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Probode Chunder Mullick and ors. Vs. M. Dowey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal695
AppellantProbode Chunder Mullick and ors.
RespondentM. Dowey
Excerpt:
arrest before judgment - security for personal appearance of defendant--civil procedure code (act xiv of 1882), sections 477, 479--bona fide suit. - .....being that under the contract act he is not personally liable and that the suit is not a bona fide suit. the plaint sets out that the defendant, the master of the barque in question, entered into the contract for repairs, and that the repairs were done at his instance and under his instructions.3. there is no denial of this allegation in the affidavits filed. the defendant does not say that be contracted as agent only, or that the name of his principal was disclosed, or that it was understood that the plaintiffs were to look to his principals and not to him for payment. the affidavit merely declares that the owners of the barque are gentlemen of wealth carrying on business in england and rotterdam and well able to meet any decree that may be passed. there is not in the.....
Judgment:

Macpheeson, J.

1. This is an application under Section 477 of the Civil Procedure Code to take security for the defendant's appearance to answer any decree that may be passed against him in the suit. The plaintiffs are the proprietors of the Hooghly Dock, and the defendant is the master of the ' Roanoke,' described as a barque of 400 tons. The claim amounting to Rs. 9,728 is principally for work done to the vessel while in the plaintiffs' dock, but it includes a charge of Rs. 2,250 for dock hire.

2. The defendant has no domicile in this country; he came to Calcutta in charge of the vessel, and there is no answer to the allegation that he intends to leave as soon as he possibly can, his vessel being under charter for Natal, and that there is no certainty as to whether he will ever return. There is clearly, therefore, reasonable probability that the plaintiffs will be obstructed or delayed in the execution of any decree that may be obtained. The defendant shows cause against the rule which issued, the contentions being that under the Contract Act he is not personally liable and that the suit is not a bona fide suit. The plaint sets out that the defendant, the master of the barque in question, entered into the contract for repairs, and that the repairs were done at his instance and under his instructions.

3. There is no denial of this allegation in the affidavits filed. The defendant does not say that be contracted as agent only, or that the name of his principal was disclosed, or that it was understood that the plaintiffs were to look to his principals and not to him for payment. The affidavit merely declares that the owners of the barque are gentlemen of wealth carrying on business in England and Rotterdam and well able to meet any decree that may be passed. There is not in the affidavits a single circumstance to indicate that the plaintiff's in entering into this contract were dealing with the defendant as an agent, and that they were looking not to him but to some one else for payment, and it is highly improbable that they would do so as regards persons living out of the jurisdiction, whose names they had never heard, and of whose existence, so far as appears, they were ignorant. The mere fact that the defendant was the master of the barque (there is nothing to show that he is not also a part owner), and that the plaintiffs might have ascertained who the owners were, does not rebut the presumption arising under Section 230 of the Contract Act, and I must, on the materials now before me, hold that this section applies and that the defendant is personally liable.

4. The remaining question is as to the suit being a bona fide one, for, if the defendant can show that the suit is not bona fide, that would be good cause.

5. It is admitted that the vessel was in the plaintiffs' dock, from the 21st May to the 22nd June, and that certain repairs were done.

6. The claim may be divided into two parts--as to work done up to the 10th June or under agreements entered into before that date, and work done subsequently, including charges for dock hire. The plaintiffs' claim for the former amounts to Rs. 5,706, and the accounts filed with the defendant's affidavits show that he objects to items aggregating Es. 2,399 for work not done or overcharged.

7. The parties are at issue as to whether the work was done at rates agreed to beforehand or not, and I need only say as to this that the defendant's affidavits do not directly meet the plaintiffs' allegation on this point. If all the objected items were allowed there would still remain a balance in the plaintiffs' favour of Rs. 3,400. It is said no doubt that the work was bad and would not pass a survey, but this is a matter on which I cannot on the materials before me express an opinion, though I may observe that in the correspondence which passed before suit nothing was said of bad work.

8. The remaining part of the claim is of a more disputable character; the defendant not only denies his liability altogether, but counterclaims for a sum of Rs. 3,556 for demurrage and expenses on account of his vessel being improperly detained in the plaintiffs' dock.

9. The questions which will have to be determined are, therefore, whether the vessel remained in dock under circumstances which would entitle the plaintiffs to dock hire or the defendant to demurrage, and whether the work subsequently done was done by the plaintiffs in consequence of injuries arising from their own neglect. I am not going to express any opinion on the merits of these questions. I have only to see whether, looking to the case as a whole, it is a bona fide case, or whether it is a case of a speculative character, and brought with a view to harass or annoy the defendant, or to take advantage of his position and induce him to come to terms which, perhaps, he otherwise would not do. The mere fact that the claim is disputed does not deprive it of the character of bona fides, and if the claim were confined to the Rs. 5,729, I should have made this order without hesitation, because it is beyond doubt that the claim to that extent is an honest claim and based on a substantial foundation. As I have said, even if all the items objected to were disallowed and struck out of the plaintiffs' claim, there would still remain a balance in the plaintiffs' favour, unless the defendant could establish the set-off relied on, or show that the work done was so bad as to be almost worthless. The fact that a person adds on to a claim of that description a claim of a disputable character does not, in my opinion, go to show that the whole claim is not brought in good faith and, in the plaintiffs' estimation, with some prospect of success. If they had any claim at all as regards the latter sums they were bound by law to include it in the present suit or to abandon it altogether. I cannot, therefore, say that the claim is not a bona fide one.

10. It has been urged also that the Court in dealing with this section should apply the principle applicable in England to suits of ne exeat regno. There is no authority for this, and it seems to me that the contention is not consistent with the words of the section. I think if a person comes on business to this country, in which ho has no domicile or property, and enters into a contract with a person to do work in connection with that business, and which must be done before he leaves the country, and it is known that he intends to leave as soon as the work is completed, there is an implied understanding, assuming that the work was done on his credit, that it shall be settled or paid for before he leaves the country. It seems to me, therefore, that the case is one that falls under Section 477, and I must make an order that the defendants must furnish security for his appearance while the suit is pending, and in terms of Section 479 security must be given within a week for the amount of the claim.


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