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Durgaprasad Vs. Kantichandra Mukerji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal1
AppellantDurgaprasad
RespondentKantichandra Mukerji
Cases ReferredSennaji Kapurchand v. Pannaji Devichan
Excerpt:
- costello, j.1. these two appeals arise out of a judgment delivered by buckland, j., on 19th december 1933. as a result of that judgment, two orders were made. the suit in which these orders were made was suit no. 2151 of 1933, and it was a suit brought by kantichandra mukerji, the official receiver, as the receiver appointed in suit no. 1395 of 1933. the defendants were six persons, namely, durgaprasad, gangadhar and satnarayan-all three residing at kucha chelan at delhi, and described as traders and landholders, and satnarayan dalmia, deokinandan dalmia and sedmull dalmia-all residing at and carrying on business at no. 133, cotton street, in calcutta and they were described as landholders.2. in order to appreciate how this suit came into existence, it is necessary to say something about.....
Judgment:

Costello, J.

1. These two appeals arise out of a judgment delivered by Buckland, J., on 19th December 1933. As a result of that judgment, two orders were made. The suit in which these orders were made was Suit No. 2151 of 1933, and it was a suit brought by Kantichandra Mukerji, the Official Receiver, as the receiver appointed in Suit No. 1395 of 1933. The defendants were six persons, namely, Durgaprasad, Gangadhar and Satnarayan-all three residing at Kucha Chelan at Delhi, and described as traders and landholders, and Satnarayan Dalmia, Deokinandan Dalmia and Sedmull Dalmia-all residing at and carrying on business at No. 133, Cotton Street, in Calcutta and they were described as landholders.

2. In order to appreciate how this suit came into existence, it is necessary to say something about the relationship of these six persons and the history of the litigation which had taken place between them. The first three defendants carried on business, in Delhi, as a firm, described as Parasram Harnandroy, and the other three defendants carried on business in Calcutta, as a firm under the name and style of Hargobindroy Mathuradas and all these six persons carried on business in partnership, under the name and style of Harnandroy Badridas. In the month of March 1933, a suit was instituted, in the Court of the Subordinate Judge of Delhi, being Suit No. 52 of 1933, in which the plaintiff was Durgaprasad and that suit was for dissolution of the partnership carried on in the name of Harnandroy Badridas. As a counterblast to that, a suit was instituted in this Court, being Suit No. 747 of 1933, on 4th April 1933, by the partners of the Calcutta firm, who have been described in the proceedings as the Dalmias. This suit was brought by Satnarayan-one of the Dalmias against the partners in the Calcutta firm and by the partners in the Delhi firm for dissolution of the larger partnership. We are not really concerned with those two suits, because in June 1933, there was a compromise arrived at, whereby that litigation was terminated. Both the suits were compromised by an agreement, made on 1st June 1933, and there was some subsequent arrangement on 5th June 1933. The compromise was recorded in the Delhi suit, that is to say, in Suit No. 52 of 1933, and as a part of the settlement, the Calcutta suit was withdrawn. It is of some importance to see what were the terms of that compromise. So far as they are material they appear in sub-paragraphs of para. 4 of the petition, which was put forward before the Court at Delhi, upon which the compromise was recorded and sub-paras. (a) and (b) are in these terms:

(a) That R.B.L. Sedmull will produce all the account books, papers and records of the period of partnership for the purposes of said accounting which may afterwards be delivered to such person as may be directed to receive by Seth Satnarayan of the first party. His decision will be binding on all the parties,

and

(b) That accounts of the partnership shall be taken and R.B.L. Sedmull will render all the accounts, etc., etc.

3. Those two matters were consequential upon the main term of the compromise, which was that the partnership business hitherto carried on at No. 69, Cotton Street, under the management of the second party, should stand dissolved, as from 24th March 1933, and the parties agreed to divide the assets and the liabilities of the partnership on the terms set out in the same sub-paragraph. On 29th June 1933, another suit was started, in Calcutta, in which Satnarayan was the plaintiff and the defendants were Sedmull and Deokinandan. That suit was, in a sense, of a domestic character, because it was merely for dissolution of the partnership existing between those persons. The importance of it is that in that suit there was an application for the appointment of a receiver and an order was made, by consent, in which a receiver was appointed of the joint properties of the parties, and what those properties consisted of was set forth in the document called Sch. 'B.' It is argued before us, in this appeal, that those properties did not include the interest which these persons had in the larger firm which in the proceedings before Buckland, J., was described as firm C. On 11th September the Official Receiver, of this Court, was appointed receiver in that suit, and it is by reason of that fact that the present proceedings have arisen. Previously, on 14th July 1933, three attorneys of this Court had been appointed receivers and they purported to have taken possession of the properties of the partnership, including such interests as the partners had in the firm C. In that state of affairs, a suit was started in the Court of the Subordinate Judge at Delhi, which is Suit No. 72 of 1933. That suit was brought by Durgaprasad against the other five persons, who had been his partners in the larger firm, and the reliefs claimed by him were as follows:

(a) That it be declared that partnership between the plaintiff and defendants 4 and 5 with defendants 1 to 3 known as Harnandroy Badridas 69, Cotton Street, has been validly dissolved;

(b) It be declared that the parties are bound by the arrangement, dated 1st June 1933 and 5th June 1933;

4. (That arrangement, of course, was the compromise, to which I have already referred, by which the two suits, No. 52 of 1933, and No. 747 of 1933, were settled).

(c) That accounts of the partnership business, assets and profit be taken;

(d) Receiver of the partnership affairs, business, assets and properties be appointed;

(e) Such amounts, shares and properties securities, as may be found due to the plaintiff, defendants 4 and 5 be awarded to them against defendants 1 to 3 or such of them as may be found liable:

and then there was a general prayer for costs and for such further or other reliefs as the Court might think fit to award. That suit was instituted on 10th August 1933. It should be observed that it comes in between the date when the three attorneys were appointed receivers in what has been called the domestic suit-suit No. 1395 of 1933-and the date when the Official Receiver was appointed receiver in that suit. It is clear to my mind, that broadly speaking, in this new Delhi suit No. 72 of 1933, the plaintiff was seeking three things: (1) enforcement of the effect of the compromise, (2) dissolution of the larger partnership known as Harnandroy Badridas and (3) the taking of accounts which would necessarily be consequential upon the dissolution of the partnership; and, on the face of it one would have thought that as all the six partners were on the record in that suit and parties to the suit which was of a partnership character, the determination of that suit would once and for all settle the differences that obviously existed between these different groups of partners and possibly between them individually. But it so happened that the Subordinate Judge of Delhi made certain interim orders which however were only of the kind one would have expected to be made in a suit of that nature.

5. Following on the orders however there was some correspondence between the Subordinate Judge of Delhi and the Official Receiver of this Court. It is not necessary, I think, that I should refer to it in any great detail but, in effect, it was to give intimation that the Delhi Court had attached some of the properties, of the defendants in the Delhi suit, which were in the hands of the Official Receiver of this Court, in his capacity as receiver, appointed in suit No. 1395 of 1933. The first letter was dated 24th October 1933, and in reply to that the Official Receiver of this Court, on 3rd/4th November 1933, acknowledged receipt of a copy of the order of attachment before judgment, issued by the Additional Subordinate Judge of Delhi. The next event of any importance was that, on 3rd November 1933, the Delhi Court appointed a gentleman named Lala Hemchand as interim receiver in the Delhi suit-suit No. 72 of 1933, and Mr. Hemchand, having been appointed, proceeded to make a demand on the Official Receiver of this Court, requiring in effect, that all assets and the books of account, which were in the hands of the Official Receiver, should be made over to this interim receiver, who had been appointed in the Delhi suit. I have no doubt, that it would be right to say, that the communications from the Additional Subordinate Judge of Delhi to the Official Receiver of this Court were not couched in the most tactful language. It is perhaps not altogether surprising therefore that the Official Receiver seemed to consider that his dignity was affected, and that he was being interfered with, if not harassed, in his capacity as receiver in suit No. 1395 of 1933, According to the statement made by learned Counsel before us, the Official Receiver took counsel's opinion and indeed, he says so in his own petition before this Court, and, as a result, he launched the suit out of which this matter arises, that is, as already mentioned, suit No. 2151 of 1933.

6. It is to be observed that the Official Receiver made himself plaintiff in that suit and all the members of the two smaller partnerships and of the larger partnership defendants in the suit This suit was filed on 13th November 1933. On the same day, the Official Receiver had obtained leave, from this Court, to file that suit. It was, of course, necessary before filing the suit, in his capacity as receiver, that, he should get the leave of the Court, which had appointed him receiver. Further, on the same date-the 13th November-the Official Receiver, as plaintiff in the suit obtained an interim injunction, as the result of a petition, presented by him, for the purpose. In that petition, he asked for an injunction, against the first three defendants, and their servants and agents, restraining them from proceeding further with suit No. 72 of 1933, that is to say, the Delhi suit, or from enforcing the orders dated 3rd November 1933, in any manner whatsoever. The main order of 3rd November, was the one which I have already mentioned, namely the order appointing Lala Hemchand interim receiver in suit No. 72. The petition also prayed for the appointment of a receiver of the books of account of the firm of Harnandroy Badridas, and such further or other orders as might be necessary. On 13th November, an interim order was, in fact, made granting the interim injunction and appointing the plaintiff himself as interim receiver and a Rule was issued, returnable on 27th November, calling upon some of the defendants, that is to say, the first three defendants, to show cause why the order should not be made as prayed for. Before I deal with the subsequent history of that order it is necessary, I think, that I should refer to the plaint in the suit. The concise statement is in these terms:

This is a suit for accounts o the dissolved partnership firm carried on under the name of Harnandroy Badridas; for winding up of the said business; for a 'declaration that the attachment made under the orders of the Delhi Court it illegal and is not binding on the plaintiff; for an injunction restraining the defendant Durgaprasad from proceeding with the said suit No. 72 of 1933, or from enforcing the said orders, dated 3rd November 1933, in any manner whatsoever; for appointment of receiver; and for other necessary directions and inquiries.

7. In the plaint the reliefs claimed' were tabulated thus:

(2) That accounts be taken and the said partnership, that is to say, the partnership of Harnandroy Badridas be wound up by and under the directions of this Court; (3) A declaration that the attachment made under the said orders is illegal and is not binding on the plaintiff; (4) An injunction restraining the defendant Durgaprassed from proceeding with the said suit No. 72 of 1933, or from enforcing the said orders, dated 3rd November 1933, in any manner whatsoever; (5) That receiver be appointed; (6) That all directions be given, inquiries ordered and accounts taken as may be necessary, etc, etc.

8. It is obvious that the Official Receiver was really functioning, as the plaintiff in this suit, in the place of defendants 4, 5 and 6, that is to say, the Dalmias, they having been restrained, by an order of the Delhi Court, from taking any action in this Court, or in any other Court, in their own names. It seems a little difficult to understand what precisely the status of the Official Receiver in this matter was. No doubt, in his capacity as the receiver appointed in suit No. 1395 of 1933, it was his business to take the accounts and settle the partnership matter, as between the Dalmias. I dare say it is arguable that, in his capacity as receiver in that suit No. 1395 of 1933, he might, in one sense, take possession of or, at any rate, have some sort of interest in the Dalmias' share in the partnership in Harnandroy Badridas. Speaking for myself however, I cannot understand how it was possible for him, standing outside that partnership, as it were, to bring a suit in the nature of a partnership action and make all the six persons forming that partnership defendants. One can only suppose that one of two things happened: either as his petition of 13th November seems to indicate, he did so, in order to vindicate his own dignity and position, as an officer of this Court, and in order to counteract the interim order, made by the Subordinate Judge; or else, he was acting in his supposed interest of the three Dalmias, they not being able to take any action themselves. We are however fortunately, as I think, not concerned with that aspect of the matter because a learned Judge of this Court did think fit to give Kantichandra Mukerji leave to institute the proceedings; but in dealing with this matter, one must, I think, go a little below the surface and examine the real nature and intent of this suit No. 2151 of 1933. I have stated that, on 13th November a rule was issued. It was returnable on 27th November, and the plaintiff had obtained the injunction he wanted, as a temporary measure, restraining Durgaprasad, Gangadhar and Satnarayan, that is to say, the Delhi partners from proceeding with suit. No. 72. Before the rule was, in fact, further discussed, that is to say, on 29th November, a notice was given on behalf of Durgaprasad, who seems to be the leading spirit, on behalf of the Delhi firm, which notice was returnable on 4th December. By that notice, the plaintiff and the other five defendants were given notice that an application would be made for an order that all proceedings in the suit should be stayed until the disposal of suit No. 72 of 1933, in the Court of the Subordinate Judge at Delhi, in which Durgaprasad was the plaintiff and Satnarayan and others were the defendants. So that on 29th November the position was this: The Official Receiver, as plaintiff in suit No. 2151 of 1933, had obtained an interim injunction which might have had the effect of holding up, if not putting an end to, the proceedings in Suit No. 72 of 1933. That injunction was granted against the plaintiff, preventing him from proceeding with the suit, and it is for that reason that the plaintiff in that suit was asking that the Official Receiver's suit in this Court should be stayed pending the disposal of Delhi suit. Both these matters came on for determination on 4th December, and, eventually, judgment was given, as I said, at the outset, on 19th December, by Buckland, J. The effect of that judgment was that the application, on the part of the plaintiff, for an injunction was granted and the application, on the part of Durgaprasad, for stay of Suit No. 2151 was refused.

9. If the matter rests there the position will be that the plaintiff in the Delhi suit, i.e., Durgaprasad will be in the position of being restrained from going on with that suit, until after the suit in this Court has been decided. It therefore comes to this. Is that a situation which we ought to confirm? Two orders have been made, as the outcome of the judgment, and therefore there are two appeals-in effect, in the nature of cross appeals-and they have been argued before us on that kind of basis. It appears that either one of the orders must be dependent upon the other; as for example if this suit were stayed then it would seem not to be right that an injunction should be granted preventing any further progress with the Delhi suit. That would merely create a perpetual deadlock.

10. Mr. P.R. Das, who appeared before us on behalf of the principal defendant in this suit, argued that the matter ought to be dealt with upon the basis of three points, which may be labelled comity of Courts, convenience of the parties, and the common sense of the situation. I have no doubt that a great deal can be said in support of each of those aspects of the matter. But Mr. Das really rested his case on the provisions of Section 10, Civil P.C. That section reads as follows:

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in British India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of British India established or continued by the Governor-General in Council and having like jurisdiction, or before His Majesty in Council.

11. It has been argued before us that the matter in issue in the suit out of which the present proceedings arise, that is to say, in Suit No. 2151 of 1933, is directly and substantially in issue in a previously instituted suit, that is to say, Suit No. 72 of 1933, in the Court of the Subordinate Judge at Delhi, and that these two suits are between the same parties. It is by reason of this last element in the situation that I thought it apt to say that, in my opinion one ought to dive a little below the surface and ascertain what this Suit No. 2151 of 1933 really is. I cannot have any doubt that although the Official Receiver is ostensibly the plaintiff, we ought to deal with the matter upon the footing that the real plaintiffs are the Dalmias. The present suit is concerned with the business of and the partnership disputes and differences between the six partners and undoubtedly the Delhi Suit No. 72 of 1933 is between those same six partners. Therefore we may take it that, to all intents and purposes, the parties are the same, find indeed it has not been seriously argued, or argued at all, nor even suggested, that is not the position, as regards the parties. What has been argued, as against the applicability of Section 10, is that the matters in issue are not the same. Mr. P.R. Das for the principal defendant-if I may so describe Mr. Durgaprasad-relies upon the section, because he says it is clear that the matters in issue are identical, and the Calcutta suit is nothing more or less than a unwarranted counterblast to the Delhi suit; or to put it in another way: this is, in effect, nothing but a cross suit in the sense that in the Delhi suit the plaintiff is asking for certain reliefs and in the Calcutta suit the same reliefs are sought for, though perhaps under a slightly different phraseology. I have set out the reliefs claimed in these two suits respectively, for the purpose of making a comparison, in connexion with the question whether Section 10 can rightly be said to apply, or not. If it does then it would seem that the Calcutta suit should not be allowed to go on, and in that case, the injunction asked for by the plaintiff should not have been granted, but on the contrary the application of Durgaprasad should have been granted.

12. Buckland, J., in his judgment, seems to have taken the view that it might well be that the matter in issue in the Calcutta suit was substantially the same as that in the Delhi suit but that the application of Duragaprasad was premature. The learned Judge says in this connexion:

A further point made by learned Counsel on behalf of Deokinandan is that, in this Court at least, no written statements Have been filed, and that in the Delhi Court one or, it may be, two written statements have been filed, and that until the pleadings are closed in the suit, in each Court, it is not possible to say that any matter in issue is also directly and substantially in issue in a previously instituted suit, in other Court, or even what is in issue. This contention, also, in my judgment, is well-founded and for these reasons the application made on behalf of the defendants must fail.

13. The learned Judge had previously said this:

Section 10 is not, as I read it, intended to permit of an application being made, at an early stage, to stay all proceedings in another Court, as it is now sought to have done.

14. In that view of the matter, the learned Judge dismissed the application of Durgaprasad and in consequence, and no doubt, inevitably, he then made absolute the rule which had been obtained by the plaintiff. It does therefore seem from the passages which I have cited from the judgment, that the learned Judge, to put the matter no higher, was by no means certain that these two suits would not, at any rate, ultimately, be found to be, for all practical purposes, identical as regards the matters in issue between the parties. Putting into juxtaposition the reliefs claimed, it seems to me that the matters in issue can be concisely stated thus: In each of the suits what was being sought was an enforcement of the effect of the compromise arrived at on 3rd June 1933, with a view to terminating the partnership known as Harnandroy Badridas, and the taking of accounts and the squaring up of affairs as between all the former partners-the six persons who had composed that firm. Upon that view of the matter, prima facie, at any rate, it does appear that there is sufficient resemblance between these two suits to attract the operation of Section 10.

15. Mr. Chatterjee, who appeared on behalf of the plaintiff-the Official Receiver-argued however and argued with considerable cogency, that amongst the reliefs claimed in this suit there were certain matters which could not and would not be decided in the Delhi suit. They were those contained in prayers (3) and (4) of the plaint in the present suit, viz:

A declaration that the attachment made under the said orders is illegal and is not binding on the plaintiff.

and

an injunction restraining the defendant Durgaprasad from proceeding with the said suit No. 72 of 1933, or from enforcing the said orders dated 3rd November 1933, in any manner whatsoever.

16. It is to be observed that, as regards the attachment the legality of which was impugned in the plaint in this suit, that was made merely by an interim order and was in the nature of an interlocutory proceeding in the Delhi suit. In any event, it was only in a sense ancillary to that suit, a mere incident, though perhaps an important one, but an incident in the progress of that suit from its initiation to its final determination. As regards the injunction which is asked for in this suit, it is obvious that in any case, where there is a subsequent suit which is said to cover the grounds already traversed by a previous suit, it is easy enough to put in such a prayer, and thus endeavour to provide a method of escaping from the operation of Section 10. It might be no more than a subtle device to include an application for injunction, as one of the reliefs claimed, in order to put a blemish upon an otherwise immaculate resemblance. In my opinion, the asking for a declaration and for an injunction cannot be said to be claiming reliefs of such a character as to spoil what would otherwise be the identity of the two suits. Looking at the matter therefore from a common sense and on a reasonably broad basis, upon a careful consideration of the reliefs claimed in these two suits respectively, one is bound in my judgment to come to the conclusion that suit No. 2151 is a suit in which the matters in issue are also directly and substantially in issue in a previously instituted suit, namely, suit No. 72 of 1933, in the Court of the Subordinate Judge of Delhi.

17. I ought perhaps to make one or two further observations with regard to the contention put forward by Mr. Chatterjee to the effect that the reliefs claimed in Clauses (3) and (4) of the prayer distinguish this present suit No. 2151, i.e., the Calcutta suit, from the Delhi suit. Mr. Chatterjee relied on certain authorities in support of his contentions, the first of which was the case of Bepin Behari Majumdar v. Jogendra Chandra Ghosh 1917 Cal 248. That case is useful in that it emphasises the proposition that the object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits, in respect of the same matter in issue; but it is really of no avail in support of Mr. Chatterjee's argument, because there the second suit was concerned with a claim for rent for a period subsequent to that included in the previously instituted suit for rent. So I should have thought that it would have been very difficult for any one even to argue that the matter in issue in the second suit was substantially the same as that in the first suit; for it is clear that the decision in the first suit would not necessarily conclude the matter in issue in the second suit.

18. Another case, on which Mr. Chatterjee relied, was the case of Jamini Nath Mallik v. Midnapur Zamindary Co. 1923 Cal 716. There two suits involving claims for certain cesses against the petitioners were decided against them and were pending in appeal, when another suit was brought against the petitioners. They thereupon applied for stay of the suit, under Section 10, Civil P.C., inasmuch as it concerned cesses alleged to be due for a subsequent period. The present Chief Justice held that though for this purpose, that is to say, for the purpose of Section 10, suits include appeals, Section 10 did not apply to the case before him, because it was a suit for a different debt altogether, and for a debt which was not in existence when the last of the previous suits was brought. Mr. Chatterjee relied upon a passage in the judgment which appears at p. 774 and runs as follows:

But it must be observed that a judgment for the recovery of subsequent cesses does not differ merely as being for a different form of relief. It is the same kind of relief for an entirely separate subject-matter, namely, a debt which was not in existence at all at the time of the previous suit.

19. Mr. Chatterjee sought to found, on that passage, his argument to the effect that the claim comprised in the prayer for declaration and the prayer for injunction was not in existence at the time when the Delhi suit was instituted. I have already dealt, in effect, with that aspect of the matter. I have pointed out that kind of claims Could always, and quite reasonably, if not necessarily, be added to the reliefs claimed in a subsequent suit where, otherwise, the matters in issue would have been identical with those in the prior suit.

20. Finally, Mr. Chatterjee referred us to the case of Balkishan v. Kishan Lal (1889) 11 All 148. That again, in my opinion, does not afford much support to Mr. Chatterjee's argument. On the contrary, it is mainly noteworthy for the fact that Mahmood, J., pointed out at p. 155 that:

The policy of the law is to confine the plaintiff to one litigation, thus obviating the possibility of contradictory verdicts by two or more Courts in respect of the same relief.

21. In my opinion, in endeavouring to arrive at a correct decision, as to whether a subsequent suit is 'parallel,' to use the words of the authorities, to a previous suit, one must have regard to the position of affairs at the time when each of the suits was, respectively, instituted and further to what would be the position of affairs when both the suits have been tried and finally determined. It is to be noted that the provisions in Section 19 have been put in front of those contained in Section 11. The real criterion to apply is this. Supposing, the first suit was determined; would the position then be that when the second suit was instituted the matters raised in the second suit were res judicata by reason of the decision of the prior suit? In that way, the provisions of Section 10, logically and naturally, precede Section 11. Applying that test, it seems to me that if the Delhi suit were tried out and judgment given in that suit, the matters substantially in issue in the Calcutta suit would indeed then be res judicata. To put the matter in another way, all the matters really at issue between the half a dozen partners would have been finally determined by the decision in the Delhi suit. That aspect of the matter has been touched upon by the learned Judge in his judgment (p. 32 of the paper-book) where he says:

The learned Advocate-General has elaborated the point by submitting that the Section (that is to say, Section 10) is intended, merely; to prevent the trial by one Court of an issue in another pending suit, of earlier date, in another Court. For the purposes of his argument, he has made reference to Section 11, the familiar section relating to res judicata. The universal practice, where the issue of res judicata is raised, is for the Court, at the hearing of the suit, in which that issue is raised, to try it at the hearing. Why should a different practice prevail where it is contended that Section 10 applies?

22. So that the learned Judge, inferentially, seems to say that although if the Delhi suit had been determined and then the Calcutta suit was started the matter in the second suit might be res judicata, that is a question which ought not to be decided until a later stage of the suit. In that connection, one must bear in mind that Section 10 itself does say that no Court shall proceed with the trial of a suit. Therefore, it is, no doubt, arguable that nothing need be done, or indeed ought to be done, till the stage has been reached at which the 'trial' in the strict sense of the word has commenced or is about to commence. I have already |indicated that Buckland, J., thought that the moment was not ripe for the application made by Durgaprasad; but, in my opinion, the real position is this: It is mandatory upon the Court not to proceed with the trial of any suit in which the matter raised is also raised in a previously instituted suit. That is not to say, however, that it is not also discretionary with the Court to stop the proceedings at an earlier stage. Indeed one would have thought-I say this, of course, with the greatest possible respect to the learned Judge whose judgment we are now considering-that as a matter of common sense and convenience, generally speaking, if it is satisfactorily demonstrated that the second suit is 'parallel' to the first suit, then the best course for everybody concerned would be to put a stay upon or to arrest altogether the second suit at the earliest possible moment. At any rate, there seems to be no bar, in law, to that course being adopted, and actually such a course was adopted by Imam, J., in the case of Padamsee Narainjee v. Lakhamsee Raisee 1917 Cal 637. In that case a man who carried on business at Karachi employed a man as his agent in Calcutta, and on 16th February 1915, the Karachi employer instituted a suit in the Court of Judicial Commissioner of Sind, at Karachi, against his Calcutta agent, for an account and for the recovery of whatever sum might be found due on the taking of such account. On 10th March 1915, the agent retaliated, if I may use the expression, by instituting, in the High Court of Calcutta, a suit which is the case now cited. The Calcutta agent instituted that suit against his Karachi employer for recovery of a certain sum of money, or in the alternative, for an account. Thereupon, the employer applied to the High Court of Calcutta to have the suit which had been instituted in that Court stayed pending the determination of the suit which he himself had instituted at Karachi. In giving judgment Imam, J., said:

Both the suits admittedly relate to the same contracts between the parties and the only question that requires to be considered is whether the Karachi Court has jurisdiction to grant the relief claimed, In the suit at Karachi the plaint sets out allegations that clearly give jurisdiction to that Court to try the case. Those allegations may be wholly untrue, but it is not for this Court to pronounce on them for the purpose of this application-jurisdiction does not depend upon actual facts but upon the allegations made concerning them. This suit therefore cannot be proceeded with. The suit will be stayed till the determination of the suit at Karachi.

23. It would seem therefore that Imam, J., stayed the Calcutta suit at a very early stage in its career. I see no reason why that course should not be adopted in connection with the matter now before us. Holding, as I do, that the matter in issue in suit No. 2151 of 1933 is also directly and substantially in issue in the suit previously instituted in the Court of the Subordinate Judge at Delhi, I arrive at the conclusion that suit No. 2151 of 1933 ought to be stayed and so the application made by Durgaprasad, dated 29th November 1933, ought to be granted. The moment one has come to that conclusion, it obviously inevitably follows that the application made by the plaintiff Kantichandra Mukherji ought to be refused, and therefore the Rule which he obtained on 13th November 1933 ought to be discharged. If the Calcutta suit is stayed, it follows that there is no necessity for the plaintiff, or anyone else, to be appointed receiver in that suit, and therefore it is a consequential matter that the order appointing him interim receiver should be vacated also. Both the matters of injunction and receiver are comprehended in the Rule. Therefore I think it is sufficient to say that the Rule should be discharged. In my judgment, for the reasons I have given, both these appeals should be allowed. As regards costs, I think the appellant should get, from the plaintiff respondent one set of hearing, costs, assessed on the basis of an appeal from a decree. He will get his general costs in both the appeals. The appellant will also get his costs, one set, in the original Court.

Panckridge, J.

24. I agree but I desire to add certain observations. At the outset of the appeal, counsel for the respondent indicated that he proposed to argue that no appeal lay from the order refusing to stay the Calcutta suit. At a later stage, he stated that he did not propose to press this contention. I have merely referred to it because there is a direct authority on the point, the Bombay High Court having, recently, held that an order refusing to stay a suit to which, it is said, the provisions of Section 10 apply, is a judgment within Clause 15 of the Letters Patent and is appealable. To my mind the reasoning of Sir John Beaumont, C.J., and Blackwell, J., as appearing in the judgment in the case of Jivanlal Narsi v. Pirojshaw Vakharia & Co. 1933 Bom 85, is conclusive. I think it right to state my opinion on this point in case the matter is raised in a future appeal.

25. With regard to the orders appealed against, as has been pointed out, the learned Judge in the Court of first instance did not come to a conclusion whether the matter in issue in the Calcutta suit was also directly and substantially in issue in the previously instituted suit. He expressed the opinion that it was not possible to come to any decision on the matter until at least the pleadings in the two suits were closed. This proposition may be true of certain classes of suits, but it should, I think, be borne in mind that suits for dissolution of partnerships and the taking of partnership accounts are in many respects different from ordinary suits, and authorities having reference to suits other than partnership suits are sometimes of no great value when a partnership suit has to be considered. Looking at the two plaints I find no difficulty in coming to a conclusion that the matter in issue in the Calcutta suit is directly and substantially in issue in the Delhi suit. The matter in issue in both suits appears to me the rights and liabilities of the partners inter se upon the dissolution of the partnership.

26. I do not agree that the suit is one for the enforcement of the agreement of 1st June 1933, or of the modification of that agreement as arrived at on 5th June 1933. My reason for saying so is that those agreements contemplated the taking of the accounts without the intervention of the Court, while both the plaints ask that accounts should be taken by the Court. I think if the plaints are properly analysed the result is that the allegations as to what happened in June 1933, are only relevant as showing how it has come about that the parties have had to seek the intervention of the Court. I do not consider that what I may call the identity of the second suit with the former suit is in any way affected by the fact that a declaration is prayed as to the illegality of certain interlocutory orders that have been made in the Delhi suit. The respondent has taken no steps to have these orders set aside by the Judge who made them; nor has he invoked the powers of the tribunal, whatever it may be, to whose appellate jurisdiction the Judge is subordinate. In these circumstances, I do not think that the fact that a declaration is prayed for as to the illegality of those orders can change a suit for partnership accounts into a suit for something else. I need add nothing to what has fallen from my Lord on the subject of the prayer for an injunction. As has been pointed out, if such a prayer can be held to make the second suit different from the former suit for the purpose of Section 10, it is open to any plaintiff who has already been made a defendant in another suit to embark on a parallel course of litigation merely by inserting in his plaint a prayer for injunction to restrain the defendant from proceeding with the prior suit instituted by him.

27. This being so, I have to consider whether the learned Judge was right in holding that even if the matter in issue in both the suits was the same, the application to stay the suit was premature. As has been pointed out, a general order for stay has frequently been made long before the stage of the actual trial has been reached. Indeed in the case to which the learned Judge refers-Sennaji Kapurchand v. Pannaji Devichan 1922 Bom 276-the order had been made as an interlocutory order and before the suit was ripe for hearing, and it was not suggested that order was without jurisdiction, for the case was merely concerned with what powers, if any, remained with the Court after it had made the order for stay. I have no doubt that in a proper case the Court has power to stay a suit, generally, at any stage at which it seems expedient to do so. In the present case, I can see no reason at all for permitting this suit to continue if, as I hold, it falls within Section 10. Indeed, there are very many reasons why, if it is going to be stayed, it should be stayed at the earliest opportunity.

28. With regard to the respondent's claim for an interim injunction I notice that the learned Judge attached considerable weight to the fact that it appeared to him that the Official Receiver had been interfered with in the discharge of his duties. I wish to express no opinion as to the facts, but assuming the views of the learned Judge to be correct, I do not think it would justify an injunction restraining the plaintiff in the Delhi suit, generally, though I can imagine cases where this Court would restrain the plaintiff from taking any particular step, and would punish him for contempt if he would take it; but I can see no reason why he should be absolutely restrained from proceeding with the suit either because he has interfered with the Official Receiver or because it is thought likely that he may do so in the future.

29. It has been urged by the respondent that it will be more convenient to have the suit tried here rather than in Delhi. Having regard to the various authorities to which reference has been made, I think it must be conceded that the Court has jurisdiction to restrain a defendant from litigating in another Court on the grounds of convenience. I am not satisfied however that the allegations of the respondent are correct or the balance of convenience is so clearly in favour of the proceedings being conducted in Calcutta that the defendant should be restrained from continuing the Delhi proceedings. I notice in the affidavit of the Official Receiver that the point he has made is not so much the inconvenience to which the Dalmias will be put, in their capacity as partners in the firm of Harnandroy Badridas, but the inconvenience to which both he and the Dalmias would be put in taking accounts in what is called the domestic litigation. I do not think that this is a consideration which ought to have much weight with us in deciding the matter. As I have said I agree with the order as formulated by my Lord.


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