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ismailji Haji Halimbhai Vs. Ismail Abdul Kadar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported inAIR1921Bom460; (1921)ILR45Bom1228
Appellantismailji Haji Halimbhai
Respondentismail Abdul Kadar and ors.
Excerpt:
.....business carried on outside british india--absence of defendant out of british india--suit for dissolution in, british indian court--exclusion of time--cause of action--jurisdiction of court--civil procedure code (act v of 1908), section 20. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - section 20 of the civil procedure code clearly gives the courts jurisdiction to decide any suit within the local limits of whose jurisdiction the..........one because according to the statements in the plaint with regard to the defendant's absences from british india, which are not disputed in the written statement, and must therefore be taken as correct, the defendant did not come to british india until july 1908 when he stayed until november 1910, and he did not return thereafter until october 1915, so that as the suit was filed on the 19th april 1916, the defendant at-the most could not have been in british india for as long as thirty-six months after the date of the dissolution. but although the cause of action may have arisen in 1902, or at the latest in 1903, the plaintiff could not have filed his suit in british india on that cause of action unless the defendant came into british india, and then he could file his suit wherever the.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued for dissolution of partnership and accounts. Admittedly the plaintiff and the 1st defendant were partners. It is difficult to see, how the second and third defendants are proper parties to the suit as they had never been members of the partnership. The plaintiff and Sulemanji Halimbhai were partners in a business at Delagoa in South Africa. With the first defendant they opened a retail business at Chanchai. Sulemanji died in 1902. His death would constitute the date of the dissolution of both the partnerships. It appears that after his death the second defendant as Ms creditor attached his interest in the Delagoa shop in which the 1st defendant had no interest, and on the sale of Sulemanji's interest in the Delagoa shop, it was purchased by defendant No. 3. Therefore defendants Nos. 2 and 3 ought to have been struck out of the suit as being unnecessary parties.

2. The suit has been dismissed by the trial Court on the ground that the Court has no Jurisdiction, and if it had, the claim was time-barred. We cannot agree with the reasons which the lower Court has given for holding that the Court has no jurisdiction. Section 20 of the Civil Procedure Code clearly gives the Courts jurisdiction to decide any suit within the local limits of whose jurisdiction the defendant resides, subject to limitations prescribed in Sections 16 to 19. But it must be admitted that none of those limitations apply to this suit. If, therefore, the plaintiff and the defendant were within the jurisdiction of the Bulsar Court, the plaintiff could file a suit against the defendant for dissolution of partnership, even although that partnership commenced and was carried on in foreign territory. It might be difficult to take the accounts of the partnership. That is purely a matter for the plaintiff's consideration, while there can be no doubt that a Court can appoint a Receiver of property outside its jurisdiction and even in foreign territory, although the Receiver in endeavouring to take possession of the suit property will have to apply and will be subject to the law of the territory in which the property is situated. Bat all those questions have nothing to do with the question of jurisdiction of the Bulsar Court, which is prima facie entitled to pass a decree in favour of the plaintiff against the defendant for dissolution of partnership and for accounts unless the Indian law of limitation bars the plaintiff's remedy in the Indian Courts.

3. The case is no doubt a peculiar one because according to the statements in the plaint with regard to the defendant's absences from British India, which are not disputed in the written statement, and must therefore be taken as correct, the defendant did not come to British India until July 1908 when he stayed until November 1910, and he did not return thereafter until October 1915, so that as the suit was filed on the 19th April 1916, the defendant at-the most could not have been in British India for as long as thirty-six months after the date of the dissolution. But although the cause of action may have arisen in 1902, or at the latest in 1903, the plaintiff could not have filed his suit in British India on that cause of action unless the defendant came into British India, and then he could file his suit wherever the defendant might be found, provided that the law of limitation did not bar his remedy; and in this case the plaintiff is entitled to have recourse to Section 13 of the Indian Limitation Act. The plaintiff sues for. dissolution and accounts; the defendant says the suit is barred by limitation; the plaintiff says that from the date of the cause of action until the date of suit the defendant has not been within British India for thirty-six months. There might have been some difficulty in deciding the point but for the decision in Atul Kristo Bose v. Lyon & Co. (1887) 14 Cal. 457. The Court there held that according to the construction to be placed upon the Act, a man who was in England when a cause of action against him accrued, and had remained there ever since, may be liable after an indefinite time to be sued in a Calcutta Court. It was contended that that was something absurd, something which the Legislature could not have intended, and that the Court ought to adopt some construction which would avoid it. Reference was made to the decision of the Privy Council in Her Highness Ruckmaboye v. Lulloobhoy Mottichund (1852) 5 I.A. 234 which was a case under the Statute of James 21, Jac. I, Clause 16, Section 7. Their Lordships held that where a person is resident in a foreign state, and was in foreign territory when and for years after the cause of action accrued, the saving clause in the Statute which would prevent time running in favour of the plaintiff as she was 'beyond the seas,' would apply to such a case. Returning to the judgment in Atul Kristo Bose v. Lyon & Co. (1887) 14 Cal. 457 their Lordships conclude: 'Moreover there is no more hardship than in the converse case of a man resident in Calcutta, who there incurs a liability to another person resident in Calcutta, who remains in Calcutta long enough for any suit against him to be barred by the law prevailing in Calcutta, as well as ordinarily in England, who then goes to England and finds himself liable to be sued there any time within six years. And this is exactly what happened under the Statute of Anne in Williams v. Jones (1811) 13 East. 439 It appears, therefore, that provided they Court has jurisdiction, a suit would be in time provided that the defendant has not been within British India beyond the time allowed by the Indian law of limitation to bring the action. The appeal, therefore, must be allowed and the suit returned to the lower Court to be decided on its merits. We express no opinion whatever with regard to the merits of the case. Clearly the contract having been made in a foreign territory, the rights of the parties with regard to that contract would have to be determined according to the law of the country in which the contract was made. The appellant is entitled to the costs of the appeal. The costs in the Court below will be costs in the cause.


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