A .... Complainant Company having office in Kolkata W (Partnership firm) .... Accused No. 1 having office in Mumbai X (Partner of accussed no. 1) ....Accused No. 2 (residing in Mumbai) Y ( -do- ) .... Accused No. 3 (- do-) Z ( -do -) .... Accused No. 4 (-do ) August 2012 Meeting takes place between accused persons and complainant company in Mumbai for purchase of flats 19th September, 2012 Complainant company having office in Kolkata makes RTGS payment of 1.20 crores from Kolkata to bank account of Accused no. 1 in respect of purchase of 2 nos. flats in Mumbai project to be developed between L&T and the Accused no. firm 19th September, 2012 Mumbai Accused no. 1 issued allotment letter in respect of 2 flats wherein it specifies that possession will be handed over within 36 months therefrom. Flats sold under Maharashtra Flat Ownership Act October 2012 Mumbai Construction does not start October 2014 Mumbai - News item in newspaper and internet showing FIR filed against accused no. 2 in for fraudulently selling TDR rights by faking documents November 2014 Mumbai - News item in newspaper showing accused persons involved in a bank fraud case of Rs. 300 crores 18th December 2014 Complainant company sends letter to L&T seeking reply whether accused persons were entitled to sale flats in the said project January 2015 Complainant company receives letter from L&T stating that accused persons have no right to sell any residential flats in the proposed project and any sale made by accused persons is illegal and not recognized by them January 2015 August 2015 Criminal Case (private complaint) for cheating, criminal conspiracy and criminal breach trust filed by complainant company in Kolkata. (Cognizance taken by Court) Queries: 1. Complainant company wishes to file a money suit in now in 2017 in Calcutta High Court as complainant is based out of Kolkata and does not have any office / representative in Mumbai. Is the suit barred by limitation? Pls note: The accused firm last acknowledged receipt of money in their letter dated Jan 2015. 2. Will Court of Calcutta have the jurisdiction to entertain such money suit? Can it be shown that cause of action lies partly in Kolkata (money was sent from Calcutta). (Pls note: All defendants live in Mumbai) 3. Since the complainant favours Calcutta jurisdiction would it be worth trying the filing of suit in Calcutta (in the event of it being rejected for lack of territorial jurisdiction , then the suit can be transferred to Mumbai) 4. PLEASE PROVIDE ANY OTHER ADVICE SUCH THAT THE COMPLAINANT CAN FILE THE MONEY IN CALCUTTA Thanks Rahul Rampuria Kolkata +91.[deleted]
1) since accused has acknowledged receipt of money in January 2015 claim would not be barred by limitation
2) it is better to file suit in Bombay high court for recovery of money
3) flats were purchased in Bombay , money transferred to Bombay , allotment letter must be containing a clause that in event of dispute would be subject to jurisdiction of courts at Bombay only
4) you. Should not take the risk of filing suit in Calcutta
1.The civil suit for recovery of money can be filed in Kolkata. If there is written acknowledgment of this monetary transaction during the last three years then the suit is not barred by limitations. In your case it is perfectly in time.
2. it can be filed ewither in Kolkata or in Mumbai.
3. The suit is maintainable in Kolkata. in any event the case always be refiled in Mumbai later on.
4. Same as above.
If you are from Kolkata you may feel free to contact me at [deleted] to take this forward.
Dear Querist
My opinion on your queries are as under:
Queries:
1. Complainant company wishes to file a money suit in now in 2017 in Calcutta High Court as complainant is based out of Kolkata and does not have any office / representative in Mumbai.
Opinion: it is possible, if complainant satisfied the court that there is any cause if action has been arisen in Kolkata.
Is the suit barred by limitation? Pls note: The accused firm last acknowledged receipt of money in their letter dated Jan 2015.
Opinion: the limitation for filing civil suit for recovery is three years hence not barred by limitation.
2. Will Court of Calcutta have the jurisdiction to entertain such money suit? Can it be shown that cause of action lies partly in Kolkata (money was sent from Calcutta). (Pls note: All defendants live in Mumbai)
Opinion: yes, as per section 19/20 of CPC.
3. Since the complainant favours Calcutta jurisdiction would it be worth trying the filing of suit in Calcutta (in the event of it being rejected for lack of territorial jurisdiction , then the suit can be transferred to Mumbai)
Opinion: yes, it can be transferred but chances for transfer is very less then entertain and tried by Kolkata court.
4. PLEASE PROVIDE ANY OTHER ADVICE SUCH THAT THE COMPLAINANT CAN FILE THE MONEY IN CALCUTTA
Opinion: first of all, immediately issue a legal notice and demand your money back and if the builder or company is not ready to make payment within notice period then file a civil suit for recovery against them in civil court.
Time limitation shall be start from refusal of demand, hence file the case, the matter is within the limitation.
Feel free to call
Query wise Answers
1: Yes the company may file money suit provided the registered office of the company or the bank branch effecting the transfer of funds falls within the territorial jurisdiction of the Original Side of The Kolkata High court ie a 8 km radius from the High court.
The suit is not barred if it is as you say that there is a Acknowledgement of receipt of money in 2015. Also other communications too may revive cause of action.
2. Yes they will. As jurisdiction in a suit lies not only at the place of residence of the defendant/respondent but also at a place where cause of action or part of that cause of action arises.
3. yes later that can be done with leave of the court and that is the usual practice but however if what you say is true and correct then chances are that the Calcutta court will not reject the plaint.
4. You should shed more light on the progress of the criminal complaint sine your rightful claim may also have crystallised in such proceedings.
Thank you everybody for your opinion. Addtional query : 1. How can the complainant company show that the cause of action partly arose in Kolkata ? As the meetings were primarily held in Mumbai, and the defendants are living in Mumbai, will the complainant company's contention that cause of action partly lies in Kolkata be admissible in courts. It is fair to assume that some events that led the complainant company to part with consideration must have occurred in Kolkata. and that events in Mumbai alone would not have induced the complainant company to make the payment of consideration. But the complainant company does not have these events recorded in the communications with the defendants as they were not necessary at that point of time. For example, there were several instances of negotiations that took place between Calcutta and Mumbai over phone and an instance when one of the accused persons was in Kolkata to meet the complainant company. However, the complainant company has not kept these documented anywhere for the purpose of proving cause of action. In the above circumstances the what should be the complainant company's pleading / averments before the court to satisfy it that the place of cause of action indeed partly arose in Kolkata. 2. Will admission of the criminal matter be a ground for proving that cause of action arose (partly) in Kolkata. Thank you everyone.
1) admission of criminal mater is not ground for proving the cause of action arose in kolkata
2) in your plaint you should mention that negotiations took place in kolkata , the Defendant visited Kolkata for purpose of finalising the deal
3) however as advised earlier better file summary suit in bombay
1. Complainant company wishes to file a money suit in now in 2017 in Calcutta High Court as complainant is based out of Kolkata and does not have any office / representative in Mumbai.
Is the suit barred by limitation? Pls note: The accused firm last acknowledged receipt of money in their letter dated Jan 2015.
For money recovery suit, it is not barred by limitation. The time limit is 3 years.
2. Will Court of Calcutta have the jurisdiction to entertain such money suit? Can it be shown that cause of action lies partly in Kolkata (money was sent from Calcutta). (Pls note: All defendants live in Mumbai)
I am afraid that since cause of action has taken place in Mumbai alone, the territorial jurisdiction may fall within Mumbai.
3. Since the complainant favours Calcutta jurisdiction would it be worth trying the filing of suit in Calcutta (in the event of it being rejected for lack of territorial jurisdiction , then the suit can be transferred to Mumbai)
The complaint can be filed in Calcutta on a trial and error basis, but it should be remembered that the territorial jurisdiction will fall within Mumbai limits.
4. PLEASE PROVIDE ANY OTHER ADVICE SUCH THAT THE COMPLAINANT CAN FILE THE MONEY IN CALCUTTA
You may consult a local advocate who shall be having some other idea by which at least you can penetrate inside.
n the above circumstances the what should be the complainant company's pleading / averments before the court to satisfy it that the place of cause of action indeed partly arose in Kolkata.
All those things what you mentioned may appear to be nice for an argument between individuals but law requires evidence.
It is clear from the fact that the accused hails from Mumbai and the the deal was about the property situate in Mumbai and the payment was made at Mumbai, therefore where is the justification before court for pleading the jurisdictional point.
2. Will admission of the criminal matter be a ground for proving that cause of action arose (partly) in Kolkata.
Your insistence for jurisdiction in Kolkata alone may not fetch you the desired result hence think properly before filing any case in Kolkata.
1. In the instant case can it be shown that even part of cause of action arose in Kolkata? Since the money was paid from the Plaintiff's office at Kolkata and the plaintiff learnt (through Defendant's letter addressed to Kolkata office) that the defendant company did not have the right to sell flats, does part of cause of action arise in Kolkata? Were plaintiff's rights infringed in Kolkata? Can the importance of Kolkata (as place of part of cause of action) be established by the fact that money was paid from Kolkata (though received by defendant in Mumbai). L&T , the joint venture partner of the defendant company in the said real estate project, too communicated to the plaintiff company at its Kolkata office that the defendant company did not have a right to sell flats in the Project. Does it establish Kolkata as the place part of cause of action? 2. Can it be said there was indeed a deal ( as put forth by Advocate Mr. T Kalaiselvan) or a contract executed between the plaintiff company and the defendant company in strict sense? The plaintiff company could not have performed the obligations of the allotment letter issued by it. Can it be then said that there was a valid contract/ deal between the plaintiff and the defendant? If not, can it be said that any cause of action pertaining to the purported contract (for immovable property) arose in Mumbai? 3. How relevant is the place of execution of the allotment letter (Mumbai, in this case) ? Is the allotment letter rendered void since the defendant company did not have the right to sell. 4. Is it a material fact that that the plaintiff has been cheated? Does it establish Kolkata as the place of part of cause of action? 5. Can it be said that the Plaintiff company, being an entity based in Kolkata, was cheated at its office and that part of cause of action arose in Kolkata. 6. Can it be said that part of cause of action (in civil suits) arises at the place where the amount is returnable / refundable (in this case Kolkata)
you can argue that part of cause of action arose in kolkata as negotiations had taken place in kolkta , funds were transferred from kolkata ,
2) there is a contract between plaintiff company and the defendant
3) funds were received in mumbai , allotment letter issued in Mumbai so part of cause of action has arisen in Mumbai
4) plaintiff has been cheated by the defendant as no flats were allotted within the stipulated period of 36 months .
5) because plaintiff has office in kolkata means that part of cause of action has arisen in kolkata .
1. In the instant case, the property is situated at Mumbai, the accused are residents of Mumbai and the consideration also have been credited to their accounts at Mumbai. So, the case shall have to be filed at Mumbai in absence of the accused Company's having no office at Kolkata. The suit will not be barred by limitation up till now.
2. I do not think that High Court of Calcutta will accept the ground that it has the jurisdiction to deal with the case simply because the money was sent from Bank a/c at Calcutta.
3. You can file the suit before Calcutta High Court accusing that (with some evidence if possible) they or any one of them had come to Kolkata to discuss about the matter with you and examine the possibility of its being accepted to be hear by Calcutta High Court. If it is rejected ask for leave to file it at Mumbai and then file it before the Mumbai High Court.
4. You can lodge a police complaint at Kolkata under copy to D.C. bringing the charge of cheating and defrauding you and if police fails to take any action, you can file a writ petition against police inaction seeking relief. In such case, the accused may be arrested and brought to Kolkata for which it would have been easy for you to pressuring them to come to a negotiation with you for refunding your money taken by them.
1. The complainant is having office and bank account at Kolkata from where money was send and that they had received a letter from the accused addressed to their Kolkata office is no valid ground for claiming jurisdiction at Calcutta High Court.
2. If any of the accused was ever visited Kolkata to deal with the sale, it is adequate ground to show that part of the cause of action arose at Kolkata. Find out the name and telephone number of the said person and track him down from the Air or Railway booking/reservation list of that particular date which will serve as an evidence of his of his arrival at Kolkata. If you file a police complaint and develop rapport with police, they will find out the evidence in support of your said claim.
3. Registering the FIR against the complaint lodged by you, if any or the admission and hearings of the criminal case already filed by you shall be a supportive ground for you to claim that the cause of action partly arose at Kolkata.
1. Jurisdiction will not be decided based on assumption. You shall have to establish your claim by submitting evidence in its support. Claim that one of the accused arrived at Kolkata to negotiate with you to strike the deal submitting evidence in support of your said claim by availing the same through police and other soruces as suggested in my earlier post.
2. How did you come to know "project to be developed between L&T and the Accused no. firm'? Was there any brochure published by the said accused firm or was there any agreement signed by both the parties? If yes then certainly there was a deal struck by and between both the parties. If not then you shall have to establish with adequate details hoe did you pay them such a huge sum of money as part consideration for buying those flats.
3. Why only allotment letter, all agreements, letters, offers etc are void since the accused persons and the accused Company had no authority to deal with the said matter. Primarily it is clear that the cause of action arose at Mumbai since the property and the accused are residing at Mumbai. You can claim that part of cause of action arose at Kolkata on the grounds explained in my earlier posts.
4, 5 & 6. How cause of action is decided has been explained above. You shall have to establish the same accordingly.