Madras High Court

Mr. Farok Sarkari vs Mr.A. Balasubramanian on 29 January, 2021

                                                                    Application Nos.1811 and 1812 of 2020

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 29.01.2021

                                                     CORAM :

                                   THE HONOURABLE MR.JUSTICE R. PONGIAPPAN

                                        Application Nos.1811 and 1812 of 2020


                Mr. Farok Sarkari
                S/o Late Mr.Preston Ji Rustam
                No.3/3, Sanjay Complex, Matha Mandir,
                South T.Nagar, Bhopal,
                Madhyapradesh-462003.                         ...           Applicant


                                                   versus

                M/s. New Finn Groups Rep.by its Partners

                1. Mr.A. Balasubramanian
                   S/o Mr. Arumugam
                   No.34, Andavar Nagar, 2nd Street,
                   Vadapalani, Chennai 600026.

                2. Mr.A. Manthira Moorthy
                   S/o Arjunan
                   No.47/B/2, Chokka Vassal North Street,
                   C.N.Village, Tirunelveli Dist.6237001 ...                Respondents

Prayer in A.No.1811 of 2020: Application filed under Order XIV Rule 8 of Original Side Rules read with Clause 13 of the Letters Patent and Section 24 of the CPC praying the court to withdraw the suit pending on the file of the III Additional City Civil Court at Chennai to the file of this Court and try the same

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Application Nos.1811 and 1812 of 2020

in accordance with law.

Prayer in A.No.1812 of 2020: Application filed under Order XIV Rule 8 of Original Side Rules read with Clause 13 of the Letters Patent and Section 24 of the CPC praying to stay all further proceedings in O.S.No.4820 of 2019 pending on the file of the III Additional City Civil Court at Chennai till the said O.S.No.4820 of 2019 is withdrawn from the III Additional City Civil Court, Chennai to the file of this Court in accordance with law.

For Applicant : Ms. Priyadarshini Natarajan

For Respondents : Mr. C.P. Siva Mohan

COMMON ORDER

Application in A.No.1811 of 2020 has been filed to withdraw the suit

pending on the file of the III Additional City Civil Court at Chennai to the file

of this Court and Application in A.No.1812 of 2020 has been filed to stay all

further proceedings in O.S.No.4820 of 2019 pending on the file of the III

Additional City Civil Court at Chennai.

2. Heard Ms. Priyadarshini Natarajan learned counsel appearing for the

Petitioner and Mr.C.P.Siva Mohan learned counsel appearing for the

Respondent. Applications, supporting affidavits and other materials produced

are perused.

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Application Nos.1811 and 1812 of 2020

3. The Application mentioned Suit in O.S.No.4820 of 2019 has been

filed by the Respondents for the following Reliefs:

                                         "a.   For   recovery    of        the   loan     amount       of
                                   Rs.10,00,000/-    bvorrowed        by     the     Defendant        on

28.08.2018 covered under the Registered Promissory Note bearing registration number 47 of 2018 at SRO, Surandai with further interest to pay the plaintiff and the value of 24% per annum from the date of plaint till the date of realisation.

b. For a Permanent Injunction restraining the Defendant, their men, agents representatives or any one acting on behalf of him from in any way disturbing interfering and thratening the plaintiff in their business place and their family members at residence place in guise of any demand for cancelling the Registered Promissory Note dated 28.08.2018 Registered Document No.47 of 2018 SRO at Surandai and in any manner affecting the right and peaceful life to the Plaintiffs and their family Members except by due process of law

c. To award cost of suit

d. And to pass such further or other orders as this Hon'ble Court may deem fit and proper in the https://www.mhc.tn.gov.in/judis/

Application Nos.1811 and 1812 of 2020

circumstances of the case and thus render justice. "

4. The Applicant herein is the Defendant in the above referred suit filed

Written Statement incorporating the counter claim which is valued at Rs.2.70

Crores which exceeds pecuniary jurisdiction of the City Civil Court, Chennai.

After filing Written Statement the Applicant herein has come forward with the

present Transfer Application stating that the suit should be transferred to this

Court since the counter claim exceeds the pecuniary jurisdiction of the City

Civil Court, Chennai, in which the suit is pending.

5. Learned counsel for the Applicant submits that since the cause of

action for the Plaintiff and the cause of action for the Defendant are one and

the same, he has no other alternative remedy except to file the counter claim in

the suit filed by the Respondent herein. Even after knowing the same that the

City Civil Court, Chennai is not having pecuniary jurisdiction for trying the

suit valued at Rs.2.70 Crores, and the Applicant herein filed the said counter

claim and arguing for transferring the entire suit from the file of City Civil

Court, Chennai, to this Court.

6. In support of his claim, the learned counsel for the Applicant relied https://www.mhc.tn.gov.in/judis/

Application Nos.1811 and 1812 of 2020

upon the following three judgments:

1. Raj Associates Vs. Videsh Sanchar Nigam Limited & Anr. [2009 SCC Online Del 1176]

2. Pritesh Kumar Singh Vs.Peepee Publishers & Distributors [2015 SCC Online Del. 11261]

3. Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsang [(1996) 4 SCC 699]

7. On going through close reading of the said judgements, it is revealed

that the factual aspects narrated in the above referred judgements is not in

correspondence with the present case. It is not the contention of the Petitioner

that in any one of the above referred cases as the counter claim filed along with

the Written Statement is exceeded the pecuniary limit of that court in which the

suit is pending. In fact, for making a counter claim the cause of action need

not be the same as the one available to the Plaintiff. The Defendant shall have

separate cause of action to make a counter claim against the Plaintiff. In such

eventuality the Defendant can either file a separate suit or make a counter

claim in the suit filed by the plaintiff.

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Application Nos.1811 and 1812 of 2020

8. At this juncture it would be necessary and relevant to see the Order

VIII Rule 6A of C.P.C which reads as follows:

"The Proviso to Sub-Clause (1) makes it clear that the counter claim shall not exceed limits of the jurisdiction of the Court.

Sub Clauses (2) to (4) serve as an explanation of the proviso.

According to Sub Clause (2) Counter claim shall have the same effect as a cross-suit.

Sub Clauses (3) enables the plaintiff to file a written statement rebutting the counter claim.

Sub Clause (4) enables that the counter claim shall be treated as a plaint directing all the provisions applicable to the plaint."

9. Further in the judgement rendered by this Court in M.K.Muthurajan

vs. A. Parasuraman [Tr.C.M.P.No.260 of 2016 dated 27.04.2016] this Court

has observed as follows:

"When the defendant cannot file a separate suit in the Court in which suit filed by the Plaintiff is pending as https://www.mhc.tn.gov.in/judis/

Application Nos.1811 and 1812 of 2020

his claim would exceed the pecuniary jurisdiction of the said Court, then he cannot make a counter claim subject to a rider that he can do so by complying with the provisions found in Order II Rule 2 C.P.C."

10. Therefore, without adverting to the said provisions, due to the wrong

advice, the petitioner seems to have made a counter claim, he exceeds the

pecuniary jurisdiction of the City Civil Court, Chennai, in which the suit is

pending. The said attempt can even be termed to be an abuse of process of

Court. In otherwise, the only remedy available to the Applicant is that to

accrue the counter claim from the said suit and to initiate separate proceedings

in respect of the claim made towards the respondent.

11. Further in the similar issue our Honourable Apex Court has held in

SLP (C) No.27264 of 1995 Reported in Gurbachan Singh vs. Bhag Singe &

Others [CDJ 1995 SC 172] where in it is stated as follows:

"3. It is true that Rule 6A(a) was introduced by Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter claim or set off cannot be set up in other suits. The Law Commission of India had recommended, to avoid

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Application Nos.1811 and 1812 of 2020

multiplicity of the proceedings, right to the defendants to raise the plea of set off in addition to a counter claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter claim or set off had accrued to defendant either before or after the filing of the suit. The limitation was that the counter claim or set off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter-claim is in the nature of a claim for damages or not. Further limitation was that the counter-claim should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying the counter claim pecuniary jurisdiction of the court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter claim beyond its pecuniary jurisdiction.. Thus considered, we hold that in a suit for injunction, the counter-claim for possession also could be entertained, by operation of Order 8 Rule 6 (A)(1) of CPC."

12. Therefore all these principles observed by our Honourable Apex

Court as well as by this Court is vary narrow that the Applicant is not entitled

to file a counter claim for a value which exceeds the pecuniary limit of the https://www.mhc.tn.gov.in/judis/

Application Nos.1811 and 1812 of 2020

Court in which the suit is pending. Therefore no merit found in the application

filed by the Applicant. The Application is liable to be dismissed.

13. In view of the same, the Application No.1811 of 2020 is dismissed.

Consequently, connected Application in A.No.1812 of 2020 is closed.

29.01.2021

Index : yes Internet : yes Speaking order ggs

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Application Nos.1811 and 1812 of 2020