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Colonial Cases

Maneckbai v. Jaichund, 1861

[civil procedure]

Maneckbai v. Jaichund

Supreme Court, India
Sausse C.J., 4-5 July 1861
Source: The Times of India, 8 July 1861

 

SUPREME COURT. - EQUITY SIDE.

Thursday, 4th July 1861.

(BEFORE SIR M. R. SAUSSE, KT.)

MANECKBAI, WIDOW OF LULLOBHOY MOTECHUND vs. KAVELBHAI JAICHUND.

   Mr. White and Mr. Scoble, instructed by Messrs. Scoble and O'Hagan, on behalf of the defendant, moved for an injunction to restrain the plaintiff and her servants from proceeding with the action instituted by her against the defendant in His Highness the Guicowar's Court at Baroda, for the recovery of Rs. 150,000, being her half share in the partnership property of the firm of Virjlall Motichund at Baroda.

   Mr. Anstey and Mr. Dunbar, instructed by Mr. Cumroodeen Tyabjce, for the plaintiff, opposed the motion, and at the same time moved to make rules or orders nisi absolute for an attachment against the defendant, for his disobedience or contempt of the Court's several orders, dated respectively 11th February and 18th April, 1861, in receiving monies on account of  debts due to the partnership, which he was prohibited from doing, and also in refusing to allow the plaintiff and her servants and agents access to the partnership books at Kupperwunge.  And also for the appointment of Kaveldass Javerdass, the moonim of the Bombay firm, to be the general receiver of all the branches of the partnership firms of Virjlall Motichund.

   Mr. White and Mr. Scoble shewed cause, on behalf of the defendant, against the rules or orders nisi being made absolute.

   Several affidavits and counter-affidavits were read to the Court, and commented upon by Counsel on both sides.

   The Chief Justice who took time to read over the affidavits and to consider the matter,  delivered his judgment this morning, which was in substance as follows:-

   Chief Justice. - As to the motion for an order for an injunction, it must be refused with costs, the plaintiff undertaking by his Counsel to lodge in Court all the monies and books recovered in Baroda, within one month after recovery thereof.  As to the plaintiff's order nisi for an attachment, which it is sought to make absolute with respect to the production of books and receipt of monies, it appears that Mr. Justice Arnould's order of 18th April last has not been complied with, either in letter or in spirit, particularly with reference to the book for the present year, the existence of which is no where denied in any of the affidavits.  And with respect to the monies, the receipts of those monies was as clear a breach as could be, of the order of the 11th February 1861.

   I do not think it was intended at the time to make Kaveldass the manager or receiver over all the branches, although that construction may be spelt out of it.  And if he had been brought before the Court for receiving such monies, it would have been sufficient for his protection.  However, I think the true construction to be that, he was not thereby appointed general receiver over all the branches of the firm; not had the plaintiff acted at first as if she thought that to be the construction.  But it is now unnecessary to consider that, for the defendant has himself been guilty of a clear breach of the order, in receiving the money as well as in the other respect of books.  The order for attachment is therefore made absolute with costs.  Mr. Dallas having undertaken to lodge the money in the event of its not being denied to be received.  I order it to be lodged within a fortnight.

   Mr. Dallas says as to the books, that he brought a list from Kupperwunge of all the books.  Now, it appears that some of those books are now missing, and the book for the present year has never been produced at all.  It must be produced, and the books said to be missing are not denied to be missing.  All the books, however, except the ledger for [1916?], were produced at Kupperwunge.  Now, why, except for an improper purpose, they have not been brought down, I cannot understand.  They must be produced.  I have no evidence that there are these books for [1917/], but I have evidence that there was a book, not now produced, for a period downwards, subsequent to the 11th December 1861. Now, Mr. Dallas, in his affidavit, says that defendant has done his best to give access to the books; as he swears that, I suppose he believes it.  But is so, this young man is in the hands of very bad advisers. 

   I order all these books to be produced and lodged in Court, and also those books which are in Mr. Dallas' office.  I do so, because these motions and counter-motions only exhaust the time of the Court and the means of the parties.  These books are the cash books for 1917 from December downwards; the rough and fair cash book for 1916; and the "nond" of 1916.  I have some difficulty as to the "general cash book," for there is no express statement that it is in existence; but only that it is missing.  If, however, there be any difficulty as to this, I shall order Mr. Dallas to produce his list, and to be examined in person on oath.

   I order that the defendant's answers be not filed by the officer without notice to the plaintiff, and that if these books are not then produced, the plaintiff have liberty to move that it be not received, and (not being received) for an order to take the bill pro confesso.  It is suggested that these books have been kept back because they throw light on the claims of the plain tiff.  That suggestion is strongly corroborated by the showing of Mr. Dallas himself in his affidavit, that the question in this suit turns wholly upon the entries in those books.  Those books therefore must be produced.

   As to the third order nisi, that for the appointment of Kaveldas to be general receiver, I think that, in the hostile relations of all parties, Kaveldas ought not to be appointed general received, but that another party should be appointed by the Court.  The general receiver, when appointed, shall have all the powers which the Court can give.  The costs of this part of the motion to be costs in the cause.  The costs of so much as relates to the attachment, to be paid by the defendant who is also to pay the costs of his own refused motion for the injunction.  Let the parties to-morrow morning state whether they have agreed on a proper person to be general receiver of all the branch firms, until the appointment of a general receiver.  Let the Bombay branch firm remain under Kaveldas.

Friday, 5th July, 1861.

   Mr. Anstey, on behalf of the plaintiff, moved for the appointment of a "special bailiff" under the Court's Rule 55, to execute the writ of attachment against the defendant at Ahmedabad, a place beyond the ordinary jurisdiction of this Honourable Court.

   Chief Justice. - I have my doubts about my jurisdiction, as this is only an interlocutory order.  That was   why I put the tack to the order of yesterday, as to the taking of the bill pro confesso, for when that decree is made, you can, under Act 33 of 1852, send it up to be enforced by the Zillah Judge.  I regret the doubts as to jurisdiction, for my wish is to serve the plaintiff as far as possible.  I think that the order made yesterday will be found to be sufficient.  That order is silent as to the attachment, so that it cannot be discharged except upon motion to this Court.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School