While deciding a transfer petition concerning a commercial dispute (M/S Fumo Chem Pvt. Ltd. V. M/S Raj Process Equipments And Systems Pvt. Ltd. & Ors.) the Supreme Court observed that mere convenience of one of the parties is not a ground to transfer cases under Section 25 of the Code of Civil Procedure, 1908.

The matter was decided by a Single-Judge Bench comprising of Justice Aniruddha Bose through Video Conferencing.

The commercial dispute was about the supply of certain items. The respondent was to supply and install these items at the petitioner’s manufacturing facility. Upon failure of the respondent to meet the obligations the petitioners had filed an earlier suit in the Commercial Court, Ahmedabad seeking compensation and damages. Subsequently, another petition was filed by the respondent against the petitioner on the same matter in the Court of learned Civil Judge, Senior Division, Pune seeking specific performance of the commercial contract. In the apex court, the petitioner prays that this latter case is transferred to Ahmedabad.

Before the Supreme Court, the petitioner argued that both the suits involve the same issues between the same parties. The Counsel for the petitioner, Gaurav Goel, AOR, relied on the decision of the Supreme Court in the case of Chitivilasa Jute Mills vs. Jaypee Rewa Cement [(2004) 3 SCC 85] in support of his client's plea for transfer to enable both the suits to be tried in the same court. It was also argued that the Senior Executives of the petitioner’s company, against whom the subsequent matter is filed, are foreign nationals running their business in Ahmedabad and it will be an inconvenience to them to attend the proceedings in Pune.

The Court after considering the arguments put forth concluded that the arguments did not bring out a fit case to transfer the suit to Ahmedabad. The court observed that the parties have the right to appear before the Pune Court and argue that the subsequent suit will be barred by res sub-judice under Section 10 of the Code of Civil Procedure, 1908. Further, the court observed that there is no bar in the Code of Civil Procedure, 1908 an institution of two different suits in two Courts by the same set of parties on the same set of facts. 

The court observed that: 

“The factor which needs consideration while examining a plea for transfer in a petition under Section 25 of the code is whether allowing such petition would be expedient in the ends of justice or not. This Court has to consider the prayer for transfer with an element of equity. The petitioners’ case is largely founded on the claim of having approached a judicial forum before the respondents did and both the suits emanate from the same set of facts with the same set of parties. These factors, by themselves cannot be the ground for invoking the provisions of Section 25 of the Code.”

The court held that the obiter of Chitivilasa Jute Mills case does not apply to the case as the petitioner has not taken the argument of Section 10 of the Code of Civil Procedure, 1908. It was held that:

“The yardstick applied in entertaining transfer petition of an estranged homemaker having no independent income to bring a matrimonial action instituted by the husband to a Court within whose jurisdiction she has taken shelter in her parental home cannot be followed in commercial disputes. A petitioner seeking transfer of a case involving business-related disputes from one jurisdiction to another will have to establish some grave difficulty or prejudice in prosecuting or defending the case in a forum otherwise having power to adjudicate the cause.”

Thus, the court dismissed the petition without any award of costs.

[READ ORDER]