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The London Bombay and Mediterranean Bank Limited Vs. Bhanji Zutani and anr. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom116
AppellantThe London Bombay and Mediterranean Bank Limited
RespondentBhanji Zutani and anr.
Excerpt:
company - contributory--description--balance order--list of contributories--cause of action--evidence--amendment of plaint. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. .....in that case, implied the existence of more than one member of the firm; whereas the words here, 'devji bhanji, cotton merchant,' placed on the list 'in his own right,' imply the existence of only one individual trader.2. what the plaintiffs ask us to do, is to allow them to give evidence for the purpose of showing that devji bhanji, of whom the balance order speaks as one man, in the singular, was, in fact, two men, in the plural, and thus virtually to amend the record of the court of chancery, which we cannot do.3. nor, having sued the two defendants as partners on a joint liability, can the plaintiffs now be permitted, in the same suit, to proceed against one whom they allege to have signed as devji bhanji. that is a wholly different case from the other, and if plaintiffs were to be.....
Judgment:

Michael Westropp, C.J.

1. The balance order of 26th January 1871 is a part of the record in Chancery, and, as such, 'imports incontrovertible verity.' In Weikersheim's Case L.R. 8 Ch., Ap. 831, the Master of the Rolls did nothing contrary to what he found on the record, for the words Weikersheim & Co., in that case, implied the existence of more than one member of the firm; whereas the words here, 'Devji Bhanji, cotton merchant,' placed on the list 'in his own right,' imply the existence of only one individual trader.

2. What the plaintiffs ask us to do, is to allow them to give evidence for the purpose of showing that Devji Bhanji, of whom the balance order speaks as one man, in the singular, was, in fact, two men, in the plural, and thus virtually to amend the record of the Court of Chancery, which we cannot do.

3. Nor, having sued the two defendants as partners on a joint liability, can the plaintiffs now be permitted, in the same suit, to proceed against one whom they allege to have signed as Devji Bhanji. That is a wholly different case from the other, and if plaintiffs were to be allowed thus to have two strings to their bow, defendants would never know what case they had to meet. The plaintiffs commenced their suit against two individuals, and so stated their case to the learned Judge in the Court below. When they produced their balance order, they showed that the Court of Chancery had not made a firm, but a single individual, liable. They did not then ask to amend their plaint by making out a case against one only and striking out the other, but chose to retain both defendants on the record, and cannot be allowed to amend the plaint at this stage, and thus make quite a new case in the Court of Appeal. The decree must be affirmed with costs.


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