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Jyoti Prokash Nandi Vs. Jhowmull Johurry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1909)ILR36Cal134
AppellantJyoti Prokash Nandi
RespondentJhowmull Johurry
Cases ReferredGunga Narain Gupta v. Tiluckram Chowdhry
Excerpt:
conspiracy - auction sale--fraud--combination among bidders not to bid against each other--cause of action--fraud, allegations of, to be specifically pleaded. - .....whitwell (1907) 6 c.l.j. 111 the plaint in the present case does disclose a cause of action.7. the learned judges in that case appear to have held that, if the object of the combination is to make a fair bargain, it is lawful, but if the object is to obtain the property at a sacrifice, it is unlawful. the learned judges place reliance for their decision on two english authorities, fuller v. abrahams (1821) 3 brod and b. 116 and levi v. levi (1833) 6. car. and p. 239 and on several american eases and on the statement in an american text book (greenhood on the doctrine of public policy). the case of levi v. levi (1833) 6. car. and p. 239 was however only a ruling at nisi prius and has been dissented from by the judicial committee in doolubdass v. ramlall 1850) 15 jur. 257.8. the case of.....
Judgment:

Fletcher, J.

1. This is a suit brought by the plaintiffs against the defendants to recover damages for a conspiracy in forming a combination of all intending bidders to avoid all competition at an auction of certain jewellery held at Burdwan on the 9th April 1907.

2. The plaint alleges that the combination was 'illegal and fraudulent,' 'an artifice' and so forth.

3. The question has first been argued before me whether or not the plaint discloses a cause of action.

4. Now it is an acknowledged rule of pleading that allegations of fraud must be specific.

5. 'With regard to fraud if there be any principle which is perfectly well settled it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud, of which any Court ought to take notice.' See Wallingford v. Mutual Society (1880) L.R. 5 A.C. 685 697.

6. The present case is really governed by the decision of the Judicial Committee in Gunga Narain Gupta v. Tiluckram Chowdhury (1888) I.L.R. 15 Calc. Take the test applied by their Lordships in that case and apply it to the present, by striking out from the plaint in the present suit the words 'illegal and fraudulent,' 'artifice' and so forth. And what remain Nothing, except certain allegations of fact that may be quite innocent. But then it is said on behalf of the plaintiffs that having regard to the decision of this Court by Mookerjee and Holmwood JJ. in Ambica Prosad Singh v. R.H. Whitwell (1907) 6 C.L.J. 111 the plaint in the present case does disclose a cause of action.

7. The learned Judges in that case appear to have held that, if the object of the combination is to make a fair bargain, it is lawful, but if the object is to obtain the property at a sacrifice, it is unlawful. The learned Judges place reliance for their decision on two English authorities, Fuller v. Abrahams (1821) 3 Brod and B. 116 and Levi v. Levi (1833) 6. Car. and P. 239 and on several American eases and on the statement in an American text book (Greenhood on the Doctrine of Public Policy). The case of Levi v. Levi (1833) 6. Car. and P. 239 was however only a ruling at nisi prius and has been dissented from by the Judicial Committee in Doolubdass v. Ramlall 1850) 15 Jur. 257.

8. The case of Fuller v. Abraham (1821) 3 Brod and B. 116 seems to stand alone amongst English cases and the Court in that case in discharging the rule nisi for a new trial did not give the grounds of their decision. With regard to the American cases cited by the learned Judges in Ambica Prosad Singh v. R.H. Whitwell (1907) 6 C.L.J. 111. I am not competent to express any opinion. But with regard to the statement from Greenhood's Doctrine of Public Policy, cited by the learned Judges, I may point out that the opinion expressed by that learned author is not in keeping with the opinion expressed in a recent work of a very distinguished lawyer. I refer to Volume I of the Laws of England by the Earl of Halsbury. In that volume at page 512 the noble and learned Earl expresses the opinion that the fact that a combination amongst bidders has been formed to bid at an auction, even if the combination amounts to what is commonly known as a 'knock-out', does not give rise to an action at the suit of the vendor. The decision of the learned Judges in Ambica Prosad Singh v. Whitwell (1907) 6 C.L.J. 111 does not touch the point as to whether without specific allegations of fraud the plaint discloses a good cause of action. In this respect it is sufficient for me to rest my judgment on the decision of the Judicial Committee in Gunga Narain Gupta v. Tiluckram Chowdhry (1888) I.L.R. 15 Calc. 533, the facts in which case are practically on all fours with the present.

9. Accordingly I hold that the plaint does not disclose any cause of action. The plaint must therefore be rejected and taken off the file. The plaintiffs must pay to the defendants their costs of suit.


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