly or in part. It is also clear that a trivial or insignificant part of the cause of action arising at a particular place would be not enough to confer writ jurisdiction; it is the cause of action mainly and substantially arising at a place which would be determinating factor of territorial jurisdiction. So also it shall have to be kept in view who are the real persons or authorities sought to be proceeded against or against whom the writ to be issued by the Court would run. Joining to proforma or anciliary parties and certainly not the joining of unnecessary parties, would be relevant for the purposes of Article 226(1).

18. The choice of forum cannot be left at the whims and fancies of the litigants/parties. Jurisdiction of the court is attracted only by reason of entire cause of action or a part of cause of action arising within its territorial jurisdiction. Primacy has been given to the place where the cause of action has substantially arisen, as is evident from the decision of the Supreme Court in South East Asia Shipping Co. Ltd v. Nav Bharat Enterprises Pvt. Ltd. . In this case the admitted position was that performance of the obligations and liabilities under the contract was to be carried out in Bombay. The Apex Court found it wholly irrelevant that the subject Bank Guarantee had been executed at Delhi and transmitted for performance to Bombay and held that Delhi Courts did not possess jurisdiction to decide the dispute. An analysis of the various pronouncements of the Supreme Court reveals that even though the express terms of Section 20 of the CPC permit the filing of a suit against a Corporation at its principal office, primacy and pre-eminence has been accorded to the place where the cause of action had substantially arisen, as against those places where it has incidentally or partially arisen. Whilst the Supreme Court has indubitably enumerated in ABC Laminart v. A.P. Agencies the several places where the cause of action could be seen to have arisen, this was done primarily to investigate and determine whether the place to which jurisdiction had been restricted, by ousting all others, itself enjoyed jurisdiction. Otherwise, as is trite, such a clause would become legally inefficacious since it is not possible to infuse by contract jurisdiction on Court which does not otherwise possess it. The position that obtains today is that primacy is accorded to the place where the cause of action substantially arises. The following passage of ABC Laminart is quite instructive:

15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a Court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors.

19. This question has also been considered in detail by the Supreme Court in Union of India v. Adani Exports Ltd. . In its opinion each and every fact pleaded in the application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.

20. The brother of the petitioner got the three insurance policies at Ranchi. Since the brother of the petitioner was staying at Ranchi and was working there, the premium on the insurance policy was paid at Ranchi. The brother of the petitioner died at Ranchi and since the petitioner was the nominee under the policies, he filed three claims pertaining to three policies of his brother at the Divisional office of respondents and Jaipur. The claims of the petitioner were repudiated by the Divisional office of the respondent from Jaipur. Therefore, no cause of action arose within the territorial jurisdiction of this High Court.

21. While repudiating the claims of the petitioner, it was intimated to the petitioner that in case he is not satisfied with the decision of repudiation or if he feels that any particular fact and circumstances in support of his claim has not been considered, the representation may be sent by him to Zonal Office at New Delhi. Petitioner did sent his representations against the repudiation of his claims to the Zonal office at New Delhi which were not considered entailing filing of a writ petition by the petitioner which was also disposed of directing the respondents to forward the representation of the petitioner to their office at Mumbai. The representation of the petitioner was considered by the office of the respondents at Mumbai by a retired High Court Judge and other functionaries and decision to reject his claims was sustained which was communicated to the petitioner at his address at Jaipur by communication dated 30th November, 2004. After filing of writ petition at Delhi pursuant to the decision of which the representation was forwarded to Mumbai, will the Court at Delhi still have jurisdiction. The observation of the Supreme Court in in Collector of Customs, Calcutta v. East India Commercial Co. Ltd will be relevant in the present facts and circumstances which are as under:

We, therefore, feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.

22. Therefore, the cause of action, after the representation of the petitioner was forwarded to the Mumbai office where it was considered and decided, will arise there and not in New Delhi even though the decision was affirmed by the Mumbai office of the repudiation of claims taken by the divisional office at Jaipur. The fact that while repudiating the claims of the petitioner, he was advised to approach the office of the respondents at New Delhi, after the decision of the representation, the cause of action will not arise at Delhi because the petitioner is challenging the decision taken on representation of the petitioner at Mumbai. In the circumstances, there is no doubt that no cause of action, even a small part of it, has arisen at New Delhi in the facts and circumstances. The representation of the petitioner was not considered by the Delhi office is also apparent from the subsequent communication sent to the petitioner correcting the earlier communication asking the petitioner to file representation at Delhi. In Smt. Kamla Chopra v. Life Corporation of India and Ors. , it was held as under:

There is no doubt that the central office of the Corporation being at Bombay, the plaintiff if she chooses, can bring her suit at Bombay. The question is whether there is a subordinate office at Delhi. Assuming that Delhi is a subordinate office but if no part of cause of action has arisen at the place where the branch or subordinate office is situated there mere fact of corporation having a branch office will not give the Court of that place jurisdiction to entertain a suit. The law is well settled that if no part of the cause of action arises at the place of the branch office, the mere fact of the Corporation having a branch office at the place will not give the Court jurisdiction.

23. The Delhi office of the respondents only acted as a post office, as on the direction of this Court in another petition, the representation of the petitioner was forwarded to the office at Mumbai. In Bhola Nath Aggarwal and Anr. v. The Empire of India Life Insurance Co. Ltd. XLIX (1947) PLR 163 it was held as under:

Where the policy was taken by the agent at Jullandhar and was accepted by the Head office at Bombay, the Lahore office only acting as a post office forwarding proposal and sending monies, the Lahore Courts have no jurisdiction to entertain a suit against the company on the basis of the policy.

24. What emerges unequivocally in the facts and circumstances is that no cause of action has arisen in any manner at Delhi after the representation of the petitioner was forwarded by the Delhi office to Mumbai. The plea of the petitioner that since the earlier petition was filed at Delhi and order was passed giving direction to the respondents at Delhi which order was not challenged by the respondents so the respondents can not challenge that the Court at Delhi does not have jurisdiction. The plea and argument is based on wrong perception of the petitioner. The cause of action on which the earlier writ petition was filed had been exhausted. After consideration and decision of the representation of the petitioner at Mumbai, no cause of action has arisen at New Delhi to give jurisdiction to the Courts at New Delhi. Otherwise also no cause of action has arisen at New Delhi. If that be so there can not be any hesitation in holding that the Courts at Delhi does not have jurisdiction to adjudicate upon the decision taken by the Mumbai office of the respondent No. 3 in the facts and circumstances of this case.

25. For the reasons aforementioned, I am of the opinion that this Court has no jurisdiction to adjudicate the relief prayed by the petitioner in this writ petition. The writ petition is therefore, dismissed. The petitioner, however, would have liberty to file the petition in the appropriate Court having jurisdiction in the facts and circumstances of the case. Parties are also left to bear their own costs.