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Jethabhai Versey and Co. Vs. Amarchand Madhavji and Co. - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Suit No. 2142 of 1920
Reported inAIR1924Bom90; (1923)25BOMLR713
AppellantJethabhai Versey and Co.
RespondentAmarchand Madhavji and Co.
civil procedure code (act v of 1908), sections 25 and 151 - slaying suit if vexatious and oppressive-cause of action, documents and witnesses out of jurisdiction-accessible court elsewhere.;the court will stay an action, brought within the jurisdiction, in respect of a cause of action arising out of the jurisdiction, if satisfied that no injustice will be done thereby to the plaintiff, and that the defendant would be subjected to such injustice in defending the action as would amount to vexation and oppression, to which he would not be subjected if an action were brought, in another and accessible court, where the cause of action arose. ;logan v. bank of scotland (no. 2) (1908) i.k.b. 141; mchenry v. lewis (1882) 22 ch. d. 397 and in re norton's settlement [1906] 1 ch. 471 followed. ;the.....marten, j.1. in this suit i have now to determine preliminary issue no. 4.2. if that issue should be answered in the negative, then i have to give general directions as to how the trial of the remaining issues nos. 5 to 13 should be proceeded with, having regard to the fact that all the suit transactions took place in rangoon and that substantially all the witnesses and documents are in rangoon. [his lordship then referred to the disposal of the first three issues and proceeded:]3. to explain issue no. 4 i should state the following facts. the suit is brought by jethalal versey & co. against amarchand madhavji & co. (a) for an account of the dealings between the parties for the samvat years 1975 and 1976 (1918-20) and for payment of what may be found due on that account ; (6) for.....

Marten, J.

1. In this suit I have now to determine preliminary issue No. 4.

2. If that issue should be answered in the negative, then I have to give general directions as to how the trial of the remaining issues Nos. 5 to 13 should be proceeded with, having regard to the fact that all the suit transactions took place in Rangoon and that substantially all the witnesses and documents are in Rangoon. [His Lordship then referred to the disposal of the first three issues and proceeded:]

3. To explain issue No. 4 I should state the following facts. The suit is brought by Jethalal Versey & Co. against Amarchand Madhavji & Co. (a) for an account of the dealings between the parties for the Samvat years 1975 and 1976 (1918-20) and for payment of what may be found due on that account ; (6) for immediate payment of the amount appearing to the credit of the plaintiffs in the defendants' books and for production and full inspection of such books; and (c) for an order on the defendants to hand over the plaintiffs' goods in the defendants' possession. [His Lordship then dealt with the pleadings and the history of this suit, and continued:

4. Now the facts which are admitted or proved here are shortly as follows. The parties come from Cutch or Kathiawar, but their businesses are mainly elsewhere. The disputed transactions between the parties are (a) in gunny bags, and (b) in rice. The transactions in gunny bags number about 100 to 125 and amount in all to about three to four lacs of rupees. The transactions in rice are about 500 or 600 and amount to nearly rupees fifty lacs. All the transactions took place in Rangoon, and all the instructions for these transactions were given in Rangoon to the defendants by Khimji and Tokersey. Khimji was admittedly a partner in the plaintiffs firm. It is in dispute whether Tokersy also was a partner in the plaintiffs firm. Further, the moneys in respect of these transactions were paid in Rangoon and all deliveries were given or taken there. Substantially all the books of account and vouchers relating to the suit transactions are at Rangoon. Further, the other parties to the transactions are all merchants in Rangoon and consist of Chinese, Burmese, Europeans and Madrasis. The books of the Chinese and Burmese merchants are written in the Chinese and Burmese languages respectively, while the Madrasi books are in Tamil. It is not practicable to get business mea to come from Rangoon to Bombay to give evidence, for the journey takes about eight days if a traveller goes via Calcutta. I think it would probably take longer if he went by Colombo unless he was fortunate in meeting connecting boats.

5. It is in dispute whether the plaintiffs are acting bona fide in persisting in having this suit tried in Bombay. They contend that the transactions in question were the private ventures of Khimji and Tokersey, and that they are now hostile to them. The defendants allege that the suit is being continued in Bombay in order to harass the defendants and so force them to some settlement, which they would not otherwise agree to ; that the plaintiffs are wanted by their creditors both in Bombay and in Rangoon and have decrees out against them in Bombay ; and that that is the real re anon why they have remained in Cutch and have put forward requests for adjournment; and that under all the circumstances it would amount to a denial of justice if they were forced to have the matter tried in Bombay.

6. The plaintiffs have called no evidence, hut the defendants have called their Rangoon partner Jivandas Sevchand. It appears from his evidence that in the rice transactions a question will arise on the local law of Rangoon with regard to the rice control. It would appear that in these rice transactions the plaintiffs have been debited and credited with certain bonuses. The defendants say that this is in accordance with the practice in Rangoon and that this practice was not an infringement of the local regulations Whether that be so or not would be eminently a matter for the Rangoon High Court to determine, if possible.

7. Then the same witness in answer to the Court made a statement which might be liable to misconstruction. He said: 'If a commission was sent to Rangoon to take all the evidence, we should have no objection. If all the evidence is taken there, we have no objection:' Then on being cross-examined he said: 'If all evidence were taken on commission, we should have no objection to being tried in Bombay.' Whereupon counsel for the plaintiffs said: 'I say now I shall have no objection to all evidence being taken on commission including this gentleman's.' What the witness meant there was, I think, that if all the evidence on both sides was taken on commission and no other evidence was allowed to be called at the trial, then his firm would not object to the Bombay Court determining the rights of the parties. But that was only a layman's reply, and as was pointed out by his counsel shortly afterwards, a commission to Rangoon would not prevent the plaintiffs from afterwards calling oral evidence at the trial in Bombay and thereby springing a surprise on their opponents and a surprise moreover which they might be unable to cope with by calling rebutting evidence.

8. Further, on March 2, 1923, when I asked counsel for the plaintiffs how he suggested the case should be tried, he said he wanted it to go before the Commissioner of this High Court in the ordinary way. Then when I said a Special Commissioner might have to be appointed to go to Rangoon and that provision must be made for his costs and that in the first instance those costs should be provided by the plaintiffs without prejudice to their ultimate incidence, counsel said: 'If I am to be asked to deposit costs here for a Special Commissioner I say I am not obliged to do so, and that if I am ordered to do so, I withdraw ray application to consent to Special Commissioner to Rangoon'. As to this, I will only say that if the Court has to appoint a Special Commissioner to go thousands of miles away to Rangoon and be engaged on a lengthy enquiry, such cash deposit must be made in order to provide for his costs. I am referring of course to his costs and not to the' coats of the parties. That being so, as it is the plaintiffs' suit and they have selected thin inconvenient forum of Bombay, it would seem only reasonable that in the first instance they should provide the initial Court costs necessary for the determination of this suit, just as if they were additional Court fees, leaving it to the Court hereafter to any how those costs should be ultimately borne. The plaintiffs have, therefore, once more put me in a position of difficulty. Their counsel has declined to accept the terms which were provisionally arranged on January 9, 1922, for selecting a limited number of items in the gunny bag transactions as a test to determine the liabilities of the parties, and have insisted on raising the point about the rise bonuses which is not expressly pleaded in their plaint. They have now created obstacles in the way of an alternative solution of the difficulty, viz., to send a Special Commissioner to Rangoon. They prefer to take up the position that if the defendants want a commission to Rangoon, they must first pay the estimated expenses thereof into Court under Order XXVI, Rule 15.

9. These then being some of the main facts, what is the law on the subject The jurisdiction under which I am asked to stay all further proceedings in this action is contained in Section 151 of the Civil Procedure Code, which runs:

Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

10. Appeals to the inherent jurisdiction of the Court have, I need hardly say, to be regarded with the greatest caution. But, if after exercising such caution the Court is clearly of opinion that the jurisdiction ought to be exercised, I do not think it should be intimidated from so doing, because no case on all fours is forthcoming from the reported decisions in the various High Courts.

11. The only Indian decision to which I have been referred is that of Geffert v. Ruckchand Mohla I.L.R. (1888) 13 Bom. 178 where under the then existing Code there was power for the Court to stay a suit if 'it is satisfied that justice is more likely to be done by the suit being instituted in some other Court'. That was a suit for a libel published in the Bombay Gazette, Accordingly the cause I of action arose in Bombay. The learned Judge refused to stay the suit merely on the ground that the libel related to the alleged wrongful dismissal of the plaintiff from his employ, which was the subject of another suit between the same parties in a District Court, where most of the witnesses were living. With great respect I entirely follow that decision, bat it is of little assistance to me here. In the present case, substantially the whole of the cause of action arose in Rangoon.

12. On the other hand, Mulchand Raichand v. Gill and Co. : (1919)21BOMLR963 is an instance where this Court restrained the defendant in a Bombay High Court, suit from prosecuting against the plaintiff and others a suit in an up-country Court which had been instituted some twelve days before the High Court suit. There Mr. Justice Macleod, who was the trial Judge, said at p. 966:

I am...prepared to hold that in the circumstances of this case justice requires that an order should go against the defendants in this Court in perm sonam from proceeding with the suit in the Bijapur Court. All the evidence required for the purpose of deciding the dispute would be in; Bombay,... It is quite clear that this case should be tried in Bombay. It would be a most undesirable precedent that commission agents in Bombay who make advances to up-country merchants on their cotton should be dragged to up-country Courts in oases of dispute which may occur between them on these transactions.

13. That decision was confirmed on appeal for the reasons there given.

14. Turning next to the English decisions, I find that the broad basis on which the jurisdiction is exercised, may be summarised as follows, viz., that the Court will interfere to prevent vexatious proceedings which would have the effect of preventing the due administration of justice. Thus in McHenry v. Lewis (1882) 22 Ch. D. 397 Lord Justice Bowen at pp. 407-108 said:

I agree that it would be most unwise. to lay down any definition of what is vexatious or oppressive.... I would much rather rest on the general principle that the Court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end.

15. Then in the same case Lord Justice Cotton at p. 406 said:

In the first place, it is a jurisdiction which one ought to exercise with extreme caution. Stopping in the middle of a suit a plaintiff from going on when he has a right of action as against the defendant, is a jurisdiction which has to be exercised with very considerable caution.

16. Those principles were more particularly considered by the Court of Appeal in Logan v. Bank of Scotland. (No. 2) [1906] 1 K.B. 141. The headnote runs:

The Court will stay an action, brought within the jurisdiction, in respect of a cause of action arising out of the jurisdiction. if satisfied that no injustice will be done thereby to the plaintiff, and that the defendant would be subject to such injustice in defending the action as would amount to vexation and oppression, to which he would not be subjected if an action were brought, in another and accessible Court, where the cause of action arose.

17. The suit there was for 50 damages for misrepresentations in a prospectus. The name of the Bank of Scotland appeared on the prospectus as the bankers of the Company, and accordingly they and their treasurer and certain directors of the Company were sued as defendants. The writ, was served on the London branch of the Bank of Scotland and also on one of the directors who was resident there The Bank applied to stay all further proceedings in the action on the ground that it was vexatious and oppressive and an abuse of the process of the Court. Lord Gorell pointed out that the action was purely a Scottish action and all the transaction which gave rise to the alleged cause of action took place exclusively in Scotland, and that all the parties to the action resided in Scotland, with the exception of the defendant Scott, who appeared to reside in London. At p. 147 the learned Judge said:

If this action he fought out, it is obvious that it will involve calling a large number of witnesses, all of whom reside in Scotland, and none in England, and the production of numerous books, documents, and paper e relating to the matters in question in Scotland...and it in perfectly clear that a case of this kind ought, if possible, to be tried in Soot land, and that the inconvenience and difficultly placed upon the defendants in conducting the case in England would be so great HS to put a great oppression upon them if they were obliged to produce and keep their witnesses and documents, &c.; in London during the time such a trial as that which would take place would last.

18. Then, after referring to the cases I have mentioned, the learned Judge stated at p. 150:

The difficulties which arise in the exercise of this power of the Court do not appear to be so much difficulties in stating the law as difficulties in administering or applying it. The Court should, on the one hand, see clearly that in stopping an action it does not do injustice, and, on the other hand, I think the Court ought to interfere whenever there id such vexation and oppression that the defendant who objects to the exercise of the jurisdiction would be subjected to such injustice that he ought not to be sued in the Court in which the action is brought, to which injustice he would not to subjected if the action were brought in another accessible and competent Court

19. Then at p. 151 the learned Judge proceeded:

It seems to me clear that the inconvenience of trying a case in a particular tribunal may be such as practically to work a serious injustice upon a defendant and vexatious. This would probably not be so if the difference of trying in one country rather than in another were merely measured by some extra expense; but where the difficulty for the defendant of trying in the country in which the action is brought is such that it is impracticable to properly try the case by reason of the difficulty of procuring the attendance of busy men as witnesses, and keeping them during a long trial, and of having to deal with masses of books, documents, and papers which are not in the country where the action is brought, and of dealing with law foreign to the tribunal, id appears to me that a case of vexation in some circumstances may be made out if the plaintiff chooses to sue in that country rather than in that where everybody is and where all the witnesses and material for the trial are.

20. Then, after referring to the possibility of suing in England a Bank whose head office was in Australia or Brazil in respect of transactions which took place in Australia or Brazil, the learned Judge continued (p. 152):

This matter is, in this respect, of genera importance, because so many banks and other mercantile houses which are established in our Colonies and in the United States and other foreign countries have branches here. To a business concern to allow actions to proceed in such circumstances when there is a proper and adequate tribunal in the place where both parties really are, And dealt with each other, and all the evidence is, would be intolerable. In the present case, apart from that question about Scott, it is difficult to conceive anything more harassing to the defendant Bunk than to have their officials dragged up to London for a lengthy trial, when the Court of Session is, so to speak, across the way in Edinburgh...All this to my mind is not measured by mere expense.

21. Accordingly the Court stayed the suit in that particular case.

22. In the other two suits to which I will refer, the alleged cause of action arose curiously enough in India. One is Egbert v. Short [1907] 2 Ch. 205 a decision of Mr. Justice Warrington. The other is In re Norton's Settlement [1908] 1 Ch. 471, a decision of the Court of Appeal. In both cases suits were commenced in England by a wife against her husband or trustee, and the defendant applied for and obtained a stay on the ground that they were vexatious and that the disputes should more properly be tried in India. Substantially the decisions were applications of the principles referred to in the above Bank of Scotland case, but I may quote what Lord Justice Vaughan Williams said in In re Norton's Settlement at p. 479, viz.:

I wish to say, further, that the undoubted inherent jurisdiction of the Court to stay proceedings on the ground that they are an abuse of the process of the Court should always be exercised with the greatest care and caution. As I have already pointed out, in order to justify a stay it is, as a rule, necessary that something more should exist than a mere balance of convenience in favour of proceedings in some ether country. In my opinion it must be proved to the satisfaction of the Court that either the expense or the difficulties of trial in this country are so great that injustice will be done-in this sense, that it will be very difficult, or practically impossible, for the litigant who is applying for the stay to get justice in this country. Speaking generally, one may say that the litigant must shew that some injustice will be done to him. There is also another consideration to be borne in mind. If the Court, taking all the facts into consideration, came to the conclusion that a plaintiff in commencing an action in this country has not done so on account of any legitimate advantage which a trial in this country will give him, but for purposes entirely foreign to that legitimate purpose, then, apart from any question as to expense or inconvenience, in any opinion not only has the Court jurisdiction, but it is its duty, to stay the proceedings.

23. Applying then the test laid down by Lord Justice Vaughan Williams, are either the expense or the difficulties of trial in the Bombay High Court so great that it would be very difficult or practically impossible for the defendants to get justice in this Court I quite accept that mere inconvenience is not sufficient. It is clear to my mind that putting the matter in the most favourable way to the plaintiff, it would be most inconvenient to the defendants to have this suit tried out in Bombay. This inconvenience will in the main fall on the defendants, for the plaintiff is in the happy position that he is entitled to call upon the defendants as his commission agents to account for the proceeds of his goods that have been bought or sold on his account. He may accordingly remain safely in Cutch and merely instruct his counsel and solicitors to require the defendants to prove strictly every single item in their accounts, and produce all necessary books, vouchers, etc. If, therefore, this Court had a complete discretion as to where this suit should be tried, I should undoubtedly hold that it ought to be transferred to and tried in the present High Court of Rangoon.

24. But does this case go further than mere inconvenience? In my opinion it undoubtedly does. What Lord Gorell has stated with reference to the officials of the Bank of Scotland applies in a considerable degree to the defendants' business at Rangoon. But one must remember this that whereas Edinburgh is only some eight hours by rail from London, Rangoon is some eight days journey from Bombay. And in the English suit there was no difficulty about languages. Here the evidence is that the defendants will require Burmese, Chinese and Madrasi merchants to produce their books, all of which are written in their own languages. But Burmese and Chinese witnesses are practically unknown in our Courts and Tamil-speaking witnesses from Madras are rare. We have no Court interpreters who know any of these languages. Consequently special arrangements will have to be made for the necessary official translations of all these documents and the oral evidence of the witnesses. It is to my mind clear that in any event a commission would have to go to Rangoon. It would be monstrous to say that the defendants must either do the impossible, that is, require independent business men to travel from Rangoon, or else have their evidence shut out. And even if a commission were issued, I think when it returned, the trial Judge or our High Court Commissioner might be in the greatest practical difficulty as to how he should proceed. The plaintiffs might call some oral evidence to answer which another commission might be necessary, and there is almost bound to be great practical difficulty about the books. Some of the defendants books are required for proceedings in Rangoon and in any event the defendants cannot be asked to forward recent books to Bombay, for they might easily be required any day in looking up or enforcing transactions with other parties. In this connection the defendants' witnesses no doubt admitted that they would not require the Samvat 1973 books for their daily business now and that there would be no hardship in bringing those books down. But the suit transactions are not in respect of the year 1973. They are for the Samvat years 1975 and l976 (1918-1920).

25. In short, I have to the best of my ability endeavoured to forecast what would be the probable course of events if I allowed this suit to proceed in the ordinary way. But in the result I can find no solution to satisfy my sense of what is required for the due administration of justice in the present suit, except to have the disputes tried at Rangoon where the High Court 'is so to speak across the way' as Lord Gorell put it in The Bank of Scotland case. I have already referred to the matter about the local law of Rangoon with reference to the rice control. That is an additional reason why the matter should be determined at Rangoon. Other reasons are the large aggregate numbers of the various transactions and the large sums involved.

26. Nor can I accept the plaintiffs' contention that all the matters in dispute can be tried by the Bombay High Court Commissioner on taking the accounts. A reference to the further issues (5-13) that have now been put in will, I think, show that there are many points which ought to be dealt with by the trial Judge and not left to the Commissioner. For instance, the initial dispute as to the authority of Tokersey and Khimji and as to whether these transactions were on behalf of the plaintiffs or were private ventures of their own, are matters for the trial Judge and not for the Commissioner on taking the accounts.

27. But there is one important distinction which must be taken into consideration in this case and that is that this suit was not wholly vexatious and oppressive at the date of its institution in August 1920, because it has at any rate resulted in the defendants paying a sum of Rs. 33,545 in February 1921 and offering to pay the plaintiffs taxed costs up to that date. But that does not in my opinion conclude the question as to whether or not the suit is oppressive as from February 23, 1921, or some later date. A suit may consist of two claims A and B, and be only oppressive as regards A. If, therefore, a defendant satisfies claim B, I do not see why he should be precluded from contending that claim A should be stayed. In the present case I think the suit was oppressive after February 2b, 1921, when the defendants paid the above sum and made the above offer.

28. I have so far dealt with the case irrespective of whether the plaintiff is acting from any indirect motive. The defendants say he is, and have put forward certain reasons which in my opinion afford justification for their contention. The plaintiff has not gone into the witness box, and I understood from his counsel's statement to me on March 2, 1923, that he is still in Cutch. The inference I draw from all the circumstances is that the plaintiff is acting from an indirect motive, and that he hopes by remaining in Cutch to avoid all inconvenience to himself, and yet at the same time by continuing the proceedings in Bombay to put his opponents to such disadvantage and to such oppression that they will either be forced to some compromise or else may run a serious risk of an adverse judgment in the absence of evidence which would be available for them at Rangoon, though not in Bombay.

29. My conclusion then is that I ought to make an order to the following effect. The plaintiff is to be at liberty to withdraw this suit under Order XXIII, Rule 1, but in default of his so doing within the time limited for presenting an appeal, all further proceedings in this suit will be stayed. But this is to be on terms. The defendants must pay the whole of the costs of the suit up to February 28, 1921, when they paid the cheque for Rs. 33,545 and offered to pay the costs up to date. As regards the subsequent costs of the suit, these will be paid by the plaintiffs, and there will be a set-off as to costs. In view of the offer of February 28, 1921, I do not think it would be fair to make the defendants pay the costs down to their filing of their supplemental written statement. Then there must be an undertaking by the defendants that they will raise no technical defence to the plaintiffs suing the Rangoon firm in Rangoon, even though y the plaintiffs have elected in the present suit to sue Amarchand Madhavji & Co. of Bombay alone, and not all the partners in the Rangoon firm. There must also be an undertaking by the defendants that if the plaintiffs sue them in Rangoon, they will not ask for further security for costs against the plaintiffs as being foreign plaintiffs. These undertakings, defendants counsel have already expressed their willingnes to give, viz., on January 9 and 20, 1922. Execution of this order is to be stayed for the limited time allowed for the presentation of any appeal by the plaintiffs from this order, and if any such appeal is presented, then pending the hearing of such appeal or until the further order of the Court. In any eventthe plaintiffs are to beat liberty to take such proceedings in the High Court of Rangoon in respect of the subject-matter of this suit or any part thereof as they may be advised.

30. Issue No. 4 will accordingly be answered 'yes, after February 28, 1921, but any stay is to be upon the terms set out in the judgment of the Court'.

31. In conclusion I should refer to one further point. On March 2, 1923, in answer to a question from the Bench as to the powers of transfer of suits in India, Mr. Davar was good enough to refer me to Section 25 of the Civil Procedure Code. This section enacts that:

Where any party to a suit...pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the Governor-General in Council, who may, by notification...transfer such any other High Court.

32. That section was not material at the previous hearings because the Rangoon Court was not then a High Court. But now it is. Accordingly this section affords a possible alternative remedy in cases where the Court considers that its inherent jurisdiction to stay suits is not applicable. Counsel were unable to refer to any decided case on the operation of Section 25, but cited the corresponding provision in Section 527 of the Criminal Procedure Code, where a transfer may be directed by the Governor-General in Council 'whenever it appears to him that such transfer will promote the ends of justice or tend to the general convenience of the parties or witnesses'. I do not propose to decide what in general would be reasonable grounds for objection within the meaning of Section 25. But I am satisfied that the section does not apply or at any rate should not be confined to objection ,to a particular Judge personally, e. g., that previously while at the bar he has advised one of the parties. In such a case all difficulty would be met by the case being tried before another Judge of the same High Court. Consequently the abjection in question must I think apply to the High Court as a whole. That being so, it would seem probable that the test for a transfer would be much the same as I have already indicated for a stay of a suit under Section 151 of the Code, or alternatively, the rather more lenient test adopted in Section 527 of the Criminal Procedure Code.

33. In fact, however, no formal objection has been made to me by the defendants Under Section 25. I have suggested it to their counsel but have not pressed it. In the view I take there is a remedy under Section 151, and accordingly the more cumbrous procedure of Section 25 should not be adopted, despite the fact that some saving in costs might be effected by a transfer as opposed to a stay and a fresh suit.

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