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Nagendra Nath Chowdhuri Vs. Eraligool Company Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal443,70Ind.Cas.92
AppellantNagendra Nath Chowdhuri
RespondentEraligool Company Ltd.
Cases ReferredSudamdih Coal Co. Ltd. v. Empire Coal Co. Ltd.
Excerpt:
letters patent, (cal.) 1865, clause 12 - 'suit for land,' meaning of--specific performance of agreement to sell land, suit for, if included--agreement made in' calcutta in respect of land in mufussil--high court, original side, jurisdiction of--receiver, appointment of--discretion of court--statutes, construction of. - .....on its original side had no jurisdiction to try the suit and that consequently, inasmuch, as the learned judge had no jurisdiction to entertain the suit, he had no jurisdiction to appoint a receiver. the learned counsel for the defendant argued that the learned judge ought to have tried an issue as to whether this court on its original side had jurisdiction to entertain the suit, before he decided to appoint a receiver.4. we have not the advantage of any judgment of the learned judge and i cannot ascertain to what extent the learned judge considered the question whether the court had jurisdiction to entertain the suit. i agree with the learned counsel that it would have been more satisfactory, to say the least, if the learned judge had decided the question whether the court had.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal from the judgment of my learned brother Mr. Justice Greaves whereby he appointed a Receiver in a suit upon an application of the plaintiff Company. The suit was brought by the plaintiff Company praying that the defendant might be ordered and decreed to carry out the agreement referred to in the plaint and to execute and register the conveyance and for a decree for the sum of Rs. 88,280, being the expenses incurred by the. plaintiff Company in carrying on the estate from the 1st January 1920 to the 14th January 1921 and for the sum of Rs. 1,500 per week from the 14th January 1921 until the defendant would take possession of the said estate less the sum which is referred to in the prayer and for the sum of Rs. 7,800, odd as interest or by way of damages, or, in the alternative, in the event of the Court deciding that the plaintiff Company was not entitled to specific performance for damages.

2. It appears that the Company was-carrying on the business of tea planters in Assam and owned and worked an estate in Assam known as the Eraligool Tea Estate. It was alleged in the plaint that the defendant agreed to purchase the estate for Rs. 2,25,000, the purchase to date from the 1st January 1920, the work on the estate until the completion to be carried on by the plaintiff Company which was to be reimbursed by the defendant for all expenditure as from the 1st January 1920. It was agreed by the learned Counsel that the agreement-was made in Calcutta The plaint further alleged that on the 5th August 1920 the Attorneys of the defendant sent to the plaintiff Company's Attorneys a deed of conveyance prepared from a draft which had been accepted by the plaintiff. Company, duly stamped and engrossed and the plaintiff Company approved the said deed and called upon the defendant to complete the same. It was then alleged that in spite of repeated demands, although the defendant admitted his liability to execute the said conveyance, he refused so to do. The plaint set out the amount of money which the plaintiff Company expended in carrying on the work since the 1st January 1920.

3. The written statement, amongst other matters, referred to certain representations, which it was alleged had been made on behalf of the plaintiff Company and which, it was said, induced the defendant to send the conveyance to the plaintiffs' Attorneys and stated that the defendant had never intended to complete the transaction without a satisfactory investigation of title; that the defendant believed that the plaintiff Company was unable to convey about 100 acres of the entire land of the estate and that consequently, by reason of such shortage, the plaintiff Company was not entitled to specific performance or to damages. The main point, which was argued in this Court, was that this Court on its Original Side had no Jurisdiction to try the suit and that consequently, inasmuch, as the learned Judge had no jurisdiction to entertain the suit, he had no jurisdiction to appoint a Receiver. The learned Counsel for the defendant argued that the learned Judge ought to have tried an issue as to whether this Court on its Original Side had jurisdiction to entertain the suit, before he decided to appoint a Receiver.

4. We have not the advantage of any judgment of the learned Judge and I cannot ascertain to what extent the learned Judge considered the question whether the Court had jurisdiction to entertain the suit. I agree with the learned Counsel that it would have been more satisfactory, to say the least, if the learned Judge had decided the question whether the Court had jurisdiction to entertain the suit before he made an order appointing a Receiver. I do not propose, however, to accede to the learned Counsel's application to remand this question to the learned Judge, because, in my judgment, it would be an unnecessary waste of time and money. The matter has been fully argued and at considerable length in this Court by the learned Counsel for the appellant, and in view of that it seems to me that it would not be right for us to remand this matter to the learned Judge in order that he might try the issue which the learned Counsel argued ought to have been tried in the first instance.

5. The main question, therefore, is: Had this Court jurisdiction to entertain the suit? It is said that this is. a 'suit for land,' and consequently, inasmuch as the land in question is in Assam and outside the local limits of the Ordinary Original Jurisdiction of the High Court, the High Court had no jurisdiction to entertain the suit having regard to the terms of Clause 12 of the Letters Patent, which provides that 'The High Court in the exercise of its Ordinary Original Civil Jurisdiction shall be empowered to, receive, try, and determine suits of every description, if, in the case of suits for land; or other immoveable property, such land or property shall be situated within the local limits of the Ordinary Original Jurisdiction of the said High Court.' If we give to those words, 'suits for land,' their ordinary meaning in the English language, to my mind, it is clear that this suit does not come within the meaning of those words. But the learned Counsel for the appellant drew our attention to certain cases which have been decided by this Court, which go to show that the words, to which I have referred, are hot to be confined to suits for the recovery of land or for the recovery of possession of land; and, the latest case, to which our attention was drawn, was the case of Sudamdih Coal Co. Ltd. v. Empire Coal Co. Ltd. 31 Ind. Cas. 581 : 42 C. 942. In that case the plaintiff. Company, and the defendant Company, who had their registered offices in Calcutta, were the owners of Adjoining collieries, situate in Sudamdih in the District of Manbhuni in the Province of Bihar and Orissa. The boundary between the plaintiffs' and the defendants' properties was demarcated superficially by pillars. It was alleged, by the plaintiffs, but. denied by the defendants, that the plaintiffs had as a protection a barrier of twenty-five feet along the eastern boundary of its property: and the suit was brought for damages for coal which the plaintiffs alleged the defendants; had extracted and the substantial question in dispute in that case, was whether the plaintiffs or the defendants were the owners of the coal in question.

6. The learned Chief justice, Sir Lawrence Jenkins, said this: 'The matter in dispute here relates to a mining property outside the jurisdiction so denned. But on behalf of the plaintiff it is contended that, having regard to the pleadings it cannot be said that it is a suit for land or other immoveable property. The question is what was intended by that expression. It appears to me that it was not a mere formal test that was proposed--a test to be determined by the precise form in which a suit might be framed but that regard was to be had to the substance of the suit, and I cannot help thinking that the particular expression was used, because there was its equivalent in the Civil Procedure Code of 1859, Section 6.' He then went on to say: 'The course of decisions on the Charter shows that the description cannot be limited to suits for the recovery of land in its strict sense, and as to that there can be no dispute and, running on parallel lines with that, we find the Code of Civil Procedure of 1859 developed in 1877, so as to embrace a number of topics which perhaps would not in strictness be regarded as suits for land, and it is instructive to observe what they are.' The learned Chief Justice then described the suits which are included in the section of the Civil Procedure Code which he was discussing and he concluded by saying: 'Therefore, it seems to me that we are not giving a construction that is opposed to the general trend of legal thought if we hold that suits for land at any rate extend to a suit of this kind, which is a suit for compensation for wrong to land, when, as I hold to be the case here, the substantial question is the right to the land.' It is not necessary for me to express any opinion about that case, because, in my judgment, that case does not cover the present one, for it is clear to me that the substantial question between the parties in this case is not the right to the land. The words in Clause 12, if we give to them their natural meaning, in my judgment, cannot be said to cover this suit, which is a suit for specific performance of the agreement, which was made in Calcutta, and to recover a sum of Rs. 88,000 odd said to be due from the defendant to the plaintiffs by reason of that agreement. Some decisions, such as those referred to by the learned Chief Justice in his judgment in the above-mentioned case, seem to have extended the operation of the clause in question beyond the natural meaning of the words 'suits for land,' but. I am not prepared to put an interpretation upon these words, which, as far as I know, has never been given to them hitherto and which, in my judgment, having regard to the natural meaning of the words, is not justified. The case of Land Mortgage Bank v. Sudurudeen Ahmed 19 C. 358 : 9 Ind. Dec. (N.S.) 683 is an authority against the contention of the learned Counsel for the appellant. In my judgment, it cannot be too clearly laid down that in construing a Statute it is necessary for the Court to give the natural meaning to the words which are used, and if it is thought advisable to include cases which are not covered by the words of the Statute in their natural meaning, it is not for the Court to strain the language of the Statute so as to include them, but it is the function of the Legislature to amend the Statute, and the same principle applies to the construction of the Charter. In my judgment, this is not a suit for land within the meaning of Clause 12 of the letters Patent, and the Court had jurisdiction to entertain the suit having regard to the fact that the agreement, which it is sought to enforce, was made in Calcutta. To my mind, that really disposes of this case.

7. The other point, to which the learned Counsel for the appellant referred, was that the learned Judge ought not to have appointed a Receiver, inasmuch as the plaintiffs were themselves in possession of the land and could go on managing the property as they had in the past. But this was a matter for the discretion of the learned Judge--a discretion, which, no doubt, must be exercised judicially and upon well recognised, principles. Having regard to the facts of the case, and especially having regard to the alleged liability of the defendant under the agreement to reimburse the plaintiffs for the money which the plaintiffs had to expend upon the estate after the 1st January 1930, the fact, that the defendant is alleged to have recognised his liability by paying a sum of Rs. 5,000 on or about the 26th August 1920 and to the fact that the defendant's Attorneys sent the conveyance to the plaintiff's Attorneys, it cannot be said that the learned Judge was wrong in exercising his discretion in the appointment of a Receiver. The case of Gibbs v. David (1878) 20 Eq. 373 : 44 L.J. Ch. 770 : 33 L.T. 298 : 23 W.R. 786 may be referred to in this connection. I do not mean to say that the facts in that case are on all fours with the facts in this case; but it is useful for ascertaining the principles upon which a Receiver may be appointed.

8. For these reasons, in my judgment, the learned Judge's order should be upheld and the appeal should be dismissed without costs.

Richardson, J.

9. I agree. The suit is brought by the vendors for specific performance of an agreement made in Calcutta to sell a tea estate at Eraligool in Assam and the main question which now arises is whether the suit is a suit for land within the meaning of Clause 12 of the letters Patent. If so, the land being outside the local limits of the Ordinary Original Jurisdiction, the Court had no power to entertain the suit in that jurisdiction, and, therefore, no power to make the interlocutory order appointing a Receiver of the property, from which this appeal has been preferred by the defendant. The question perhaps assumes more importance now than it may originally have done, because, we are informed, that a learned Judge, other than the learned Judge who made the order, has in the meanwhile given the Receiver leave to sell the property.

10. To the best of my judgment, on the argument addressed to us, this is not a 'suit for land', either within the natural meaning of those words or within the meaning which has been given to them in previous decisions of this Court. It has been held that a suit in the nature of a suit by a purchaser for specific performance is a suit for land: Sreenath Roy v. Cally Das Ghose 5. C. 82 : 2 Ind. Cas. (N.S.) 663 There, however the claim for specific performance was not pressed. On the other hand in Land Mortgage Bank v. Sudurudeen Ahmed 19 C. 358 : 9 Ind. Dec. (N.S.) 683 it was held m reference to a vendor's suit that it was not a 'suit for land.' It is sought to distinguish that case on the ground that at the beginning of the judgment, where the facts are set out it was expressly stated that the title was not in dispute. Mr. H.D. Bose, appearing for the defendant, referred us to the plaint in the present case, where the plaintiffs describe themselves as the owners and workers of this Tea Estate. He also referred us to paragraphs 4-13 of the written statement where a question is raised as to the title of the plaintiffs in respect of about 100 acres out of the 1 of which form the subject-matter of the agreement. But nothing can be decided in this suit between vendor and purchaser which will directly affect the land or bind third parties who may have or may claim rights therein adverse to those of the plaintiffs. The title, if it comes in question will come in question incidentally with reference to the main issue whether the defendant should or should not be held his bargain, but whatever the result of the suit may be as between the plaintiffs and the defendant, as against third parties, the existing title, whether it remains in the plaintiffs or passes to the defendant will remain precisely what it now is. If the title passes, the defendant will step into the shoes of the plaintiffs. We are asked to apply the test indicated by Sir Lawrence Jenkins, C.J., in Sudamdih Coal Co. Ltd. v. Empire Coal Co. Ltd. 31 Ind. Cas. 581 : 42 C. 942 but, in my opinion, the suit cannot be regarded as being in substance a suit for land within that test.

11. I have said that the agreement was made in Calcutta and I gather that the agreed price was to be paid in Calcutta. There is no dispute, therefore, that if the suit is not a suit for land; leave man properly given to institute it on the Original Side.

12. On the other point which was argued, I agree with my Lord that the learned Judge having seisin of the suit, it was open to him, in the exercise of his discretion, to appoint a Receiver.

13. In the result the appeal should, in my opinion, be dismissed.


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