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V.R. Naik Vs. Balvant Sitaram Mahindre - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 50 of 1926
Judge
Reported inAIR1927Bom135; (1927)29BOMLR138
AppellantV.R. Naik
RespondentBalvant Sitaram Mahindre
DispositionAppeal allowed
Excerpt:
.....of a suit-suit in a native state-plaintiff in that suit enrtering an appearance as defendant in a suit filed against, him in the high court-jurisdiction of the high court, to stay plaintiff's suit in the native slate-practice-procedure.;defendant, a resident of the hyderabad state, lad filed a suit in that state against the plaintiff, subsequently he entered an appearance in a suit in respect of the same subject-matter filed by the plaintiff in the high court, and put in a counter-claim. the plaintiff obtained an order restraining the defendant from proceeding with, his suit in hyderabad. on appeal by the defendant :-;(1) that the high court had jurisdiction to grant an injunction as the defendant had submitted himself to the jurisdiction of the court by entering an appearance without..........circumstances of this case that that suit was either oppressive or vexatious. i wish here to point out that this does not appear to be the situation in which e. g., a commission agent whose claim has been practically admitted by his constituent, files a suit in bombay and is countered by a suit filed by the constituent in a foreign or up-country court. assuming always that the circumstances under which the court has jurisdiction to act in personam are satisfied, the court would, doubtless pass a proper order for stay in such a case.24. i agree the appeal should be allowed.
Judgment:

Amberson Marten, C.J.

1. This is an appeal from an order of Sir Norman Macleod restraining the defendant from proceeding with the suit No. 45 of 1335 Fasli year filed by him against the plaintiff in the Court at Nandod in the Dominions of His Exalted Highness the Nizam of Hyderabad pending the hearing and final disposal of this Bombay suit.

2. The appeal raises questions of some importance and difficulty, first, as to the jurisdiction of the learned Judge to make an order of that nature and, secondly, whether the jurisdiction was properly exercised on the materials before him. Unfortunately we have no judgment of the learned Judge and no personal notes of his. We are informed by counsel that the case was heard in the learned Judge's private room, and that, accordingly, it was impracticable for counsel to take notes of the judgment. However that may be, we regret that we are without the assistance which we should normally get and which we should particularly value in the present case.

3. Shortly stated the facts are that by a contract made in Bombay on August 16, 1923, the plaintiff agreed to sell certain machinery to the defendant for the use of the latter's factory at Nandod in the Hyderabad State. The specification, Ex. A, to the plaint, and the letter from the plaintiff of even date, Ex. 1 to the written statement, show that delivery was to be F.O.E. Bombay and that payment was to be made in Bombay, and that Rs. 12,500 were paid forthwith in part payment. Some disputes appear to have arisen between the parties as to the nature of the goods delivered, and, accordingly, we find by a letter of September 25,1924, Ex. B to the plaint, that the plaintiff was prepared tomake good a shortage in certain articles, and to allow a sum of Rs. 1,820 off the contract price. That letter stated that the shortage was to be supplied by the plaintiff to the Naik Factory at Nandod in fifteen days. But it seems to us that it was not intended that the terms of delivery of the main contract, viz., F. 0. R. Bombay, were thereby to be altered.

4. Then follows certain other correspondence in October 1924, which is set out in Ex. 2 to the written statement and there is certain other correspondence in September and November 1925 which is Ex. 5 to the written statement. I may here state that the correspondence has been set out in our paper book in an inconvenient way, for some of it is in one place and some in another. Then going to Ex. D to the plaint, one finds that by a letter of December 12, 1925, the plaintiff called on the defendant to pay Rs. 9,304 within seven days or otherwise the plaintiff would take proceedings to enforce payment. This resulted in the defendant instituting on January 6, 1926, proceedings in the Nandod Court the plaint in which is set out as Ex. A to the affidavit sworn on behalf of the plaintiff on April 19, 1926. This pleading claims a decree against the Bombay party for the recovery of the amount due to the Hyderabad party after going through the accounts of the Bombay party. It describes the Bombay party as being 'a resident of Latur in H.E.H. the Nizam's Dominions at present residing in No. 93 Fort Street Bombay.' It pleads an agreement by the Bombay party to deliver the machinery at Nandod, and also an agreement to replace certain articles and deliver them at Nandod, and that as it was agreed to supply the articles at Nandod and the oral promise was also made at Nandod the Court had jurisdiction to try the case. The pleading further says that unless the whole account is shown by the defendant the actual amount under dispute cannot be ascertained. The pleading alleges specifically that the cause of the complaint arose by the Bombay party not supplying machinery of the make and type as specified in the contract; that some parts were of Indian manufacture whereas they should have been of British make, and they were not delivered during the specified period, and some were booked to places other than Nandod, The pleading also states that the Hyderabad party will file another suit against the Bombay party for the loss suffered by the firm because the machinery and other articles were not delivered during the specified period.

5. It appears that the Bombay party was not served with notice of this Nandod suit until April 12, 1926, Meanwhile ho had instituted his present suit in this High Court on January 28, 1926, claiming the sum mentioned in his notice of December 12, 1925. The suit came on as a Short Cause on March 12, 1926, when a written statement was put in by the defendant and also a counterclaim. The suit was, accordingly, transferred to the Long Cause List and the hearing fixed for July 5. In that written statement the Hyderabad party sets out his case in great detail, and includes in it a portion which he had omitted from the Hyderabad suit, viz., a claim for damages for delay in delivery. And whereas his claim in other respects in the Hyderabad suit was for Rs. 2,000 his corresponding claim in the Bombay suit is for Rs. 18,021. This, we are explained, is due to the operation of the Court fees in the Hyderabad State. He, accordingly, counterclaimed for Rs. 6,960 for damages for delay, and another Rs. 18,021 for damages for divers breaches of covenant which are set out in the particulars, Ex. 3, to the written statement In those particulars he includes the deduction of Rs. 1,820 arrived at on September 25, 1924.

6. Consequently, so far as the evidence before us goes, the present plaintiff was unaware of the proceedings in the Nandod Court until he saw the statement in para 8 of the written statement. We are told by counsel that it was not till March 11, 1926, that a copy of the written statement was supplied to the plaintiff. It will be seen that the pleading there does not protest against the present suit except to this degree that the defendant pleads that the present suit has been filed in the Bombay High Court as a counter-blast to the Nandod suit.

7. It appears that the hearing was fixed for the Nandod suit on April 24, 1926. Accordingly, on April 19 the plaintiff' took out a notice of motion for an injunction. That came on for hearing on April 23, and although an affidavit was put in asking for an adjournment, that was refused no doubt having regard to the close proximity of the date of hearing in the Nandod suit. The motion was therefore heard without having a detailed answer put in by the defendant, and the only affidavit, the one asking for an adjournment, was put in by his manager in Bombay. It is perhaps unfortunate that the course was not adopted of adjourning the motion for say a fortnight or three weeks, and granting an injunction merely over that period. However, that was not the course actually taken, and an injunction was granted till the trial of the action.

8. Now, in considering this question I wish to make it clear in the first instance that this is not an application to stay the Bombay suit. There is no question but that the Bombay suit will go on.

9. Turning next to the question of jurisdiction, we think that there is jurisdiction in this case to grant an injunction, seeing that the defendant has submitted to the jurisdiction by entering an appearance without protest, and moreover has filed a counter-claim in this very suit. We recognize of course that he is a resident in the Nizam's Dominions, but seeing that by his counter-claim he has in effect become a plaintiff suing in this Court, we think that gives us jurisdication over him as a litigant before us with regard to the subject-matter of the suit. It is clear that the subjectmatters of both suits are the same, viz., the rights of the parties under the contract of August 16, 1923, with reference to the sale and delivery of the suit machinery.

10. The matter came up before this High Court in Mulchand Raichand v. Gill & Co. : (1919)21BOMLR963 which was also an appeal from Sir Norman Macleod's decision, and there the Court held that it had jurisdiction in a case of that nature. I recognize, speaking for my own judgment, that the views there expressed on the points of law which I am now on may be said to be obiter. But nevertheless I would like to take pp. 970 and 971 as part of my judgment in the present case, containing as it does, references to Halsbury's Laws of England, Vol. XVII, p. 263 ; Dawkins v. Simonetti (1880) 29 W.R. 228 a decision of the English Court of Appeal; and Dicey's Conflict of Laws (1908 Edn.), pp. 44, 45 and 48, and also The Carron Iron Company v Maclaren. (1855) 5 H.L.C. 416 Mr Justice Heaton in giving his judgment in Mulchand Raichand v. Gill & Co, held that the Judge has complete jurisdiction to make all orders appropriate to the trial and progress of the suit, and that he must have that power over the parties which is essential to a prompt and complete disposal of the suit before him.

11. There had previously been a decision of Sir Norman Macleod to the same effect in a Full Bench ease of Narayan Vithal Samant v. Jankibai I.L.R. (1915) 39 Bom. 604But as the judgment of the remaining Judges was not based on that ground, it cannot be regarded as a decision of the Full Bench itself.

12. Holding then as we do that we have jurisdiction in this case, the next question is whether this is a proper case in which it should be exercised. Now I think it reasonably clear that the jurisdiction is one of a delicate character, and that it requires to be exercised with caution. The English cases of Cohen v Rothfield [1919] 1 K.B. 410 McHenry v. Lewis (1882) 22 Ch. D. 397 and Hyman v. Helm (1883) 24 Ch. D. 531 which are all decisions of the English Court of Appeal, fully establish that proposition. So far as the jurisdiction in England is concerned, they go to show that there must be something vexatious or oppressive before the Court will interfere to restrain an action in a foreign Court. So, too, in Vanichand v. Lakhmichand (1910) 21 Bom. L.R. 955 Mr. Justice Pratt refused in that case to stay proceedings in the Court of Morvi, but it would appear there at p. 960 that the Morvi suit provided a more complete remedy than the British suit. That case went to the Court of appeal, but was decided on the point that the order of Mr.' Justice Pratt was not a judgment and therefore no appeal lay.

13. I do not wish to be led into a precise and accurate definition of the circumstances under which a Court in British India will or will not exercise that jurisdiction. I do not think that such a definition could easily, if at all, bo framed. But I do think that we have to consider whether it would be a real hardship on the plaintiff if his suit which was instituted first was allowed to proceed in the Hyderabad suit. I have to the best of my ability weighed carefully all that has been said by counsel for the plaintiff in this respect. I recognize that the Bombay suit is the more complete suit of the two. I recognize that the plaintiff was the first person to give his notice, and that defendant by his written statement and counter-claim in the Bombay suit would appear at that time to have boon content to have the whole dispute decided here.

14. But I am unable to say on the present materials that necessarily no part of the cause of action arose at Nandod, and that the Nandod Court has no jurisdiction to hear the suit. There are allegations made in the Hyderabad suit, which presumably the Hyderabad Court will test on that point. If the Hyderabad Court has no jurisdiction then no doubt on an application by the Bombay party it will proceed to determine whether under the laws of the Hyderabad State it has jurisdiction to hear the suit that has been filed there.

15. But, on the whole, without going into further details in this case, I do not think in the present case the plaintiff has established a sufficiently satisfactory case for us to exercise this particular jurisdiction in his favour. As I have said in the beginning of my judgment we are without the reasons which actuated the learned Judge in granting the order, and, accordingly, we must decide according to our own opinion on the evidence before us.

16. In the result, therefore, I would allow the appeal, and discharge the order made and dismiss the motion.

17. Costs of the motion and of the appeal to be costs in the cause.

Kemp, J.

18. The plaintiff-respondent sent his notice of demand in this case on December 12, 1925, demanding payment within seven days and threatening legal proceedings in default. The appellant-defendant filed his suit on January 6, 1926, at Nandod in H.E.H. the Nizam of Hyderabad's territories. The plaintiff-respondent filed his suit in Bombay in this Court on January 28, 1926. He took out a notice of motion on April 19, 1926, and on April 23, 1926, Macleod C.J. passed an order staying the Nandod suit, from that order this appeal is preferred.

19. It remains to be stated that on March 6, 1926, the defendant filed his written statement and a counter-claim to the plaintiff's suit here. The defendant's appearance was not under protest.

20. Under the circumstances I am of opinion that this Court had jurisdiction to act against the defendant in personam as the defendant had submitted to the jurisdiction without doing so under protest. Where a person appears unconditionally or without protest he submits to the jurisdiction on the whole case. See Manitoba and Worth-West Land Corporation v. Allan [1803] 3 Ch. 432 I think, therefore, the learned Chief Justice had jurisdiction to pass an order of stay in the Nandod suit.

21. The next point for consideration is whether he should have passed such an order. Unfortunately he has given no reasons for his judgment and we are, therefore, not in a position to say what facts he took into consideration and what facts he did not. Prima facie, there is nothing oppressive in a defendant filing a suit in his country when a similar suit is filed against him by his defendant in this Court. The decided cases in England show that a foreigner has a right to prefer-if he thinks he can derive any advantage therefrom-the procedure of the Court of his own country. The Courts in England have been slow to exercise their jurisdiction in personam in such a case. They have laid down that it should be shown that the plaintiff' in the English suit should show that there is no advantage which his foreign defendant could obtain from the procedure in the foreign country which he cannot equally obtain in the English suit. (Cohen v. Rothfield [1919] 1 K.B. 410Moreover, there is no presumption that the multiplicity of actions is vexatious and a special case must be made out to induce a British Court to interfere. (McHenry v. Lewis. (1882) 22 Ch. D. 397 It lies on the English plaintiff to show that the foreign action brought by his defendant is vexatious or oppressive. In Vanichand v. Lakhmichand (1910) 21 Bom. L.R. 955 Mr. Justice Pratt refused the stay of a suit in Morvi State and that decision was upheld in appeal. Nevertheless, I think it is necessary to proceed with caution in India in applying the principles laid down in the English cases, which proceed on the assumption that the foreign Courts are Courts with an established system of jurisprudence tested by time and to which litigants can safely have recourse without the fear of not obtaining substantial justice.

22. Is then the present suit at Nandod vexatious or oppressive It certainly seems to have been filed by the defendant in the desire to be first in the field with his litigation, after the plaintiff had threatened him with a suit in this Court. The plaintiff's demand was made on December 12, 1925, and the defendant's suit at Nandod was filed on January 6, 1926. Moreover, the defendant does not appear to have been anxious to give the plaintiff' intimation of his Nandod suit, and the first intimation that the plaintiff had of it was when the defendant filed his written statement on March 6, 1926. The defendant did not serve his summons on the plaintiff till April 12, 1926. He says ho was unable to do so before but this is questionable. Moreover, in the Nandod suit the defendant reserved his right to sue for damages on the alleged failure of the plaintiff to supply the goods in time. He has, however, in the suit in. this Court claimed such damages in his counter-claim. So, really, all the disputes between the parties will be disposed, of in the suit here whereas there might have to be another suit for damages if the defendant proceeds with his suit at Nandod. It further appears that the cause of action really arose entirely in Bombay. Unfortunately, the difficulty in this case is that the order made on the notice of motion by the Chief Justice was made practically on the facts stated by the plain tiff'. The defendant's agent here filed an affidavit in which he asked for time in order that his principal might have an opportunity of replying to the plaintiff's affidavit. That application was refused and the order of stay was passed.

23. The result is we do not know really what answers the defendant would have made to the facts alleged by plaintiff'. He claims that the written agreement was varied by an oral promise to deliver some of the goods, at any rate, in the Hyderabad State. He also claims that there was short delivery and that in some cases country-made goods were supplied instead of English goods under the contract, and the correspondence shows that he appears to have been trying to obtain from the plaintiff' an account of the various deliveries. That really is what I think he means in his letter of November 10, 1925, when he says that he will pay whatever is due. Moreover, there was a dispute about a credit for Rs. 5,000. On the whole I am satisfied that there seems to bo a real dispute in this case between the parties. However dilatory the defendant may have been in proceeding with his Nandod suit, I cannot say in the particular circumstances of this case that that suit was either oppressive or vexatious. I wish here to point out that this does not appear to be the situation in which e. g., a commission agent whose claim has been practically admitted by his constituent, files a suit in Bombay and is countered by a suit filed by the constituent in a foreign or up-country Court. Assuming always that the circumstances under which the Court has jurisdiction to act in personam are satisfied, the Court would, doubtless pass a proper order for stay in such a case.

24. I agree the appeal should be allowed.


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