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Kissenlal Munhra Vs. Multanmal Buchha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 202 of 1962
Judge
Reported inAIR1964Cal328
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 5 - Order 9, Rule 11
AppellantKissenlal Munhra
RespondentMultanmal Buchha and ors.
Appellant AdvocateA.C. Bhabra and ;S.B. Tibriwal, Advs.
Respondent AdvocateA.C. Ganguly, ;R. Goho and ;M.P. Choudhury, Advs.
Excerpt:
- .....endorsement of mr. ganguly. according to mr. ganguly's endorsement the plaintiff was directed to furnish particulars in respect to paragraphs 4 and 6 of the plaint whereas in the minutes it appears that the plaintiff was directed to furnish particulars not merely in respect to paragraphs 4 and 6 but in respect to paragraphs 1 and 2 as well. in the additional written statement the point is taken that the defendants are estopped from contending that the plaintiff was required to furnish any particulars other than what would appear in the endorsement of mr. ganguly. their further contention is that they had complied with the order. it is further contended that in any event non-compliance, if any, has been waived by the defendant. it is also contended that the defendant is debarred from.....
Judgment:
ORDER

Mallick, J.

1. This suit is for the recovery of a sum of Rs. 18,888.03 nP. on a commission agency agreement. The plaintiff claims to carry on business at 35 Jamunalal Bajaj Street in the town of Calcutta. The defendants impleaded are three. The third defendant is a firm with which the plaintiff entered into a commission agency contract. Defendants Nos. 1 and 2 are alleged to be interested in the firm either as members of Mitakshars Coparcanary or as partners.

2. The allegations in the plaint are that on or about the 24th August, 1960 the plaintiff was appointed a commission agent of the defendant on certain terms Shortly the terms an that the plaintiff according to the instructions of the defendant firm would purchase textile goods and despatch the same. The price paid by the plaintiff for the purchase of such goods are to be recovered from the defendants with all charges and expenses plus commission, brokerage, Dharmada and certain other charges. The plaintiff would also be entitled to interest on the sum paid for the purchase of the said goods at the rate of 9 per cent per annum. It is expressly pleaded that all sums payable by the defendants would have to be paid at the plaintiff's place of business at Calcutta within the jurisdiction of this Court. In terms of this agreement business continued from 24th August, 1960 to the end of the year. The plaintiff became entitled to the payment of Rs. 16706.20 nP. on account of the above dealings. Further the plaintiff is entitled to get interest amounting to Rs. 2181.83 nP. The total claim in suit, therefore, is for Rs. 18,888.03 nP.

3. After the institution of the suit summons was duly served on the parties and the defendants entered appearance. There are two written statements on record, one jointly filed by defendant Nos. 1 and 3, and the other by the defendant No. 2. The Attorney representing all the defendants is the same, namely, Messrs. S. M. Bagla and Co. Before, however, filing written statement, the defendants solicitor asked for certain particulars. No particulars having been furnished an application was made for particulars. This application was heard and disposed of by Mr. Justice Ray, who, on the 26th June, 1962 directed the plaintiff to furnish certain particulars. This order further directed that in default of furnishing particulars within the time stated in the said order, the suit will stand dismissed. I will have to deal in greater detail with this order subsequently.

4. As stated before, two written statements have been filed, one by Neemchand Buchha and another by Multanmal Buchha and the firm of Chandanmul Jain jointly. In the written statement Neemchand dented having anything to do with the defendant firm or its business and in particular with the transactions in suit. It is alleged that in 1953 Neemchand separated from his son the defendant Multanmull and thereafter he was living separately at his native village. The transaction and agreement took long long after this dissolution of the joint family and he had no concern with the said business. In the other written statement filed by the remaining defendants, the point taken by the other defendant has been supported. It is contended by Multanmul that he is sole proprietor of the defendants firm Chandanmul Jain and that his father, the defendant No. 2 has no interest therein. The substantial defence raised in the written statement is that apart from the dealing and transactions in Cotton Textile goods in which the plaintiff acted as the commission agent of the defendant the defendant also acted as the commission agent of the plaintiff in respect of jute. The contract pleaded in the plaint is not the correct contract but the correct contract has been set out in their written statement. The defendant firm was required to purchase jute on account of plaintiff and advance money in the same way as the plaintiff under the agreement was to advance money for the purchase of cotton textile goods for the defendant. Each party would be entitled to realise from the other the money so advanced and there would be account of the mutual dealings as stated above. There is no denial that there has been transactions In respect of cotton textile goods as claimed by the plaintiff in its plaint and the plaintiffs claim on account of cotton transactions in cotton textile goods seems to be admitted. The defence to this plaintiffs claim is that there was a cross claim of the defendant on account of jute business, in excess of the plaintiff's claim to the extent of Rs. 525/11/9-the plaintiff's claim being Rs. 16720.20 nP. while the defendants counterclaim is Rs. 17,231/-. Jurisdiction of this Court is disputed on the ground that the contract was entered into outside Calcutta during Railway travel and that no part of the cause of action arose within the-jurisdiction of this Court. On the above grounds, it is contended that the suit should be dismissed with costs. It is also contended that on account of the non-compliance of the order of Mr. Justice Ray indicated before, the suit stood dismissed. It was not necessary for the defendants to file any written statement. The defendant, however, for greater safety filed the written statement without prejudice to their contention that the suit stood dismissed. It appears that because of the last points taken by the defendant the plaintiff obtained leave from the Court to file additional written statement. I should note that in respect to the application for particulars there is a discrepancy in the minutes and the endorsement of Mr. Ganguly. According to Mr. Ganguly's endorsement the plaintiff was directed to furnish particulars in respect to paragraphs 4 and 6 of the plaint whereas in the minutes it appears that the plaintiff was directed to furnish particulars not merely in respect to paragraphs 4 and 6 but in respect to paragraphs 1 and 2 as well. In the additional written statement the point is taken that the defendants are estopped from contending that the plaintiff was required to furnish any particulars other than what would appear in the endorsement of Mr. Ganguly. Their further contention is that they had complied with the order. It is further contended that in any event non-compliance, if any, has been waived by the defendant. It is also contended that the defendant is debarred from raising the point on the ground of res judicata or principle analogous thereto.

5. At the trial, the plaintiff tendered his own evidence and the evidence of one Iswar Chand. Both the plaintiff and Iswar Chand have been cross-examined by Mr. Guha, learned Senior Counsel appearing for the defendant. The plaintiff in his evidence proved that the agreement was entered into at his place of business. Sometime in May 1960 the plaintiff went td his father-in-law's place to attend a marriage ceremony, where' he met the defendant Neemchand and had conversation with him. Neemchand expressed a desire to do business with the plaintiff's firm. Neemchand stated that the name and style of his business was Chandanmal Jain. Subsequently defendant Multanmal, the son, came to Calcutta, where the commission agency agreement was settled and Multanmal placed orders for supply of a large consignment of textile goods. According to this witness, Multanmal told him that the defendants, Multanmal and Neemchand, constitute a joint family and both of them are managing members of the said joint family. The witness denied that he had ever dealt in jute and that he ever appointed the defendants as their commission agents for the purpose of purchase of jute at the defendants' place of business. The witness proved the account and his claim.

6. The second witness called on behalf of the plaintiff is Iswarchand who is a resident of Nokhamandi.

He is a big gun of that place, having been formerly Chairman of the Municipality and is still a member of the Municipal Committee. He went to Assam to contest an election. His evidence is that he knows defendants Nos. 1 and 2, that they constitute a joint family, that they hove never separated and that they own a shop in their native village where they alternatively sit. He does not know that the defendants carry on business in the District of Sarsa to Bihar. He further stated that he had seen both the defendants at Calcutta during his stay here some ten days back.

7. This is all the oral evidence tendered by the plaintiff.

8. The documentary evidence that has been tendered by the plaintiff is certain letters which tend to show that the defendants admitted their liability to the plaintiff. In cross-examination Mr. Goho showed him copies of certain letters alleged to have been written by the defendant to the plaintiff. These letters shown by Mr. Goho to the plaintiff may suggest that there were dealings in jute between the parties. The plaintiff denied having received those letters. Mr. Goho stated that in that view of the matter these copies cannot be tendered in evidence, unless it is proved that the originals were sent and delivered. Till then Mr. Goho was hoping that the defendants would tender evidence in support of their case. The defendants, however, did not tender evidence in support of their case. In the result, copies of these letters could not be tendered in evidence. I may state my view here that these letters, though perhaps could be construed to be of some assistance to the case made by Mr. Goho's clients In the written statement, were not absolutely convincing evidence as to the dealings between the parties in jute. None of the defendants came to the witness-box to support their case as to the agreement and as to dealings in jute between the parties. I must, therefore, hold that the commission agency agreement pleaded by the plaintiff In the plaint has been proved. The case made by the defendants in the written statement to the effect that the parties had also dealings In jute has not been substantiated by evidence and as such must be rejected. As indicated before, in the written statement the plaintiffs claim is practically admitted. Apart from the admission on pleadings, the evidence tendered is sufficient to prove the plaintiffs claim. There is also evidence led by the plaintiff that the defendants Nos. 1 and 2 constitute a Mitakshara Coparcenary, that the coparcenary has not been dissolved and that the defendant No. 3 is a business owned by that coparcenary. Accepting the evidence of the plaintiff I must also hold that the agreement was entered Into at Calcutta and that in consequence this Court has jurisdiction to entertain this suit.

9. In his final argument Mr. Ganguli laid greatest stress on the other point taken in the written statement to the effect that by reason of the non-compliance of the order passed by Ray J. on June 26, 1962, the suit stood dismissed. It is necessary to state the circumstances in which the order was passed. On facts there is little dispute.

10. On April 23, 1962 the defendant's solicitor addressed a letter to the plaintiffs solicitor asking for certain particulars. The particulars sought were with reference to paragraphs 1, 2, 4 and 6 of the plaint They are as under :-

'Paragraph 1. 'At all material times' - please specify the alleged time?

Paragraph 2. 'at Calcutta' - Please specify the alleged place?

' 'Appointed' - Was the alleged appointment verbal or to writing? If In writing please allow inspection who represented the plaintiff and who represented the defendant's business?

' 'Inter alia' - Please specify the other terms and conditions meant.

Paragraph 4. 'Instructions' - If the Instructions be in writing, please produce same for inspection. If verbal give full particulars stating the date, name of person instructing and name of the persons to whom the instructions were given.

'Despatched' - Give dates and other particulars of alleged despatches stating how the despatches were made.

' 'Diverse goods' - Give full details of the goods alleged to have been despatched and price paid. Give full particulars of the! alleged dealings and transactions. Please allow inspection of the entries in the Rokar and Nakal referred to in the annexure.

Paragraph. 6. 'Demands' - Please specify when, where and how the alleged demands were made by whom and to whom?

11. The plaintiff's solicitor having disputed the defendant's right to get these particulars, a summons was taken out by the defendant for furnishing particulars.

12. It appears that the summons was adjourned for any number of times and June 26, 1962, was the date on which the application was to be heard. On that day on behalf of the plaintiffs solicitor a representation was made to Mr. Gangoly the learned counsel appearing for the defendant not to make the application on that day but to consent to an adjournment of the matter. Mr. Gangoly was agreeable to the proposal and in point of fact he mentioned the matter before the learned Judge so that the matter may be adjourned. The learned Judge however was not agreeable to grant any further adjournment. If I may say so, he was justified. Mr. Gangoly, therefore, had to make the application upon which the order was made.

13. From the endorsement of Mr. Gangoly it appears that the particulars ordered were confined to the particulars asked for in respect to paragraphs 4 and 6. No particulars, according to such endorsement, had been directed to be given by the learned Judge as to paragraphs 1 and 2. Mr. Gangoly very fairly admitted before, me in Court that he did not press for particulars with respect to paragraphs 1 and 2. It appears however from the minutes that the learned Judge not only directed particulars to be furnished as contained in the endorsement of Mr. Gangoly but he also directed particulars to be given in respect to paragraphs 1 and 2 as well. In other words, the plaintiff was ordered to furnish all the particulars asked for by the defendant's solicitor in his letter dated April 23, 1962 noted above. Subsequently there has been a considerable amount of acrimonious correspondence between the two solicitors and personal allegations have been made which I extremely dislike. I will have to deal with the matter so far as costs are concerned later. Ultimately the matter was mentioned before the learned Judge, and Mr. Gangoly expressed his willingness to the order being vacated and the application reheard. The learned Judge, however, did not vacate the order passed but intimated his intention to reconsider the matter if and when a formal application is made. No such formal application was made by the plaintiff. The result Is that the order as minuted, namely, directing the plaintiff to furnish particulars in respect to all the four paragraphs was finally incorporated In the perfected order. This order contains a default clause and the default clause is In these terms:

'And to default of the plaintiff furnishing such particulars as aforesaid within the time aforesaid, this suit will stand dismissed.'

The time within which the plaintiff was directed to furnish the particulars was within a fortnight from the dale of the order, and the fortnight expired on July 7, 1962. The plaintiff within that time did furnish certain particulars in respect to paragraphs 4 and 6 and the plaintiff's solicitor in his letter stated that these are the best particulars that his client was in a position to furnish. As stated before, the plaintiff did not furnish any particulars is respect to paragraphs 1 and 2 as he was not called upon by the defendant's solicitor to furnish the same. The defendant's solicitor only wanted the plain-tiff to furnish the particulars in respect to paragraphs 4 and 6. The defendant's solicitor was apt to think that the particulars furnished in respect to paragraphs 4 and 6 were not in compliance with the order of the Court and were not full particulars and, therefore, the order of the Court had not been complied with. According to the defendant's solicitor, therefore, the suit stood dismissed. It Is to bat noted however that the defendant's solicitor never made the case that the suit stood dismissed because of the failure on the part of the plaintiff's solicitor to furnish the particulars In respect to paragraphs 1 and 2.

14. Mr. Gangoly has contended that, admittedly, the plaintiff had defaulted in furnishing particulars of paragraphs 1 and 2, and whatever be the reason, so long as the order stands there has been non-compliance and the result of the non-compliance Is that the suit stood dismissed with costs. His second contention Is that so far as the particulars furnished with respect to paragraphs 4 and 6 are; concerned, they were not adequate particulars and the purported compliance of the order so far as paragraphs 4 and 6 are concerned ought not to be accepted and it should be held that the plaintiff is in default in furnishing that particulars with respect to paragraphs 4 and 6 as well. In the result the suit stood, dismissed with costs to any event. Painstaking as Mr. Gangoly is, he has taken considerable pains in looking up the authorities and the law on the subject and has made me suffer equal pain in going through those authorities. He argued that in law the suit stood dismissed with costs. Mr. Ganguli is correct in Ms submission that for escertaining the terms of the order, the Court will look to the perfected order and not to the minutes or counsel's endorsement. And even though he and his attorney were under the impression that the plaintiff was called upon to furnish particulars In respect to paragraphs 4 and 6 only, in point of fact, particulars had been directed by the order of the Court in respect to the other two paragraphs as well. For the determination of this question I must proceed upon the footing that the plaintiff was required to fumiah particulars in respect to all the four paragraphs and admittedly he failed to furnish particulars in respect to paragraphs 1 and 2 though he furnished some sort of particulars in respect to paragraphs 4 and 6.

15. Mr. Ganguli contends that so long as the order passed has not been modified or set aside the order stood, and the consequence of non-compliance has got to be faced however great hardship it may involve on any of the parties. Mr. Ganguli, in my opinion, is entitled to make this submission and I accept the same. But the point for consideration, In the first place, is what exactly are the consequence of this order. In this content it is necessary to note that this is the first application for particulars end normally the Court never passes an order with a default clause in a first application for particulars, in case there Is non-compliance of the first order, then the party again comes before the Court with a second application for a peremptory order or for further particulars. It is only in such an application the party in default is directed to furnish further and better particulars as claimed and in default the suit is directed to be struck out. As I said, in the instant case, this was the first application and in the normal course the learned Judge would not have passed an order with a default clause. Secondly, it is to be noted that Mr. Ganguli himself did not ask for particulars with respect to paragraphs 1 and 2 but nevertheless the order was passed with respect to those two paragraphs as well. I can only say that the learned Judge was so much annoyed with the conduct of the plaintiff that not merely did he refuse to grant an adjournment but passed an order in excess of what was asked for by Mr. Ganguli. I am apt to think however that the minutes did not correctly record the order passed. But for the folly and negligence of the attorney's concerned, the mistake would have been corrected and the perfected order would have been consistent with Mr. Ganguli's endorsement. Be that as it may, after the order the defendants' solicitor asked for particulars in respect to paragraphs 4 and 6 of the plaint only. I will construe this demand on the part of the defendants' solicitor to mean that his client did not ask for compliance of the order En respect to paragraphs 1 and 2. The order for particulars was asked at the instance of the defendant and If the defendant chooses to dispense with the furnishing of these particulars, the plaintiff was entitled not to comply with the same and the suit should not be dismissed for such non-compliance.

16. With regard to the particulars furnished in respect to paragraphs 4 and 6, the dispute between the parties is as to whether the particulars are adequate or not The plaintiff has stated that these are the best particulars he was in a position to furnish. The Court always directs a party to furnish the best particulars and if in the instant case the plaintiff says that he is in a position to furnish no better particulars than what has been furnished, the Court has got to accept it. The consequence in such a case may be serious for the plaintiff as the Court may shut out the plaintiff from making a definite case at the time of the trial. That might be the consequence of the plaintiff taking recourse to such duplicity both with the other side as also with the Court. It has been contended by Mr. Ganguli and Mr. Goho that the particulars furnished by the plaintiff is not as good as it should have been. They may be correct. But even if it is so, I am not inclined to visit the plaintiff with the serious consequence of dismissing the suit as the result of my holding that the particulars furnished are not as satisfactory as they ought to have been. This is all the more so, in the instant case where the order for particulars was made on a first application. For the reasons given above, in the facts of the instant case, I would not be justified in dismissing this suit on the ground that the plaintiff has not complied with the order of Ray J. It would be a negation of justice if by accepting Mr. Ganguli's argument I disallow a bona fide and honest claim.

17. In the view I have taken, the question of estoppel or res judicata need not be considered. I was invited to consider the law on the point and various authorities have bean cited by Mr. Ganguly and Mr. Bhabra on this question. It is not necessary for me to discuss all these authorities in the view that I have taken.

18. Mr. Ganguli has addressed an appeal to me that the decree might be confined to the defendants Nos. 1 and 3 and not to defendant No. 2. Had the defendant No. 2 come before me and stated that he had nothing to do with the business, I would have considered seriously whethar the decree should be limited to defendants Nos. 1 and 3 only. Unfortunately, the defendant No. 2 has not come to Court to dissociate himself from the business. There is evidence before me that the defendants are in Calcutta. I had granted a number of adjournments to enable the defendants to come and appear before me m this suit. They have failed to take advantage of the orders passed by me. Even now there is no application before me for an adjournment on any acceptable ground. In that view of the matter, it is impossible for me to leave out the defendant No. 2. ' The decree passed, therefore, will be against ail the three defendants. There will be a decree as claimed with costs. The decree will carry interest at the rate of four per cent per annum and interim interest on the principal amount at the same rate. I certify for two counsel.

19. As I stated before, I am very much dissatisfied with the acrimonious correspondence that has passed between the two attorneys with respect to the particulars. Allegations have been made by the plaintiffs attorney against learned counsel on the other side which I greatly deplore. To indicate my strongest disapproval of such conduct, I direct that the costs of the correspondence between the two attorneys will be disallowed in taxation both as between party and party as well as between attorney and client. The interim injunction will continue.


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