1. This is a suit to recover the balance due on dealings between plaintiffs as pakka adatias and the defendant as a constituent, There is now no dispute as to the terms of the business. Plaintiff's were entitled to charge half per cent, ascommission, and nine per cent, interest on all advances made against goods entrusted to plaintiffs for sale. Defendants were bound to find margin money on demand. If they failed to do so plaintiffs were entitled to sell the goods. It was originally alleged that plaintiffs could in this event buy themselves but that position was deliberately abandoned by their counsel. In other respects the dealings were of the familiar type where the parties are pakka adatias and constituent.
2. There is little or no dispute as to the main facts. On or about January 9,1918, plaintiffs received seventy-two bales of Mandsor cotton from defendants and advanced Rs. 13,000. On April 5, 1918, plaintiffs received a further consignment of seventy-one bales and advanced Rs. 17,000. Four bales were sold at Rs. 400 per candy on February 4, 1919. The party taking them could not offer more than Rs. 800 for the balance. As regards the balance of 139 bales, plaintiffs' case is that these proved unsaleable, and that they themselves took them over at the market rate on November 22, 1919. Defendants in para, 4 of the written statement allege that in February 1919 Rameshwar Jagannath, proprietor of the defendant firm, was in Bombay and that he was informed by plaintiffs that all the bales had been sold, and that a balance of Es, 830 was due, which was paid by hundi. The transaction was thus completely closed. On this point plaintiffssay that this sum was paid its margin money.
3. Upon this question of fact the defence is untrue. Defendants have given no evidence whatever. Plaintiffs' version is supported by plaintiffs' mukadam and the accounts. Defendants' own post cards (Exhibit D) show that the bales had not been sold in April 1919, long after the payment of Rs. 830. It is unnecessary to deal further with this matter. Substantially plaintiffs' case is true. The evidence stands uncontradicted, andRameshwar Jagannath has not gone into the witness box.
4. The only point of fact which remains is, for what sum are defendants entitled to take credit as regards the 139 bales, which plaintiffs took over on November 22, 1919. As I see the matter defendants can claim the market rate of similar goods at that date. The goods were three seasons old, and were partially damaged by water. I accept plaintiffs' evidence on these points. The four bales sold on February 4 fetched Rs. 400 per candy but it is clear that they were not worth this. The mill that took them offered Rs. 300 for the balance. The witness Dorabsha says there was a fall in the market from February 4 to November 22, The maximum was Rs. 70, the minimum Rs. 25. From defendants' post-cards it would appear that in April there were enquiries for these goods at Rs. 300. Taking it all round a fair market rate in November 1919 would be about Rs. 250 per candy.
5. Those are the facts, and so far the case is extremely simple. Unfortunately there are certainly technical difficulties as to which more than one opinion is possible. These must now be stated. The first point is one of jurisdiction, the second of limitation.
6. The question of jurisdiction arises in this way. The plaint was filed on March 16, 1922. Paragraph 7 contains the usual recital:-
The said advances were made in Bombay and a material part of the case of action has arisen in Bombay and with leave granted under Clause 12 of the Letters Patent this Honourable Court has jurisdiction to try this suit.
7. Leave was granted on April 25, 1922. At that date the defendant was described as follows:-
Rameshwar Nandlal of Sujalpur Hindu inhabitant merchand residing atSujalpur, Central Provinces.
8. It is admitted that there is not and never has been any individual of the name of Rameshwar Nandlal. On November 2, 1922, there was an amendment and defendant was described as follows:-
Rameshwar Nandlal, a firm carrying on business at Sujalpur Central Provinces.
9. The matter which first falls to be determined is whether the nature of the amendment is such as to alter the parties to the suit, or is it no more than the correction of amisdescription. I have recently dealt with this question in two judgments (Suit No. 3454 of 1922 and Suit No. 44.4.7 of 1922). The former of these has been considered and upheld by the Appeal Court in Appeal No. 25 of 1925. The relevant authorities were considered in that case. But it is clear that each case must stand on its own facto. Whether there is a misdescription and nothing more depends ultimately on the meaning of the word ' misdescription'. A misdescription is partly true and partly false. It is true in that it correctly indicates the object sought to be indicated: it is false inasmuch as the description of that object is inappropriate. In more colloquial language one might say of a misdescription 'I know what you mean but that is not the correct way to describe it'.
10. In the present case the description of the defendant-and it is with the description of the defendant that we are concerned-originally indicated an individual name Rameshwar Nandlal, a Hindu inhabitant, a merchant, residing at Sujalpur, Central Provinces. There is not and never has been anything to which any part of that description is appropriate. The defendant so indicated never existed, Any amendment which substitutes a defendant having a real existence must be more than the correction of amisdescription. Further, if the original description and the corrected description be compared what is there common to the two notions? Nothing real. Both contain the words 'Rameshwar Nandlal', but those words alone mean nothing, though they may mean several things, It is impossible to say that this is no more than the correction of a misdescription. What has been done is to substitute for the original non-existing defendant an existing party.
11. The result must be that the suit as now constituted is filed without leave under Clause 12 of the Letters Patent (videRampartab Samrathrai v. Foolibai and Goolibai I.L.R. (1896) 20 Bom. 767 andRampratab v. Gaurishankar (1922) 25 Bom. L.R. 7. Therefore, for the purposes of limitation the date of filing the suit is the date of the amendment, viz., November 2, 1922. This follows from Section 22 of the Indian Limitation Act. It further follows that if leave is necessary under Clause 12 of the Letters Patent this Court has no jurisdiction.
12. As to jurisdiction it is argued that leave is not necessary. That means that the whole cause of action arose in Bombay. It was urged that in view ofpara 7 of the plaint, which I have, set out above, plaintiffs could not avail themselves of this argument. But I cannot construe that paragraph so strictly. It is no more than ' common form ' inserted ex majorscartels, The question, therefore, is whether any part of the cause of action arose outside Bombay. If so, there is no jurisdiction unless leave is obtained or unless at the time of the commencement of the suit the defendant dwells or carries on business or personally works for gain within the local limits of the jurisdiction. We are not concerned here with the second qualification. Nothing of that kind is relied upon, Whatever may have been the case at the date of the transaction it is not suggested that at the date of the suit the defendant firm carried on business in Bombay. The plaint itself whether before or after the amendment excludes that plea. The case has been put solely on the ground that the whole cause of action arose in Bombay.
13. The term ' cause of action ' is familiar enough but it is not easy to define it. It is a comprehensive term indicating all those averments which are necessary in order to entitle a plaintiff' to maintain an action. Primarily the cause of action must be found in the plaint(Mussummat Chand Kour v. Partab Singh (1888)L.R. 15 I A. 156 . But that is not enough for the determination of the present question. The plaint may allege the facts necessary to make out a cause of action, but it does not necessarily set out where those facts took place. The test laid down by Tyabji J. in Motilal v. Surajmal (1804) 6 Bom. L. R 1038 has been accepted in more than one case 'what are the material facts without which the plaintiff must fail ?' In other words, ' eliminate anything which took place outside the jurisdiction. If the residence constitutes a complete cause of action then the whole cause of action arose within the jurisdiction, and the Court can entertain the suit'.
14. Approaching the evidence from this point of view, plaintiffs have proved that the agreement with them was made in Bombay, the goods were handed over to them in Bombay, and the advances were made in Bombay. I accept the evidence on these points, for no attempt has been made to contradict, and defendants' letter which is affixed to the receipt Exh. B bears out the evidence of plaintiffs' mukadam. The contract was thus made in Bombay. By that contract plaintiffs undertook to sell the goods and to render an account and defendants undertook to pay the balance due. Plaintiffs rendered an account and defendants- here is the breach-failed to pay the balance due. Where had accounts to be rendered, and where was the balance payable ?
15. Reliance has been placed on the case of Kedarmal v. Surajmal : (1908)10BOMLR1230 as supporting the defendants. That case, it is said, shows that the place of payment is where the constituent resides. But in that case the money was due from the pakka adatia in Bombay to the constituent at Akola. Here the constituent at Sujalpur had to pay money to the pakka adatia in Bombay, and the ordinary rule would seem to apply, viz., that the debtor must seek out the creditor. Further in this case we have the additional fact that the defendant firm had a place of business in Bombay. That is proved by plaintiffs' mukadam and not denied by any evidence for defendants. It is a fair inference that accounts were to be rendered in Bombay and payment made in Bombay. It would appear to follow that the whole cause of action arose in Bombay, Therefore, the Court has jurisdiction.
16. I turn now to the question of limitation. As against the defendant firm the cause of action arose when they were brought upon the record (s. 22 of the Indian Limitation Act), that is to say, on November 2, 1922. The suit is one by an agent against a principal for a balance due on an account, and fairly falls within Article 85 of the First Schedule to the Indian Limitation Act (vide Madhav v. Jairam : AIR1921Bom451 and Satappa v. Annappa : AIR1923Bom82 . In Watson v. Aga Mehedee Sherazee(1874) L.R. 1 IndAp 346 the suit was for a balance due on an account between principal and agent. The Privy Council applied Section 39 of the Act of 1859 which corresponded to Article 85. It is not a suit on a breach of contract as was suggested except in the limited sense that defendants were bound to pay and did not pay. Now under Article 85 time runs from the close of the year in which the last item admitted or proved is entered in the account, such year to be computed as in the account, The year for the purpose of the account ended in 1919 at the Divali (October 24, 1919), If the last item admitted or proved is after that date then time would begin to run from the Divali of 1920. If that, is so the suit is in time. The last items are the sums credited to defendants on the sale of the bales. The date of these is November 22, 1919 (the date is incorrectly given in the particulars to the plaint). If time runs from that date the suit was filed within three years. A fortiori it is within time from the end of that year. That is, in my opinion, the correct view.
17. Plaintiffs have given credit to defendants for seventy-one bales at Rs. 200. The rate I have found is Rs. 250. There is thus a difference of Rs. 1,777-8-0 in favour of defendants. In other respects the amount claimed is correct.