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Mulchand Jhoomer Vs. G.R. Martindale - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1928Cal756
AppellantMulchand Jhoomer
RespondentG.R. Martindale
Cases ReferredSwire Mellor v. Swire
Excerpt:
- .....order that an order made by me on 12th december 1927, be amended by the deletion of the words 'all account books, papers, memoranda and writings relating thereto.' the notice also says that the defendant will ask for an order that he is entitled to the possession and delivery to him of all the books and documents whatsoever relating to his business. the draft forms of order which were sent to the parties contained the clause which is now objected to. it is as follows:and ft is further ordered that the plaintiff firm and all parsons claiming under thorn do deliver up quiet possession of the said goods together with all account books, papers, memoranda and writings relating thereto to the said receivers.4. neither of the solicitors to the parties objected to the presence of that clause in.....
Judgment:
ORDER

Costello, J.

1. This is an application to vary an order after it has been passed by the Registrar of this Court and entered. In a matter of this kind I think the practice in this country is the same as if is in England namely as laid down by Lord Justice Cotton in the case of In re : Swire Mellor v. Swire [1885] 30 Ch. D. 239 at p. 242, where the learned Lord Justice says:

The regular course is this that when an order is settled any party who desired to object to the terms of it as settled should intimate to the Registrar that he intends to give a notice of motion to vary the order. He must state what variation he desires and then he must move the Court, at the risk of costs, to have that variation made. It is the duty of the Registrar at once to pass and enter the order when settled, unless some of the parties-state that they intend to move to vary it. It would cause delay in the Registrar's office it any one, by simply saying 'I object to that form of order' without giving notice to vary it, could prevent the Registrar from going on to pass and enter it.

2. Then the learned Lord Justice goes to say;

but although that is the regular course, and it is only in special circumstances that the Court will interfere with an order which has been passed and entered, except in oases of a mere slip or verbal inaccuracy yet in my opinion the Court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction which it will in a proper case exercise to correct its record, that it may be in accordance with the order really pronounced.

3. I entirely agree with the observations, of the learned Lord Justice and as I have said I think that is the correct statement of the law as applicable in this Court as well as the Courts in England. The whole question, therefore, which I have to determine is whether or not in the circumstances of this case I ought to interfere with the order which has been passed and entered, because ibis clear and it is not disputed that in the present instance the ordinary course was followed and the Registrar sent to the solicitors of the parties the draft form of order and each of these solicitors returned these drafts to the Registrar with certain alterations and signed it as being approved by him subject to such alterations; the notice of motion in the present case is to the effect that the defendant asks for an order that an order made by me on 12th December 1927, be amended by the deletion of the words 'all account books, papers, memoranda and writings relating thereto.' The notice also says that the defendant will ask for an order that he is entitled to the possession and delivery to him of all the books and documents whatsoever relating to his business. The draft forms of order which were sent to the parties contained the clause which is now objected to. It is as follows:

And ft is further ordered that the plaintiff firm and all parsons claiming under thorn do deliver up quiet possession of the said goods together with all account books, papers, memoranda and writings relating thereto to the said Receivers.

4. Neither of the solicitors to the parties objected to the presence of that clause in the draft order, but only made certain other alterations in the draft. Accordingly it may be said that they 'settled' the order and it was passed by the Registrar and entered by him.

5. Now it is said on behalf of the defendant that I ought to order the deletion of the clause relating to account books and so on the ground that the order as it stands does not really represent the intention and meaning of the order which I made on 12th December 1927, and to a large degree that is so, because so far as my recollection goes (and it is admitted on both sides to be correct) nothing whatever was said on that occasion with regard to the account books and papers and other writings relating to the goods in question in the suit. It is true that in his affidavit the defendant did explain at the time that the 'financier' on or about the date mentioned seized

my stock-books, bill-books, bill-registers, chalan-books and order books and that they still hold the same and refused to return them is spite of demands.

6. Now what happened on 12th December was that in a sense there was a consent order or rather an order by consent in that various terms were suggested to the parties and accepted by them as being the kind of order which ought to be made in the circumstances of the case and the effect of that order was that the 'Barlock' type-writers which were seized by the plaintiff and also certain other goods which the defendant had in his possession for sale on commission all those goods would be put into the hands of the Receivers to be sold by them and the sale proceeds retained by them pending the determination of the issues in the suit. It was conceded, by the learned Counsel for the plaintiff that certain furniture belonging to the defendant had also been seized by the plaintiff and in particular certain office articles and office furniture was seized and I came to the conclusion that in order that the defendant might properly be in a position to continue carrying on his business those articles ought to be held by the Receivers and made available for the use of the defendant in order that he should not be hampered in the continuance of his business. It may well be that had the question of the account books, papers and memoranda and writing relating to the goods been specifically mentioned I should have made a similar order with regard to them. However as I have pointed out nothing was said with regard to the destination of the documents in the case but on the other hand the order was drawn up in the manner which I have already described. On a subsequent occasion an application was made to me that the terms of that order might be complied with by the plaintiff in that they should be ordered to hand over to the Receivers the books of account and so on and in fact that has been done.

7. The position now is that these account books, papers, memoranda and other writings etc., are in the hands of the Receivers and in fact in the physical possession of one of the Receivers who happens to be the solicitor of the defendant. The second part of the order now asks for that the defendant himself should be put into the possession of all these books and other documents. I am, however, informed by the counsel for the plaintiff that the question of the ownership and title to these documents is one of the matters in dispute in the suit and the plaintiff also says that he takes the view that there might be a risk that the documents may be tampered with. Be that as it may, I think having regard to the fact that nothing whatsoever was said about the books of account at the time when the matter was originally before me and therefore there can be any real question of carrying the original intention and meaning of the order which I then made, it is not right that I should amend the order as drawn up and apparently settled and approved by the solicitors for the parties. It is desirable that nothing should be done to hamper but at the same time nothing should be done which might in any way injuriously affect the rights of the plaintiffs seeing therefore that the ownership and title to these documents in dispute. I think on the whole it is desirable that they should be in the hands of the Receivers. They should however give every possible facility to the defendant for making use of the books for the purpose of carrying on the business pending the trial of the action.

8. The suit is fixed to be tried on 19th February which is only a short time from this day. In all the circumstances of the case I do not think that the defendant can be seriously damnified if the documents remain in the custody of the Receivers. Looking at the matter as a whole and having regard to the consideration I have mentioned I do not think this is a case where I ought to interfere with the order as settled, passed and entered nor do I think that having regard to the question of title of these documents which has been raised that I ought to deal with the matter on an interlocutory application otherwise than to insure the preservation of the property in dispute and that both parties should have such access as is necessary for protecting their interests. It follows therefore that this application must be dismissed. Costs-costs in the cause.


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