“When there is inherent lack of jurisdiction going by the averment of the plaint, question of waiver and/or estoppel does not arise as averments made in the plaint do and can not confer any jurisdiction. So this application for demurrer action is perfectly maintainable. On the aforesaid reasoning I reject the plaint on the ground nondisclosure of causes of action if it is a suit for defamation. If it is a suit for reliefs other than defamation then this plaint is liable to be returned and is hereby returned for presenting the same before the appropriate court upon payment of court fees of Rs. 10,000/- within seven days from the date of receipt of this order. In default thereof this suit shall stand dismissed”.
CALCUTTA HIGH COURT
( Before : Sengupta, J )
PRAGATI ENGINEERING (P) LTD. — Appellant
INDIAN OIL CORPORATION LIMITED — Respondent
Decided on : 20-01-2000
West Bengal Court Fees (Amendment) Act, 1974 – Section 7
Counsel for Appearing Parties
Tibriwal, Bimal Chatterji, for the Appellant;
Anindya Mitra, Patharyria and Ranjan Bachgawat, for the Respondent
Sengupta, J.—Those two applications being G.A. No. 3819 of 1999 and G.A. No. 1999 are taken up for hearing. The latter application has been taken out by the plaintiff for appropriate interim relief. The plaintiff obtained interim relief immediately after the suit was filed. The former application has been taken out by the defendant for revocation of Leave under Clause 2 of the Letters Patent, the dismissal of the aforesaid suit and/or for taking the plaint off the file and further vacating interim order dated April 7, 1999. Both these applications are mutually opposed by both the parties by filing affidavits-in-opposition. It would be appropriate to record that an application has been filed by the defendant for extension of time to file written statement. The said application is marked as G.A. No. 4631 of 1999 though the said application has not been disposed of and the same is pending.
2. The application taken out by the defendant is taken up for hearing as this is a demurrer action and thereafter the application for interlocutory relief has also been heard on merit
3. Mr. Anindya Mitra, learned Senior Counsel appearing with Ms. Pathayria and Mr. Ranjan Bachwat learned Counsels submits that having regard to the averments made in the plaint as well as the prayer thereof it would appear that this suit is really meant to be a suit for defamation and this fact will be borne out in averment made in paragraph 38 of the plaint. As such exemption of payment of Court Fee has been pleaded. Accordingly, no court fee has been paid. Curiously the relief claimed has no nexus and/or connection with the suit for defamation. He submits that averments and/or allegations made in paragraphs 13 and 22 do not constitute any cause of action nor such cause of action has been disclosed. The averments made in paragraph 13, for argument sake even if constitutes cause of action, such alleged cause of action cannot be said to have arisen within the jurisdiction of this Court. The averments made in paragraph 22 do not constitute any cause of action as receipt of a letter in this case, within the jurisdiction cannot be said to be a cause of action. Admittedly defendant is having place of business and/or carries on business upon the plaintiff’s own showing outside the jurisdiction of this Court. The incident and/or transaction in relation to which the cause of action has been pleaded has taken place admittedly outside the territorial limit of this Court. Nothing has happened within the jurisdiction of this Court nor the same has disclosed.
4. Mr. Tibriwal, learned Senior Counsel appearing with Mr. Bimal Chatterjee, learned Senior Counsel submits that it is true that no court fee has been paid as it is done normally in a suit for defamation and for damages. Because of this averment this suit cannot be ascribed a suit for defamation, so the plaint is to be read as a whole. It is combined action. In the event this Court finds that the suit is for some other purpose other that the suit for defamation then his client is prepared to pay deficit court fee within the time to be stipulated by this Court. He also submits on merit of the interlocutory application. I think it fit it would not be proper to record such submission until I decide the application taken out by the defendant. So I propose to deal with the application of the defendant first.
5. I have gone through the plaint as a whole. It appears to me the plaint is really confusing. The suit as framed according to me is a suit for defamation. As such the averments made in paragraphs 13 and 22 are taken to be the basis for invoking jurisdiction of this Hon’ble Court and leave under Clause 12 of the Letters Patent has been obtained.
6. The averment made in paragraph 38 of the plaint is good enough to come to a conclusion of this Court that it is a suit for defamation as specific averment has been made as follows :
38. Inasmuch as it is a suit for defamation no Court Fees shall be payable in suit for damages for defamation u/s 7 of the West Bengal Court Fees (Amendment) Act, 1974.
7. In paragraph 34 it has been averred amongst others that the plaintiff is alleged to have greatly injured in its credit and reputation and as such it has suffered loss and damages to the business and such loss has been quantified at sum of Rs. 10 Crores. Though there is a quantification of damage by the plaintiff of its own showing but no Court Fees having been paid.
8. In the context as above I am to examine whether allegations contained in paragraph 13 constitute any cause of action for defamation or not.
9. It has been averred in paragraph 13 that “the plaintiff heard rumours at Calcutta within the jurisdiction aforesaid that although the plaintiffs offer for the Bhopal LPG Bottling Plant is the lowest the same would not be considered by the Western Region of the defendant.”
10. Having regard to the averments made in some other paragraphs of the plaint it appears to me upon the plaintiff’s own showing that there is a basis of rumour as the defendant has already taken action. It has not been averred in paragraph 13 whether the rumours had been heard from third parties or not, no particulars has been furnished. So, in my view the aforesaid allegations do not constitute any cause of action for defamation as such I hold no cause of action has been disclosed to maintain the suit for defamation.
11. In paragraph 22 it is averred that a letter dated 18th January, 1999 had been addressed to the plaintiff by the defendant whereby a notice to show cause has been given as to why an action should not be taken against the plaintiff. A show cause notice cannot be treated a defamation at all. The allegations in the said letter dated 18th January, 1999 has connection and/or relation with transaction between the two parties and there is a basis and/or justification for issuance of the aforesaid notice and it will appear from the plaint itself. It has not been averred that the aforesaid letter dated 18th January, 1999 has been circulated to the third parties. So averments and allegations made in paragraph 22 do not constitute any cause of action, as such no cause of action has been disclosed to maintain this suit for defamation. Even if it is taken as a composite action for declaration perpetual injunction and damages against the defendant’s alleged wrongful action and/or decision then the cause of action relating to the aforesaid reliefs and/or averments has not arisen at least it has not been averred in the plaint within jurisdiction of this Court. The decision for not entertaining the tender of the plaintiff and further decision for taking penal measure followed by “holiday listing” of the plaintiff, have taken place outside the territorial limit of this Court. Admittedly the defendant has no place of business within the territorial limit of this Court going by the averment in plaint.
12. So on the above ground also the suit cannot be maintained.
13. Now question remains whether by filing an application for extension of time to file written statement the plaintiff can be precluded from maintaining this application for rejection of this plaint or not.
14. In my view when there is inherent lack of jurisdiction going by the averment of the plaint, question of waiver and/or estoppel does not arise as averments made in the plaint do and can not confer any jurisdiction. So this application for demurrer action is perfectly maintainable.
15. On the aforesaid reasoning I reject the plaint on the ground nondisclosure of causes of action if it is a suit for defamation. If it is a suit for reliefs other than defamation then this plaint is liable to be returned and is hereby returned for presenting the same before the appropriate court upon payment of court fees of Rs. 10,000/- within seven days from the date of receipt of this order. In default thereof this suit shall stand dismissed.
16. All the pending applications in connection with the suit are hereby dismissed.
17. There will be no order as to costs.
18. Since I have rejected the plaint in terms of the judgment delivered today, all interim order passed in the suit stand vacated. Xerox certified copy of this judgment be made available to the parties on urgent basis if applied for the same.
104 CalWN 612