{"id":70140,"date":"1962-06-18T00:00:00","date_gmt":"1962-06-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mitra-mukherjee-and-co-and-anr-vs-ajit-kumar-sarkar-on-18-june-1962"},"modified":"2017-01-22T11:37:14","modified_gmt":"2017-01-22T06:07:14","slug":"mitra-mukherjee-and-co-and-anr-vs-ajit-kumar-sarkar-on-18-june-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mitra-mukherjee-and-co-and-anr-vs-ajit-kumar-sarkar-on-18-june-1962","title":{"rendered":"Mitra Mukherjee And Co. And Anr. vs Ajit Kumar Sarkar on 18 June, 1962"},"content":{"rendered":"
Calcutta High Court<\/div>\n
Mitra Mukherjee And Co. And Anr. vs Ajit Kumar Sarkar on 18 June, 1962<\/div>\n
Equivalent citations: AIR 1963 Cal 11, 66 CWN 1061<\/div>\n
Author: G Mitter<\/div>\n
Bench: D Sinha, G Mitter<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 G.K. Mitter, J. <\/p>\n
 1. This is an appeal from an order directing the defendants in the suit to furnish security to the extent of Rs. 6500\/- for the satisfaction of the-plaintiff’s claim by depositing the said sum with<\/p>\n
the defendants’ attorney to be held by him free from any lien and subject to further orders of this court, in default whereof the plaintiff was to be entitled to a decree for the amount claimed in the suit.\n<\/p>\n
 2. The suit is for price of goods sold and delivered, the plaintiff being one Ajit Kumar Sarkar who describes himself in the plaint as the Managing Agent of a Colliery known as ‘Beldanga Khas Colliery’ of which the proprietors were some persons by the name of Tewaries. According to the plaint the supplies were made and the coals were delivered to the defendant No. 1 at rates controlled by the Central Government, inter alia
\non the terms that the bills would be payable, within 60 days from the date of presentation and the plaintiff would be entitled to charge interest at 12 per cent per annum, if the bills were not so paid. The particulars of the plaintiff’s claim are given in paragraph 5 as based on four separate bills for Rs. 3,023-12, Rs. 410-3-9, Rs. 1,757-1-6 and Rs. 803-12-6. There was no privity of contract between the Colliery or the plaintiff on the one hand and the defendant No. 2, a Company registered under the Indian Companies Act which came into existence after the dates of the contracts on the other. The only cause of action alleged against the second defendant is that under an agreement inter se the defendants the defendant No. 2 has taken over all the assets and liabilities of the defendant No. 1 impliedly warranting that it would be the liability of defendant No. 2 to the plaintiff.\n<\/p>\n
 3. On an application being made under Chapter XIII-A for final judgment for the amount of the claim an affidavit-in-opposition was affirmed by one Amarendra Nath Mukherjee, a partner of the first defendant and a Managing Director of the second defendant. Various defences to the plaintiff’s claim have been taken in this affidavit but I need mention only two of them. The first and foremost is that the plaintiff has no right to sue and has no cause of action against either of the defendants. According to the deponent the plaintiff Ajit Kumar Sarkar was held out as the Managing Agent of the Tewaris Beldanga Khas Colliery and S. C. Tewari and others were held
\nout as the Proprietors of the said Colliery and the defendant firm. Mitra Mukherjee and Co. dealt with them on that basis. The deponent goes on to state that orders were placed on the said Colliery for supplies of Steam Coal on inter alia the following terms and conditions :\n<\/p>\n
 (a) That the Steam Coal ordered to be sup-lied were to be consigned by the said Colliery by Railway to the consignees named by the defendant Mitra Mukherjee and Co., <\/p>\n
 (b) That the prices of Steam Coal so supplied would become due and payable upon such consignments being effected.\n<\/p>\n
 The deponent refers to the bills for the supplies of coal received by it, copies whereof are annexed to the affidavit of Amarendra Nath Mukherjee. These four bills go to show that defendant firm Mitra Mukherjee and Co. was a debtor to the Tewaris’ Beldanga Khas Colliery for the amounts mentioned in the bills. All these bills were sent<\/p>\n
by   the  plaintiff   Ajit Kumar   Sarkar   for   Tewaris’ Beldanga Khas Colliery and he is described in  the
\nbills as the Managing Agent of the said Colliery.\n<\/p>\n
 4. The second defence is that the defendant No. 1 sold and delivered to Messrs. A. Sircar and Sons Ltd. of which the plaintiff was the Managing Agent, diverse quantities of coal of the aggregate value of Rs. 22793.83nP. Out of this Messrs. A. Sircar and Sons Ltd. made payments from time to time totalling Rs. 16,084-68 nP. and with regard to the balance of Rs. 6,709-20 nP. due to the firm an agreement was arrived at on the 9th of August, 1958 between Tewaris’ Beldanga Khas Cooliery, Messrs. A. Sircar and Sons Ltd, and the defendant firm that the claims under the four bills which are the subject matter of this suit would be adjusted against the claims of defendant No. 1 against A. Sircar and Sons Ltd. The only document in support of this agreement is a letter of demand written by the defendants’ solicitor to Messrs. A. Sircar and Sons Ltd. on the 30th May, 1958 to which no reply seems to have been given.\n<\/p>\n
 5. However, that may be, it is not possible to take into consideration the tripartite agreement alleged in the affidavit-in-opposition only on the basis of the uncorroborated testimony of the affidavit of Amarendra Nath Mukherjee and the letter of demand sent by the solicitor. In the affidavit in reply of the plaintiff it is admitted that the defendant No. 1 placed orders with the Colliery of which he was the Managing Agent. The only letter which shows demand for payment is one dated the 2nd of October, 1956 signed by the plaintiff A. K. Sarkar written on the letter head of Tewaris’ Beldanga Khas Colliery asking for payment of three of the bills mentioned in the plaint. As this letter forms part of the annexures to the affidavit-in-reply the defendant had no chance of explaining the same or of referring to any reply which may have been given thereto. Even this letter does not show that the defendant firm was indebted to the plaintiff.\n<\/p>\n
 6. In the plaint as well as in the affidavit in support of the summons the plaintiff relies on two agreements described as Managing Agency agreements — one dated the, 29th July, 1954 and the other dated the 9th May, 1947 between the plaintiff and the proprietors of Beldanga Khas Colliery under which the plaintiff claims to have obtained the right to enter upon and work the colliery, make out bills in the names of the Colliery etc. and to be responsible only for payment of certain profits at agreed rates to the proprietors of the Colliery. It is no where alleged that the defendants entered into an agreement with the colliery with the knowledge of the Managing Agency agreement or that the defendants knew full well that the plaintiff was the contracting party for the supplies of coal. Whether the plaintiff will ultimately succeed at the hearing of the suit on the strength of the Managing Agency Agreements or on the ground that the plaintiff had an agency coupled with interest it is not possible to predict at this stage. Suffice it to say that the admitted documents do not support the plaintiff’s case that the contract was between him on the one hand and the defendant firm on<\/p>\n
the other. It cannot, therefore, be said that the defendant’s dispute of the right of the plaintiff to file the suit is not a bona fide one or that the defence in this regard is sham. In my view there is a triable issue between the plaintiff and the defendant No. 1 with regard to the plaintiff’s right to sue. As the learned Judge who made the order did not deliver any judgment it is not possible to say what were the materials which influenced him to take the course he did, but it is enough to say that on the materials disclosed there was a triable issue and the defendant No. 1 was entitled to unconditional leave to defend the suit.\n<\/p>\n
 7. So far as the defendant No. 1 is concerned the plaintiff does not seem to have any cause of action at all as against it.\n<\/p>\n
 8.     Mr.   Banerjee,   learned  counsel   for   the plaintiff,    raised   a   preliminary   objection   that   as the  defendants  have    preferred    an    appeal    only from   the  order   directing   the   furnishing   of   security   and   not   from  the   decree   which  was   drawn up   later the appeal   ought   not  to   be   allowed  as it will  leave  the decree  untouched.     In  my  opinion   this  objection   is   not   sound.     The   decree  in this  case   does   not   stand  by   itself   but  rests   on the order for furnishing security and was expressly conditional  on   the   defendants’   failure   to   furnish security.    If we find  that the  order for furnishing security should  not have  been made  and allow an appeal therefrom,  the decree which is based on the order  should   automatically    disappear    and    there should  be   no occasion   for   filing   an   appeal  from the   decree   which   will  only   go   to   swell   up   the costs.     In  the   case   of   G.   Sundaram  Chettiar   v. P.   A.   Valli   Ammal,   ILR   58   Mad   116    :    (AIR 1935  Mad  43) on a suit filed  under the provisions of   Order   37  of  C.   P.   Code   based   on  a   promissory note the  Master  of  the  Madras High  Court  being of   the   opinion    that    the    defence   was    not   bona fide  gave   leave   to   defend   on   condition   that  the defendant   should,  within a    week,    pay    the    full amount  claimed in the  plaint  into  Court.     Stone, J.   upheld  the  Master’s  order  granting  conditional leave  to   defend but varied   the   condition  altering it  to  one of security  for  the  full  amount  claimed in  the suit to be given within fourteen  days from the date of the order.    The security was not given and  the   decree  was  drawn   up.     No   appeal   was preferred   from  the  decree   and   the    only    appeal filed  by   the   defendant    was    against    Stone   J.’s order  imposing  the   condition.     It   was   urged    before  the    division    bench    of    the    Madras    High Court   that   where   a   decree   had   been   passed   and no appeal had been presented against it  the court of  appeal had no  proper  seisin of the  matter  and could   not   order   stay   of   execution.      As  against this  it   was   argued   that   if the   appeal   presented was allowed and it was found that Stone J.’s order was   wrong   then  the decree   which  was   passed   in consequence  of   it   was   of  no   force.    The   learned Judges  of the   Madras   High   Court   after  referring to  the  judgment    of    this   court    in    Talebali    v. Abdul Aziz   (FB)   held   that   the  appellant’s   contention  should be  given  effect  to.    As  against  this  Mr.   Banerjee drew our attention  to    the    case   of    Haji    Mohamuddin   and Co.   v.   The   Eastern   Japan Trading
\nCo.,   ILR  50 Cal  215   ;   (AIR   1923   Cal  639).    In this case a  suit  was  brought  for the  balance due in   respect   of   certain  drafts.     The   plaintiff   presented     an    application    for    attachment     before judgment   and   the   defendants   were   called   upon to  show cause  why they  should   not  furnish security   for the   claim   and costs  of   the   plaintiffs   or why,   in    default,    their    stock-in-trade    at    55-11 Canning  Street  should  not  be  attached   until  the final     determination   of   the  suit   or   until  further order  of the    court.    Buckland,    J.    ordered    the defendant  firm  to  give security    at    once   to    the satisfaction   of   the Registrar  of  this  court to  the extent  of   the   plaintiff  firm’s   claim   and  costs   in the  suit  in   default thereof a  writ of attachment was   to   issue   out of  and   under the   seal   of this court commanding the sheriff of Calcutta to attach until   the final  determination  of this  suit  or until further   order   of   this   court   the  stock-in-trade   of the  defendant  firm lying at    No.    55-11    Canning Street,     Calcutta.       An    appeal    being    preferred against the said  order it  was  contended by counsel   for  the   plaintiffs   that   no   appeal   lay   therefrom.     Considering  the     provisions of  Order  38   and O.   43  of the   Code   of   Civil   Procedure  Sanderson C.  J.   said   that   in   his  judgment   taking  the   said provisions  as a guide  it might  reasonably be held that the order in so  far as it directed  the attachment  of  the   property,   was   a   judgment  and   was appealable, but in so far as it directed security to be  furnished,   it   was  not   appealable.     It   was  to this  observation   that    Mr.     Banerjee    referred   in support   of   his   contention  that  as   the   order   appealed from   is  one  for  furnishing security   no  appeal  lay from  it and that even if we  are disposed to   hold   that  on   the   facts   of   the  case   that   the defendants   have  disclosed   a   good   and   bona  fide defence   we   could   not entertain   any   appeal   from the   order  directing    the    furnishing    of    security. The   proposition   seems  to  be   an   astounding   one. The  result of  the  order  is  that if  security  is not furnished   a   decree   against   the  defendants   would be  drawn  up and  as a matter of fact a  decree has been   drawn  up  and   the   suit   finally   disposed  of. It  is  absurd  to  suggest that such an order is  not appealable or that there is any reason to hold that the   appeal   from  the order   directing    security    to be   furnished  is   not   maintainable.     The   effect  of non-compliance with the  order,   as I  have  already pointed   out,   is  to   deprive    the    defendants   of  a valuable  right,   namely,   to   defend   the    suit    and clearly in such a case it can not be said  that the order  directing security,   in   default  whereof  a decree  was   to be   drawn   up  against   the  defendants is not appealable.     This point  in  my  opinion  has no merits.\n<\/p>\n
 9. The appeal is allowed : the decree is set aside and the order for attachment is vacated. The costs of the appeal will abide by the result of this suit. Written statement to be filed within 9th of July, 1962, discovery within a week thereafter, inspection forthwith and the suit will appear in the appropriate prospective list two months hence.\n<\/p>\n
  Sinha,  J.\n<\/p>\n
 10.     I  agree.<\/p>\n","protected":false},"excerpt":{"rendered":"
Calcutta High Court Mitra Mukherjee And Co. And Anr. vs Ajit Kumar Sarkar on 18 June, 1962 Equivalent citations: AIR 1963 Cal 11, 66 CWN 1061 Author: G Mitter Bench: D Sinha, G Mitter JUDGMENT G.K. Mitter, J. 1. This is an appeal from an order directing the defendants in the suit to furnish security […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[22,8],"tags":[],"class_list":["post-70140","post","type-post","status-publish","format-standard","hentry","category-calcutta-high-court","category-high-court"],"yoast_head":"\nMitra Mukherjee And Co. 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