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The Bengal Stone Company Ld. Vs. Joseph Isaac Joseph Hyam and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.738
AppellantThe Bengal Stone Company Ld.
RespondentJoseph Isaac Joseph Hyam and anr.
Cases ReferredTolputt v. Mole
Excerpt:
contract act (ix of 1872), section 15 - coercion--refusal to convey equity of redemption except on certain terms--costs--discretion, exercise of--solicitor acting on his own behalf, costs of. - .....to be considered as in force.3. now, those were the two main issues that were to be tried by the learned judge, and i must say i am distressed to think that this action took no less than sixteen days in trial. in my view, it should have been obvious, unless the learned judge was satisfied that there had been an account stated between the parties, that there must be a reference for the purpose of an account to be taken between the parties, and how the case which (with the exception of one or two subsidiary matters the facts relating to which lay in a small compass) was limited to these two questions, first, whether there had been an account stated, and secondly, whether the letter of the 22nd of august 1911 had been obtained by coercion, could have taken sixteen days for trial, is.....
Judgment:

Lancelot Sanderson, C.J.

1. This was an action brought by the plaintiffs for an account in respect of certain building transactions which were undertaken by the defendants for the plaintiffs, Mr. Hyam and Mr. Jones. Those building transactions were undertaken in pursuance of an agreement dated the 21st of January 1909. It is not necessary for me for the purpose of this case to deal in any detail with the terms of that agreement. It is sufficient for me to state that the defendants, the Bengal Stone Company, Ld., were to erect two sets of premises, one in Park Street, and the other in Bow Bazar Street, and that they were not to be liable to spend on all accounts more than a specified sum of money, and the method of payment was that 'the owners (the plaintiffs in this case) should pay the Stone Company (the defendants) for all materials the actual cost price thereof plus all charges and expenses actually paid or incurred by the Stone Company in collecting and placing the same on site and also the actual cost of all labour employed by the contractors in or about the erections of the buildings and of completing and equipping the same in terms of the agreement.' There were provisions for the remuneration of their services in respect of supervision and other matters, and then the payment of a sum equal to ten per cent, on the aggregate amount of all the items specified in the said clause of the agreement was provided for. The buildings were completed, although not within the specified time. There was also a provision in the agreement that a mortgage should be given by the owners of one of the premises to secure a sum of money which was eventually agreed upon Rs. 2,50,000.

2. Now, this action was brought, as I have said, primarily for an account. When it came on for trial, there were really two main questions, first, the point raised by the defendents, that there had been an account stated between the plaintiffs and the defendants, and that consequently the plaintiffs were not entitled to an account; and, secondly, the point raised by the plaintiffs that a certain letter which was dated the 22nd of August 1911 was obtained from the plaintiffs by the coercion of the defendants. That was a letter in these terms:

In consideration of the Bengal Stone Co., Ltd., this day reconveying and releasing the premises Nos. 294 and 295, Bow Bazar Street, mortgaged by us to the Bengal Stone Co., Ltd., we hereby admit and acknowledge that the said reconveyance and release only relates to the said premises Nos. 294 and 295, Bow Bazar Street, and we hereby undertake to pay the said Bengal Stone Co., Ltd., not later than the 31stDecember 1911 any sum which may hereafter be found to be due from us to the said Bengal Stone Co., Ltd., under or in connection with the agreement dated the 21st January 1909 and made between the said Bengal Stone Co., Ltd., of the one part and ourselves of the other part. We hereby also agree to forego any and all claims that we may have had or have against you in respect of delays in completion of the buildings at Park Street and Bow Bazar Street and will only make such corrections in your bills and accounts as we may find to be erroneously or excessively charged. All other items of the contract agreement dated 2lst January 1909 to be considered as in force.

3. Now, those were the two main issues that were to be tried by the learned Judge, and I must say I am distressed to think that this action took no less than sixteen days in trial. In my view, it should have been obvious, unless the learned Judge was satisfied that there had been an account stated between the parties, that there must be a reference for the purpose of an account to be taken between the parties, and how the case which (with the exception of one or two subsidiary matters the facts relating to which lay in a small compass) was limited to these two questions, first, whether there had been an account stated, and secondly, whether the letter of the 22nd of August 1911 had been obtained by coercion, could have taken sixteen days for trial, is certainly beyond my comprehension.

4. Now, with regard to the first point, the learned Judge has found that there was not an account stated. We have heard the arguments on the one side as well as on the other, we have read the learned Judge's judgment, and the facts to which he referred, and have heard the facts put forward by the learned Counsel for the defendants and I think, even assuming the facts which he has stated, that, there was not an account stated between the parties: and, for this reason we did not think it necessary for him to go through the evidence as he had offered to do.

5. With regard to the other point, we agree with the learned Judge that the letter of the 22nd of August 1911 was not obtained by coercion. The section upon which this matter depends is Section 15 of the Indian Contract Act. In order to understand that section, it is necessary to refer to Sections 13 and 14. Section 13 says: Two or more persons are said to consent when they agree upon the same thing in the same sense. 'Section 14 says: Consent is said to be free when it is not caused by--(1) coercion, as defined in Section 15, or (2) undue influence, as defined in Section 16, or (3) fraud, as defined in Section 17, or (4) misrepresentation, as defined in Section 18, or (5) mistake, subject to the provisions of Sections 20, 21 and 22.' The only Sub-section of Section 14 which can be said to apply to this case is Sub-section (1), namely: 'Coercion, as defined in Section 15.' Section 15 says: 'Coercion is the committing, or threatening, to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.' It is admitted that the present case does not come within the meaning of the first part of that section, namely, 'the committing, or threatening to commit, any act forbidden by the Indian Penal Code.' But it is said that what happened in this case, to which I will refer more in detail directly, brings the matter within the words unlawfully detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.' What happened in this case was this: shortly stated, Mr. Hyam and Mr. Jones had mortgaged this property at Bow Bazar Street to the defendants for Rs. 2,50,000. Mr. Hyam was anxious--Mr. Jones was away and Mr. Hyam was acting on behalf of Mr. Jones--to sell the premises, and apparently he got a purchaser, but he was not a very willing purchaser, and it was necessary for him to get the equity of redemption conveyed to him by the mortgagees. There was a discussion first of all as to whether Mr. Hyam would give a promissory note--I ought to have said that the defendants were alleging that the total of their bills would amount to a considerable sum above Rs. 2,50,000. He was unwilling to give the promissory note. Then an arrangement was come to whereby Mr. Hyam agreed to pay over the balance of the purchase-money, after deducting the amount which would be required for the first mortgage of the property, and also a sum of Rs. 4,000 as brokerage. It would leave about Rs. 2,80,000 and he agreed to pay over that. Now, he alleges that that discussion amounted to 'a threatening to detain any property to the prejudice of any person with the intention of causing any person to enter into an agreement.' The property which Mr. Hyam, the learned Counsel who argued the case on behalf of the respondents, relied upon was the equity of redemption; and, he said that the defendants threatened to detain the equity of redemption and there was an unlawful detaining or threatening to detain,' inasmuch as the defendants were refusing to convey the equity of redemption unless they were paid more than the sum secured by the mortgage. In my judgment, that was not unlawfully detaining or threatening to detain any property, within the meaning of Section 15.

6. With regard to the law of duress in England, it is well known that that was limited, and no doubt for very good reasons limited, to the duress of person, and I may quote the following passage whieh I fin stated in a convenient form at page 351 of the Third Edition of Leake on Contract, 'Duress may also consist of threats of personal violence. But the fear must concern the safety of the person of a man; and not his house or goods, because he may recover the same, or damages to the value, without any corporal hurt. Again, if the fear do concern the person, yet it must not be a vain fear, but such as may befall a constant man. Fear of imprisonment is sufficient, for the law has special regard to the safety and liberty of a man,' (that is a quotation from Co. Lit. 2536). Apparently, when the Legislature was considering this matter for the purpose of applying the law to India, they thought it right to extend it and not to limit the law of coercion to a coercion of a man's person but extended it beyond the law of England to unlawfully detaining or threatening to detain any property. I ask myself, can it ever have been intended to apply it to such a transaction as has occurred in this case? Can it be said that when a person who has refused to convey the equity of redemption except on certain terms has unlawfully detained or threatened to detain any property within the meaning of Section 15 of the Indian Contract Act. Having regard to the ordinary meaning of the English language, I have no hesitation in saying that the refusal to convey the equity of redemption, except on certain terms, did not come within the meaning of Section 15. I think that the learned Judge was right in saying that what took place in this case did not amount to coercion. Therefore, I think that the plaintiffs' cross-objection upon the question of coercion fails.

7. Then Mr. Hyam for the plaintiffs raised two other points which I may describe as less important points. The first one was that the learned Judge was wrong in finding that the defendants were not bound to charge the rates of labour which were specified by the letter of the 22nd of December 1908. I think that the learned Judge was right. That letter, as I have said, was written on the 22nd December 1908, and the contract was not made until the 21st of January 1909. I have read the clause which relates to the rate of labour. I read it again to make my meaning clear. 'The owners should pay also the actual cost of all labour employed by the contractors in or about the erections of the buildings and of completing and equipping the same in terms of this agreement,' In my judgment that is a clause which governs this matter, inasmuch as it was made subsequently to the 22nd of December 1903; I do not think it is possible for us to say that it was implied that the rates of labour specified in the letter of the 22nd of December were to be incorporated in the contract. If it had been so intended, one would have expected the contract to contain some such words as these that the owners should pay also the actual cost of all labour, having regard to the rates of labour which had been agreed upon between, the parties on the 22nd of December 1908.'

8. The other point was that the learned Judge misunderstood the evidence with regard to the steam-plant. What he says is this: 'in respect of the steam-plants I accept the version put forward by the defendant Company, and I hold that they are entitled to charge the plaintiffs Rs. 150 per plant per month for the actual period during which the steam-plants were working on the sites.' We have been referred to the evidence. In my judgment there was sufficient evidence on which the learned Judge could arrive at that conclusion, and I see no reason for interfering with his decision upon a question of fact in that respect. That disposes of the main points that were raised in this appeal. As I have already said, it must have been obvious from the beginning of the case, as it was obvious from the beginning of the appeal, that the matter must ultimately go to reference: and, the result is that the matter must now go to the Official Referee, unless the parties agree upon some other person who can take an account quicker and more expeditiously: and, after considering the arguments on both sides, I think that the learned Judge was right in the form of the order by which he directed it. It has been read by Mr. Buckland at my request, and I do not propose to read it again. I do not think that the form of the order as to the account ought to be interfered with at all.

9. Then comes the question of costs. The learned Judge made an order as to the costs in these terms: 'It is further ordered and decreed the defendant Company do pay to the plaintiffs their costs of this suit upto and including this decree to be taxed by the Taxing Officer of this Court under the heading 'Class 2 ordinary causes.'' In my judgment that was not a correct direction as regards the costs. There was a clear and distinct issue raised by the plaintiffs that the letter of the 22nd of December 1911 had been obtained by the coercion of the defendants. The learned Judge has not given any direction as to the costs of that issue: and, although the plaintiffs failed upon that issue, he has given the plaintiffs the costs of the whole trial of the action. Now, it is quite true that this Court is most averse to interfere with the discretion of a learned Judge upon the question of costs. But the discretion of the learned Judge upon the question of costs has to be exercised judicially, and the ordinary rule is that a party who succeeds upon a particular issue gets the costs of that issue, unless there is a good cause for depriving him of the costs of that issue and unless the issues in the case are so closely connected that they cannot be separated one from the other. That is not the case here: It was a quite clear and distinct issue in this case, quite apart from the rest of the case. I have asked myself what good cause there was for depriving the defendants of the costs of that issue. I find none. Therefore, I think the learned Judge was not right in the exercise of his discretion in depriving the defendants of the costs of that issue without a good cause. In my judgment, the defendants ought to have the costs of the issue relating to the question whether the letter of the 22nd of August 1911 was obtained by coercion. But it would be difficult in view of the protracted nature of the trial, as pointed out by Mr. Hyam, the learned Counsel for the plaintiffs, for the Taxing Offioer at this stage, without going into the matter at length and putting the parties to a considerable expense, to come to a satisfactory conclusion as to what costs should be allocated to the issue of coercion, and I think we shall be doing substantial justice if we direct that one-third of the costs of this suit ought to be allocated to the issue of coercion and two-thirds of the costs ought to be allocated to the other issues.

10. Therefore, as regards the costs of the suit, I think the plaintiff ought to have two-thirds of the costs of the suit and the defendants ought to have one-third; and, the costs ought to be taxed upon that basis, for the reason that the defendants have succeeded on the issue of coercion and the plaintiffs have succeeded upon the issue whether there was an account stated.

11. As regards the costs of this appeal, I think that each party ought to bear his own costs, for the reason that the plaintiffs have failed in part and the defendants have also failed in part and both the defendants and the plaintiffs have succeeded to some extent.

12. As regards the costs of the reference, those costs will be in the discretion of the Official Referee or the person who takes the reference.

13. As regards the last point taken by Mr. Buckland on behalf of the defendants, mainly that there ought to be a special direction as regards the costs of Mr. Jones, the point is this: It appears that Mr. Jones is a solicitor, and that at one time he was in partnership with Mr. Mitter, carrying on business under the name of Jones and Co.; Mr. Mitter died early in these proceedings, it is said before the affidavit of documents was put in. Therefore, sub-stantially, we may say that Mr. Jones was acting as solicitor in this case on behalf of the plaintiffs. The question is whether we ought to give a direction to the Taxing Offioer to tax the costs upon the principle of the rule which is laid down in the case of London Scottish Benefit Society v. Chorley (1884) 13 Q.B.D. 872 : 53 L.J.Q.B. 551 : 51 L.T. 100 : 32 W.R. 781. That was an action brought against the solicitors for money not accounted for. The learned Judge, Sir William Brett, Master of the Rolls, said this: 'it is true, however, to say that the costs of a solicitor appearing in person must be taxed differently from those of an ordinary litigant appearing by a solicitor. The unsuccessful adversary of a solicitor appearing in person cannot be charged for what does not exist, he oannot be charged for the solicitor consulting himself or instructing himself or attending upon himself. The true rule seems to be that when a solicitor brings or defends an action in person, he is entitled to the same costs as an ordinary litiganj; appearing in person, subject to this restriction, that no costs which are really unnecessary can be recovered. Of this kind are the costs of instructions and attendances.' The report says 'an ordinary litigant appearing in person', which is a mistake as appears from the title of errata and should read by an ordinary litigant appearing by a solicitor. The rule laid down by this case and affirmed in Tolputt v. Mole (1911) L.K.B. 886 : 80 L.J.K.B. 686 : 104 L.T. 118 : 55 S.J. 293. is that the solicitor is, entitled to the same costs as if he had employed a solicitor, except in respect of items which the fact of his acting directly rendered unnecessary. We propose to give a direction to the Taxing Offioer that he should tax the costs of Mr. Jones upon the principle laid down in that case.

14. We think that the costs of the paper-book in the appeal should be equally divided between the parties in this case.

15. Mookerjee, J.--I agree.


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