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Sri Vasudevandra Saraswathiswami Vs. Sridhara Sivarama Moorthy - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai
Decided On
Reported inAIR1949Mad630; (1949)1MLJ110
AppellantSri Vasudevandra Saraswathiswami
RespondentSridhara Sivarama Moorthy
Cases ReferredMe. Laahlan & Co. v. Ship Gamosun
Excerpt:
- - the plaint says that the defendant failed to pay the money over and has retained it ever since. there can be no doubt that the plaintiff had a perfect right to bring his suit here and if the defendant had had any claim arising against the plaintiff within the jurisdiction of this court, then the plaintiff would have laid himself open to a counter claim in respect of it and this court would have been entitled to try such counterclaim......unless the court dealing with the original action has also jurisdiction in the matter of the counterclaim.support for this proposition can also be got from the privy council case bow, me. laahlan & co. v. ship gamosun 1909 a.c. 597 where a question of admiralty jurisdiction arose; and it was held that to an action brought in an admiralty court a counter-claim which ordinarily would not be triable by an admiralty court could not be put forward. in the notes to the original side rules under order 5, rule 3 it is said:a counter-claim is substantially a cross-action, not merely a defence to the plaintiff's claim. it must be of such a nature that the court would have jurisdiction to entertain it as a separate action.and the above authorities are cited in support. mr. radhakrishnaiya has.....
Judgment:

Bell, J.

1. In this suit the plaintiff claims a sum of Rs. 9000 which he says the defendant must repay him in the following circumstances. In January 1945, according to the plaintiff he came to Madras from Bezwada, which is his permanent residence in order to take part in a scheme in insolvency whereby he was to be the guarantor. He says that he came to Madras with the sum of Rs. 9000 but found, on arrival that the scheme was not going to materialise. Happening to meet his son-in-law, the defendant, he decided to send the money back to his son who lived in Tenali, the defendant representing to him that he was proceeding in a few days to Tenali on his own business. According to the plaint, the money was therefore handed to the defendant for the purpose of delivering it to the son in Tenali. The plaint says that the defendant failed to pay the money over and has retained it ever since. Hence this suit.

2. The defence denies the whole of the plaintiff's story except and in so far as the defendant admits receiving the Rs. 9000 although on a slightly different date; and he says that the money was paid to him on account of a larger sum of money due by the plaintiff to him as the result of a quasi agency which the plaintiff had performed on the defendant's behalf between the years 1929 and 1931. According to the defence, the plaintiff, who as indicated was the defendant's father-in-law, managed the defendant's affairs or some of them, and according to the defendant, has never to this day properly accounted for the same. The defence says that the plaintiff on a taking of accounts would be found to be liable to pay at least Rs. 12,000-0-0, if not, more thousand rupees. The defence therefore argues that accounts should be taken and/ or that the plaintiff should pay the defendant a sum of Rs. 3592-8-0, the balance, which he says is due to him.

3. The written statement is of great length and sets out in great detail numerous transactions regarding promissory notes, purchases of land, and other things, with which the defendant says the plaintiff was involved on his behalf. This is a very substantial case therefore which is put up by the defence, and as stated, it relates to the period 1929 to 1931, and to transactions which took place hundreds of miles from Madras.

4. In the interlocutory proceedings which came, I understand, before the late Kuppusawmy Aiyar J. it was agreed between the parties that the question of jurisdiction to try this counter claim which was raised by the plaintiff in his reply to the written statement should be tried as a preliminary issue before the counter claim is taken up for trial or before any evidence is let in on the counter claim. This agreement was apparently made an order by the learned Judge. On that footing the case has been got ready for trial and this is the preliminary point with which I have now to deal. It has been laid down in many cases that a counter claim may be set up only in respect of claims as to which the party could bring an independent action in the Court in which the counter claim is brought. (See Halsbury's Laws of England, Second Edition, Volume 29, p. 503.) A. list of authorities is cited in support of that proposition going back to 1879. Furthermore, in Williams Brothers v. Agius Ltd. 1914 A.C. 510 Lord Danedin states the proposition in this way at p. 522:

But this at least is certain, that no coanter claim ean be given effect to as a defence unless the Court dealing with the original action has also jurisdiction in the matter of the counterclaim.

Support for this proposition can also be got from the Privy Council case Bow, Me. Laahlan & Co. v. Ship Gamosun 1909 A.C. 597 where a question of Admiralty Jurisdiction arose; and it was held that to an action brought in an Admiralty Court a counter-claim which ordinarily would not be triable by an Admiralty Court could not be put forward. In the notes to the Original Side Rules under Order 5, Rule 3 it is said:

A counter-claim is substantially a cross-action, not merely a defence to the plaintiff's claim. It must be of such a nature that the Court would have jurisdiction to entertain it as a separate action.

and the above authorities are cited in support. Mr. Radhakrishnaiya has contended on the other hand that wherever a plaintiff goes to a Court he thereby gives that Court jurisdiction to entertain any counter-claim which may be put forward by the defendant. The words on which he relies, however, are not quite explicit. They appear in Dicey's Conflict of Laws, p. 221:

A person, further, who comes before the Court as a plaintiff in general gives the Court jurisdiction to entertain a counter-claim, or in other words, a cross action against him but not an action on an independent ground.

It is to be observed that the words are 'A person ... who comes as a plaintiff in general gives the Court jurisdiction,' that is to say, not in every case. In my opinion, it means no more than if a plaintiff has sought the assistance of a Tribunal the defendant may also seek the assistance of that Tribunal if that Tribunal has jurisdiction to give him the assistance he prays. It is wrong, in my view, to say that the Original Side Court here by reason of the fact that the plaintiff quite properly appears and claims the return of money which he handed over within the jurisdiction thereby enables the defendant to bring proceedings which he otherwise could not bring in this Court or to do things which he could not do either here or anywhere else if the defendant were filing his counter claim as a separate suit. There can be no doubt that the plaintiff had a perfect right to bring his suit here and if the defendant had had any claim arising against the plaintiff within the jurisdiction of this Court, then the plaintiff would have laid himself open to a counter claim in respect of it and this Court would have been entitled to try such counterclaim. But because the plaintiff has done something which he was entitled to do, it does not, mean that the defendant's rights become limitless, e.g. to put forward a claim which nobody else could put forward as a plaintiff, and for which there is no justification in the Letters Patent or in the Civil Procedure Code. For these reasons I hold therefore that the preliminary point as to jurisdiction should succeed and the counter-claim is excluded and therefore dismissed with costs.

5. A second preliminary point was taken as to whether the parties were suing each other in the same character. In my opinion, there is no substance in this point. It is not as if the plaintiff was suing as executor and has been counterclaimed in his personal capacity. Both sides are appearing actually in their own personal character. This point therefore fails and I need say no more about it. The preliminary point therefore as to jurisdiction having succeeded, all that remains to be tried is as to whether or not the money was received by the defendant in the manner suggested by him or in that alleged by the plaintiff.


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