1. In this case I think I am bound to decide in favour of the plaintiffs, upon the authority of the case of The London, Bombay and Mediterranean Bank v. Hormasji Pestonji 8 Bom. H.C. R O.C.J. 200. The defence is, first, want of sufficient notice and, second, discharge from all liabilities under the Indian Insolvent Act. The only evidence that has been given has been with reference to the service, upon the defendant, of notice that his name would be included in the B. list of contributories in case he should not appear and show sufficient cause to the contrary, and of the further notice of the making of the call order of the 11th November, 1880, on the contributories whose names were included in the B. list. As to the balance order of the 24th February, 1881, it has been proved indeed, it is admitted by the defendant-that it was personally served upon him in Bombay. The previous notices, however, were sent to him by post. Mr. Stead, the plaintiff's agent in Bombay, has told us that these notices, like all other similar notices issued in connexion with this winding up, came to Bombay from England in envelopes already addressed; and he on reference to his books, swears that he posted them himself in the post office in Bombay after comparing the addresses on the envelopes with those entered in the list appended to the Chief Clerk's certificate. The notices to the defendant were addressed to 'Burjorji Sorabji Lywalla, Broker, Surat'; and Mr. Stead gives us the dates on which they were posted by him, viz., the 30th September 1879, the 21st September 1880, and the 28th January 1881.
2. Now the defendant's case is, that he never received these notices. He denies that he' resides at Surat. He says he carries on the business of a broker in Bombay that he lives in Bombay for the greater part of the year. He admits, however, that since his insolvency in 1867 he has been in the habit of going to Surat every year, and of residing there with his family for periods varying from a few days to one or two months. It appears that members of his family live in Surat in what he calls his 'family house.' His wife and children, his sisters and his mother all permanently live there, and on the occasions of his annual visits to Surat the defendant resides with them.
3. From a letter written by him to Mr. Stead in 1876 it appears that the defendant was then in Surat, and Mr. Stead has sworn that be went himself to Surat in 1878 on business connected with the claims of the bank upon contributories there, and that he then had an interview with the defendant at his family house. Accordingly, the notices which I have mentioned, and which were, subsequently to that interview, addressed to the defendant, were sent to Surat, being also endorsed with the defendant's Bombay address as given by him, for registration, to the company as the place where he had previously resided. None of those notices were ever returned through the post office: so it is clear that they were delivered, and were retained by somebody; end I am satisfied that they were delivered at the defendant's family house; and as the defendant had left his registered Bombay address, I think delivery at Surat under the circumstances was sufficient. I think under these circumstances service upon the defendant has been sufficiently proved.
4. It must be borne in mind on this point that by the order (exhibit D) made by the Court of Chancery in England in the matter of the winding up of the plaintiff's bank on the 4th August, 1877, it was expressly ordered that service of any notice, order, or other proceeding in this matter, not requiring personal service, upon contributories in any part of India might be effected by post, 'to the last known address or place of abode,' and that personal service was not necessary. It may be added that on the 13th November, 1881, the defendant wrote, claiming exemption from liability on the ground of his discharge in the Insolvency Court, but in no way setting up the want of notice as a defence. The defendant, therefore, had notice of ,the proceedings in England, and his name was placed on the B list of contributories. Subsequently, the call order of the 11th November, 1880, upon these contributories was made, and on the 24th February, 1881, the balance order was made on which this suit is brought. Had the defendant appeared in the Court in England, and pleaded his discharge as an insolvent, it seems probable, from the authorities, that he could not have been placed on the list of contributories. The order for winding up the plaintiffs' bank was in 1866; the defendant's insolvency was in 1867; and his liability to the Company was a debt which might then have been proved against him. That being so, his discharge under Section 60 of the Insolvent Act would have been a good defence, and would have absolved him from further liability. But the defendant did not appear before the Courts in England and plead his discharge, and the orders I have mentioned have been made against him as a contributory; and the question is, whether, this Court can now give effect to that discharge. I do not think it can. The present suit is equivalent to a suit upon a foreign judgment, as appears from the case of The London, Bombay and Mediterranean Bank v. Hormasji Pestonji 8 Bom. H.C. R. O.C.J. 200 which is all authority binding upon me In that case it was laid down that the Courts in India must treat a call order made by the Court in Chancery upon a contributory of a company registered in England as a foreign judgment; and it is clear that in a suite upon a foreign judgment a defendant cannot be permitted to urge a defence which he had an opportunity of pleading in the foreign Court.
It does, no doubt, appear a hardship upon the defendant that he should be required to go to the trouble and exprense of apprearing before a Court in England, and putting forward his defence there. That, however, is the result of his having joined as English company subject to the jurisdiction of the English Courts. The local law and the forum of the Company's head office was accepted by the defendant on becoming a shareholder(1). The apparent hardship is not a matter which can affect the decision of this case.
As to the point raised by Mr. Kirkpatrick with reference to the effect of the order giving the plaintiffs liberty to bring a fresh suit, I am of opinion that the plaintiffs were not precluded from bringing the fresh action in its present form, and that the suit is properly framed.