1. In this case, the plaintiff sued as Receiver in Suit No. 30 of 1906 and para 9 of the plaint in that suit is as follows: 'The plaintiffs thereafter proceeded to get delivery of the goods deliverable under all the said contracts, when the vendors or some of them declined to recognize the plaintiffs and began to make difficulties. The first defendant accompanied the plaintiffs when they went to take delivery in order to prevent the vendors raising difficulties, when some of the vendors made deliveries to the plaintiffs or paid the amounts which had been settled for, but others refused to give delivery to the plaintiffs and it will be necessary to take legal proceedings against them.'
2. I cite this para as it appears that with regard to part of plaintiff's claim herein the defendants have declined to recognize the plaintiff. Ex. B, dated the 16th January 1905, was an order made whereby the present plaintiff was appointed Receiver with the powers therein conferred. Ex. C, dated the 20th September 1906, was a decree in Suit No. 30 of 1906, whereby the plaintiffs were in that suit declared assignees of all the contracts.
3. Now it appears that the Receiver Nathu Gangaram was a partner with the other plaintiff whose name was Ibrahim Currimbhoy and he had a son named Sherifbhoy, who apparently went in for a large amount of mercantile transactions and was eventually compelled to seek assistance of the firm of Nathu Gangaram in his difficulties. He borrowed from the firm a sum aggregating to Rs. 40,000 and in respect of that sum he assigned six contracts for gunny bags for Rs. G000 and thirty-eight other contracts for the same for Rs. 34,000.
4. There are only two contracts in question in this suit. One Ex. D, dated 22nd July 1905, for 200, bales and the other, Ex. E, dated 7th October 1905, for 600 bales, which are set out above.
5. Now on the face or rather on the back of these contracts assignments are made by Sherifbhoy to the plaintiff's firm. These two are contracts whereby Sherifbhoy had agreed to purchase from the defendants 800 bales in the various deliveries specified in the contracts. On the 6th November 1905, by Ex. No. 5, Sherifbhoy agreed to assign these various contracts to the plaintiff. On the 8th November 1905, by Ex. K., Messrs. Ardeshir, Hormusji and Dinshaw, wrote to the defendants giving them notice of the assignment and enclosed a letter from Sherifbhoy, say ing that he himself had assigned the contracts. The remaining contracts are in Ex. F.
6. Now it appears that in respect of the 200 bales, 50 bales had been delivered. In respect of the second delivery across contract was entered into, which is Ex. J. in the case. There, is no doubt, that by Ex. J a settlement had been arrived with regard to the 50 bales; of the 200 bales, 191 bales were delivered and 9 bales were settled for. The result of that settlement was, that a sum of Rs. 168-3 was due in respect of the above settlements. This sum comprised two items, one Rs. 55-11, the difference in respect of 9 bales settled for and Rs. 112-8, on account of the 50 baes settled for by Ex. J. On the 13th December 1905, a document was passed by Sherifbhoy in respect of these sums. (Ex. M).
7. This, therefore, is the first point in the case. The question being whether Sherifbhoy paid Rs. 168-3 with the consent and knowledge of the plaintiff herein.
8. Now the conclusion I have arrived at, having gone very carefully through the whole of the evidence, is, that the sum was paid in the presence of and to the knowledge of the plaintiff. Because I find that the plaintiff's Moonim was present on the occasion. As pointed out by Mr. Lowndes, it is very material to note, that all the delivery orders were in the name of Sherifbhoy and further that Sherifbhoy was at that time very hard up and he was apparently a man of shady character and one could perfectly understand why the defendants should have insisted on his being present to receive this money, although it was a very small sum.
9. I find that the plaintiffs claim fails with regard to this sum of Rs. 168-3.
10. Different considerations, however, apply to the other transactions in the case.
11. Plaintiff further claimed Rs. 2512-8 for the non-delivery of 200 bales under the second contract. Very conflicting evidence has been given upon this question, viz.-whether or not the plaintiff made a demand on the defendants to deliver on the 25th December. The conclusion I have come to on that point is, that the plaintiff did make such a demand. I find also that the letter containing such a demand was taken to the defendant's shop and was refused by them. I find also that a tender of the sum due was made on the following day and refused. On the 18th December 1905, Messrs. Ardeshir Hormusji and Dinshaw, by Ex. M, gave notice of demand of the delivery of 200 bales and on the 25th December, Sherifbhoy made a demand for delivery to him. I find that this letter of demand was delivered at the defendant's firm and refused by them. That is clear from Ex. T, which is the press copy of the letter, which is in Gujarati and by Ex. U, peon's book.
12. On the 27th December, by Ex. 0, Messrs. Payne & Co. replied to Messrs. Ardeshir Hormusji & Dinshaw. Ex. 7, dated the 30th December 1905, was written by Messrs. Captain and Vaidya, claiming delivery on behalf of Sherifbhoy from the defendants By Ex. P dated 28th December, Messrs. Ardeshir Hormusji & Dinshawsent their reply. On the 23rd January, defendant replied to Messrs. Ardeshir Hormusji & Dinshaw. Ex. Q is a long letter written by Mosssrs. Ardeshir Hormusji & Dinshaw which was followed by further correspondence.
13. There can be no doubt that the plaintiffs have been extraordinarily remiss in not disclosing the press copy of their letter and the peons book which had they boon disclosed might have led the defendants to consider their position. These exhibits were sprung upon the defendants. They were very material and certainly should have been disclosed.
14. The question I have to determine is, whether the defendants were justified in refusing delivery to the plaintiffs.
15. The first point to consider with regard to that is, the point argued at considerable length, whether contracts of this nature are assignable. The case of Tod v. Lakhmidaa ILR (1892) 16 Bom. 441 was cited for the defendants. But in Niladhar v. Magniram (1875) P.J. 164 Sir Michael Westrop agreeing with the two cases Kadarhacha Sahib v. Rangasvami Nayak (1863) 1 M.H.C. 150 and Ganguly v. Ancha Bapulu ILR (1881) Mad. 76 has held that such contracts are assignable. And when Sir Michael Westropp referred to these cases, Mr. Macpherson conceded the point -a thing he was not likely to have done if it had been arguable. It however appears that the case of Niladhar v. Magniram (1875) P.J. 164 was not cited to Farran, J. in Tod v. Lakhmidas-if it had been, he would have discussed it, if not followed it, because it is in conflict with the judgment in Tod v. Lakhmidas. The question now seems to be quite clear by the Amending Act (II of 1890) of the Transfer of Property Act of 1882 and assignments can now be effected by notice. I read the section and definition of 'actionable claim.' The point was discussed very recently by Justice Sale, in Jafer Meher All v. Budge Budge Jute Mills Co. (1906) I.L.R. 33 Cal. 702, where it is put in the form of semble as follows: (The case being decided on another ground):
The benefit of a contract, that is, the beneficial right or interest of a party under the contract and the right to sue to recover the benefits created thereby, are assignable provided that
(a) the benefit is not coupled with any liability or obligation that the assignor is bound to discharge, and
(b) the contract has not been induced by personal qualifications or considerations as regards the parties to it.
15. This view is in my opinion correct. Now in the present case the only thing that the defendants had to do was to see these goods, payment being tendered. Mr. Lowndes expressly disclaimed any question of 'personal qualification' herein.
16. Now, it appears to me, the defendants were wrong having regard to the out and out assignment on the 8th November, notice of which was given to them. They were wrong in refusing to deliver to the plaintiffs. No doubt they were in an awkward position. They got notice from Sherifbhoy and also from the plaintiff's attorneys. Their proper course was either to file an interpleader suit or to have insisted on the presence of Sherifbhoy at the delivery to the plaintiffs, as they did with regard to the sum of Rs. 168-3-0. Instead of this they simply tell the plaintiffs, we decline to deliver to you-we are not going to recognize you at all. After this conduct, I must find that the defendants were to be blamed and that therefore they are liable in respect of the non-delivery of 200 bales.
17. [Here his Lordship recorded his finding on the issues].
18. As regards the Rs. 116-3 I dismiss the claim. I award their claim for damages to the extent of Rs. 2036-11-6.
19. I direct the plaintiffs do pay the defendants' one-fourth of the costs of the suit and the defendants do pay the plaintiffs three-fourths of the costs of the suit.
20. Although that may not be proportionately accurate, I make the order because I certainly do think that the plaintiff was entirely in the wrong in not disclosing documents relevant to the claim and which might on discovery have led the defendants not to raise the defence they did as to the 200 bales.
21. Interest on Judgment at one per cent.