1. This is an application to restrain the defendant from proceeding with suit No. 62 of 1942 filed by him in the Court of the Munsif at Bnda (U.P.).
2. Plaintiffs are commission agents doing business in Bombay. Their present suit is to recover from the defendant Rs. 15.000 and odd due at the foot of the agency account. The transaction between the parties started in 1938 and up to November, 1941, the account is contendd to be adjusted because no disputes were raised. There were certain outstanding transactions at that time including some for April/May 1942 settlement. When the plaintiffs demanded payment the defendant replied that after the outstanding transactions were closed and the amount ascertained he would pay or receive as the case may be, and in the meanwhile the plaintiffs need not have any apprehensions about the balance shown to be outstanding against the defendant. The plaintiffs waited till the due date in April and thereafter sent their letter dated May 1, 1942, demanding the amount now claimed in the suit. The defendant in reply stated that he had already filed a suit at Banda for accounts. The plaintiffs thus came to know of the filing of the suit at Banda by the defendant.
3. It now appears that the defendant had filed the suit in the Court of the Munsif at Banda on March 24, 1942. The summons in that suit was not served on the plaintiffs for a long time thereafter. As the Bombay High Court was closed for the vacation and as the first date for fixing the issues in the Banda Court was in the vacation, the plaintiffs appeared and suggested that the question of jurisdiction of the Banda Court should be tried first. After some discussion and some delay, at the end of May it was decided that that issue could not be tried as a preliminary issue but all the matters between the parties should be tried at one time and the Court fixed September 24 for the trial. The plaintiffs got the plaint and proceedings in the Banda Court brought to Bombay, and as they were in Urdu, got them translated. The present suit was filed on July 8 and this notice of motion was taken out on July 18.
4. The defendant's suit in the Banda Court is based on these facts : That the defendant knew one of the partners in the plaintiff firm, that certain goods were sent for ready sale, that in respect of forward transactions there was a partnership between the parties arranged at Banda and the accounts of the said partnership should be made up every year at Banda, and that though several times the plaintiffs' partner came to Banda thereafter no account was made up because that partner had omitted to bring the books of the partnership, The claim is to recover Rs. 500 as due on the making up of partnership accounts or in the alternative for taking the partnership accounts. In that plaint the defendant alleged that by the filing of that suit the partnership was dissolved. The allegation of partnership is not supported by any document, and the correspondence read out to me clearly shows that before the suit was filed the defendant had never alleged that there was any partnership. According to his own plaint the accounts had to be made up at the end of each year, but although more than two years had elapsed, no accounts had been made up. The allegations in his plaint are that the plaintiffs had kept fraudulent accounts and the transactions as entered in their books were not correct.
5. Two objections are raised to the plaintiffs' application for stay. First, that the Court has no jurisdiction to grant the application, and the other, that because of the delay the Court should refuse the application. On the first objection it is pointed out that the defendant does not reside or carry on business within the jurisdiction of this Court and he has filed his appearance in this suit under protest. From these facts it was argued that the Court had no jurisdiction to grant the injunction. In my opinion this contention is wrong. The defendant relied on Vanichand v. Lakhmichand : (1919)21BOMLR955 and Mulchand Raichand v. Gill, & Co : (1919)21BOMLR963 in support of his contention. In the first case Pratt J., in the course of his judgment in discussing the jurisdiction of the Court to grant such injunction, stated as follows ((p. 957):-
The authorities collected in that judgment [ The Canon Iron Company v. Maclaren (1855) 5 H.L.C. 416] embrace three classes of cases in which this principle has been enforced. There are, firstly, when the foreign suit is vexatious and has been filed by a party to a litigation pending in England in which complete relief may be had; secondly, when the foreign suit is ill-calculated to answer the ends of justice e.g.,...thirdly, the general grounds of equity and good conscience.
The matter went in appeal but this aspect of the case was not discussed in appeal. In Mulchand v. Gill & Co. the Court granted an injunction against the constituent who had filed a suit in another Court in British India. Macleod J. (as he then was) granted the injunction. When the matter went in appeal, Marten J. (as he then was) discussed the question of jurisdiction, and to refute the argument advanced in that case against granting the injunction because the defendant did not reside or carry on business within the jurisdiction, stated, 'One short answer to this proposition is that it cannot apply where, as here, the defendants have been served and have appeared in the suit without protest.' The foundation of the defendant's argument in the present case is this observation in that judgment. In my opinion this argument is based on a complete misunderstanding of the discussion in that judgment. The learned Judge did not convey by his judgment that if that fact did not exist the Court had no jurisdiction to grant the injunction because the defendant did not reside or carry on business within jurisdiction. I may point out that in A. Milton & Co. v. Ojha Automobile Engineering Co. I.L.R. (1930) Cal. 1280 the extent of the Court's jurisdiction under such circumstances came to be considered. Lort-Williams J. held that there was no objection to the Court granting an injunction because the defendant did not reside within the jurisdiction or carry on business within the jurisdiction of the Court. In terms he stated that he agreed with the view expressed by Sale J. in Mungle Chand v. Gopal Ram. I.L.R. (1906) Cal. 101 It may be noticed that that view was not approved in Jumna Dass v. Harcharan Doss I.L.R. (1911) Cal. 405 and Vulcan Iron Works v. Bishumbhur Prosad I.L.R. (1911) Cal. 233. All these cases came to be considered by Engineer J. when an application for a similar injunction was made in Nainmal Pratapmal v. Mohandas Kamalsey (1937) O.C.J. Suit 738 of 1937, decided by Engineer J. (in Chamber), on June 21, 1937 (Unrep.), and he has followed the principle stated in A. Milton & Co. v. Ojha Automobile Engineering Co. I entirely agree with the view expressed in that judgment. In my opinion there is nothing in law to prevent a Court on the Original Side of a Chartered High Court from granting an injunction to restrain a defendant from proceeding with a suit in another Court, provided it was shown on the face of the plaint that the Court had jurisdiction to entertain the suit before the High Court. On the affidavits the defendant does not even venture to suggest that this Court has no jurisdiction to try the present suit. On the first question therefore the defendant's contention fails.
6. In respect of the second contention it should be noticed that if the defendant is permitted to proceed with the suit at Banda, it would be unjust, vexatious and oppressive to the plaintiffs. The Munsif's Court will have no jurisdiction to grant the relief asked by the plaintiffs except perhaps on the footing of a partnership which is completely denied by the plaintiffs. Therefore as the plaintiffs do not accept the contention of the defendant in the Banda suit, the present suit must go on. If I refuse this application, it will amount to multiplicity of suits without any benefit. That should certainly be stopped if possible, particularly under the circumstances as disclosed in this case. Even for the purpose of proving the defendant's allegations that the transactions shown in the plaintiffs' books were unwarranted and the entries were false, the whole evidence will have to be recorded in Bombay. It will be very difficult if not impossible for a commission agent to carry on his business in Bombay if hundreds of his constituents were to file suits in different places all over India and drag him all over India when they incur losses and desire to delay payment, On the ground of convenience it appears clear that the Court will be reluctant to permit such an abuse of the process of the Court, unless circumstances justify such an action. In the present case as shown by the correspondence before suit no dispute was raised by the defendant and the suit filed by him in March after that correspondence is an attempt to forestall any suit being filed by the plaintiffs in Bombay. As I have pointed out the Munsif's Court at Banda will be unable to grant the relief asked by the plaintiffs in this suit. The facts disclosed in the affidavits do not show that any substantial progress has been made in the Banda suit except that the Court has fixed September 24 as the date of hearing. I do not think the facts disclosed by the affidavits show that the defendant will be prejudiced by the prosecution of the suit in Bombay alone.
7. The argument that there has been delay in making this application is not justified. As I have pointed out the plaintiffs were informed of the suit at Banda only after the High Court closed for the vacation and within three weeks after the re-opening they have filed this suit and within less than two weeks thereafter the present application is made. It is true that the notice of motion has come on for hearing after a month, but that must be due to mutual convenience of the parties which cannot be treated as a ground of delay. On the ground of convenience therefore it seems to me that the defendant should be restrained from proceeding with the suit at Banda. I therefore make an order in terms of prayer (a) of the notice of motion. Liberty is reserved to the defendant to apply for the dissolution of the injunction in the event of the plaintiffs failing to prosecute the Bombay suit diligently. Costs of the application to be costs in the cause.