Arun and Co. vs Madhavsingh Dwarkadas

Mitter, J.—In this appeal a preliminary point of limitation has been taken before dealing with the main appeal into the merits of which we have not yet gone into. I think it necessary to dispose of this point which has been canvassed before us at some length.

There was no material in the paper-book to show that the appeal was filed out of time. The memorandum of appeal filed in this case by Messrs. G. Bagaria & Co. which was presented on November 23, 1963, was duly accepted by the department and the dates noted at the back of the memorandum are as follows:

Requisition for drawing up by Messrs. G. Bagaria & Co. 2.5.63

Do. for office copy of the decree ... ... 26.4.63

Sent for approval ... ... ... 29.7.63

Settled ... ... ... 21.8.63

Signed ... ... ... 6.9.63

Ready for filing ... ... ... 16.9.63

Filed ... ... ... 18.9.63

Folios marked ... ... ... 4.10.63

Stamp furnished ... ... ... 4.10.63

Ready for delivery ... ... ... 21.11.63

Memo. presented ... ... ... 23.11.63

From these dates there is nothing to show that the Appellant was in default at any stage before the memorandum of appeal was actually presented. When the matter was first taken up a few days back, Mr. Ghosh, learned Counsel for the Respondent, said that he would be in a position to show that the Appellant had not complied with the Rules of this Court in the matter of getting the decree drawn up and, as such, we should come to the conclusion that the appeal was out of time. We allowed his client an opportunity to put the matter on affidavits and this has been done. An affidavit-in-opposition has been affirmed on behalf of the Appellant and an affidavit in-reply on behalf of the Respondent. Liberty was given even after the completion of these affidavits to file further affidavits to show when the certificate of funds which looms large in this application was actually drawn up.

The suit was instituted by Madhavsingh Dwarkadas against Arun & Co. in December, 1957, for breach of a contract to supply and deliver a quantity of milk powder of Australian origin. According to the plaint the Defendant wrongfully failed and neglected to deliver the goods and by reason thereof the Plaintiff suffered damages which he assessed at Rs. 5,250. The Plaintiff claimed not only this sum but a further sum of Rs. 3,000 which had been paid to the Defendant as and by way of deposit or advance against the price of the goods. The Defendant filed its written statement in November, 1958. The payment of the sum of Rs. 3,000 was admitted, but it was stated that the contract had been duly cancelled and a cheque for Rs. 3,000 had been returned to the Plaintiff, that the Plaintiff had accepted the cheque but had not wrongfully cashed the same with an ulterior motive. Sometime after the written statement had been filed, the Attorney for the Defendant wrote a letter to the Registrar asking him to receive a sum of Rs. 3,000 under Rule 43(1) of chap. XXIV of the Rules of the Original Side of this Court in satisfaction in full of the Plaintiff''s claim with a denial of liability by the Defendant in respect of the balance of the claim.

The suit was heard, certain witnesses examined and judgment was delivered on April 25, 1963. The closing sentences of the judgment read as follows:

There will be a decree for Rs. 5,250 as damages and a further sum of Rs. 3,000 which was deposited with the Defendant as advance. The Plaintiff is entitled to interest on judgment at 6 per cent and costs. The Plaintiff is at liberty to withdraw the said amount of Rs. 3,000.

The relevant portion of the decree runs as follows:

It is ordered and decreed that the Defendant firm do pay to the Plaintiff the sum of Rupees five thousand two hundred and fifty as damages and a further sum of Rupees three thousand which was deposited with the Defendant firm as advance making together the sum of Rupees eight thousand two hundred and fifty with interest on the said sum of Rupees eight thousand two hundred and fifty at the rate of six per cent per annum from the date hereof until realisation and do also pay to the Plaintiff his costs of this suit (to be taxed by the Taxing Officer of this Court as of a Defendant suit). And it appears from the Certificate of this Registrar of this Court that there is now in his hands the sum of Rupees three thousand deposited by the Defendant firm through its Attorneys Messrs. G. Bagaria & Co., under Rule 34(1) Chapter XXIV of the Rules of this Court, it is further ordered and decreed that Plaintiff be at liberty to withdraw from the said Registrar the said sum of Rupees three thousand and that the said Registrar do pay to the Plaintiff the said sum of Rupees three thousand and that upon such payment being made the Plaintiff do cause satisfaction of this decree to the extent thereof to be entered up in the register of this Court.

As already noted, even before the Plaintiff furnished a requisition for drawing up of the decree and the completion thereof, the Defendant put in a requisition for a certified copy of the decree on the very next day after the judgment and within seven days thereafter applied for drawing up and completion of the decree. The certificate of funds, which is an annexure to the affidavit of Madhavsingh Dwarkadas, affirmed on June 8, 1966, shows that it was given at the request of Messrs. Leslie & Khettry, Attorneys for the Plaintiff, certifying that there was in the hands of the Registrar of this Court a sum of Rs. 3,000 received on December 5, 1958, from the Defendant company through its Attorneys as deposit under Rule 43(1) of chap. XXIV of the Rules of this Court and that there was no attachment affecting the same. The Appellant does not claim that it ever called upon the Registrar to furnish a certificate of funds; but the Attorneys for the Plaintiff asked for such a certificate on July 10, 1963. On July 11, 1963, Messrs. Leslie & Khettry wrote to the Registrar of this Court to the effect that they had been informed by the Registrar''s department that Messrs. G. Bagaria & Co. had put in a requisition for the drawing up of the decree and that for over one month the writers had been repeatedly informed by the department that as Messrs. G. Bagaria & Co. had not complied, inspite of the request made by them to furnish the certificate, they were unable to draw up the decree. The Registrar was requested to issue the certificate expeditiously so that the decree could be drawn up and completed without delay as requisition for furnishing the certificate of funds had already been put in. A copy of this letter was sent to Messrs. G. Bagaria & Co. for their perusal and information and it appears that Messrs. G. Bagaria & Co. never cared to send any reply thereto or contradict any of the statements contained in the letter to the Registrar.

Mr. Ghose drew our attention to certain Rules in chap. XXIV of the Rules of the Original Side of this Court and contended on the strength thereof that a decree could not be drawn up in a case like this unless a certificate of funds was taken out in terms of the said chapter and as the Defendant wanted to come up in appeal it was incumbent on it to apply for the certificate and furnish the same with due diligence so that the decree could be drawn up and a certified copy thereof be furnished for presenting the memorandum of appeal.

Chapter XXIV of the Rules is headed ''Money Rules''. Rule 1 thereof provides as follows:

No decree or order for delivery out o� Government or other securities or for payment out of cash in the hands of the Accountant-General of the High Court, the Registrar or the Sheriff, shall be made except upon the certificate of the officer in whose hands such Government or other securities or cash may be, certifying the amount and particulars of the estate in his hands and, where the securities or cash have been realized in execution, upon the certificate of the Sheriff that no poundage is due to him.

Rule 2 provides that the certificate in the last preceding Rule mentioned may be obtained on a letter signed by the party interested in such notes or cash or by his Attorney, addressed to such officer, requesting such certificate and distinctly stating the interests of the party, and the object for which such certificate is required. The marginal note to Rule 1 is

Application for payment of money, etc., by Accountant-General and other officers.

The chapter which deals with judgments, decrees and orders of this Court is chap. XVI. Rule 11 of chap. XVI provides that a decree shall contain the number of the suits, the names and description of the parties, and particulars of the claim as stated in the concise statement, and shall state what parties appeared and how and whether any evidence was taken, and shall specify clearly the relief granted or other determination of the suit; but no issues or the findings thereon shall be inserted unless by special directions of the Judge, nor shall there be any recitals other than such short ones as the Registrar or Master thinks necessary. Money and securities for money shall be expressed at length. Rule 13 of chap. XVI provides that unless the Court or a Judge shall otherwise direct, every decree or order for payment of money or delivery of securities out of Court shall direct such money to be paid or securities to be endorsed and delivered over by the Financial Secretary to the Government of West Bengal, and the Secretary and Treasurer for the time being of the State Bank of India (or such other officer or officers as shall, for the time being, have the custody of the funds of suitors) with the privity of the Accountant-General of the Court. Under Rule 43, Sub-rule (1) of chap. XXIV the Defendant may, in any suit to recover a debt or damages, at any stage of the suit, after entering appearance, deposit with the Registrar such a sum of money as he considers satisfaction in full of the claim, or (where several causes of action are joined in one suit) such sum or sums of money as he considers to be satisfaction in full of one or more of the causes of action. Such deposit shall be made upon requisition in writing in Form No. 1 to the Registrar specifying whether the payment is in satisfaction in full of the claim or in satisfaction of one or more of the causes of action and, in the latter case, the particular cause or causes of action and the sum paid in respect of each cause of action, and stating whether liability is admitted or denied. Sub-rule (2) of Rule 43 provides for the fixing of notice of such deposit to be issued by the Registrar in Form No. 2. Rule 44 provides that where money is deposited by the Defendant as aforesaid with admission of liability, the Plaintiff may within seven days of the receipt of the notice of deposit or, where more than one deposit has been made, within seven days of the receipt of the notice of the last deposit, accept the whole sum or any one or more of the specified sums in satisfaction in full or part of the claim or in satisfaction in full or part of the cause or causes of action to which the specified sum or sums relate, by giving notice to the Defendant in Form No. 3, and the Plaintiff may apply within twenty-one days from the date of the service of such notice (Form No. 3) for payment of such accepted sum or sums to him upon requisition in writing to the Registrar in Form No. 4 and with the consent of the Defendant or his Attorney, if any, endorsed thereon, or by filing an affidavit of service of the said notice (From No. 3), together with a certificate of the Registrar certifying the amount or amounts of the deposit in his hands and that no attachment affecting the same or any order restraining payment thereof or notice of any claim by any person to the amount or amounts has been served on him, and thereupon the Registrar, after satisfying himself that the Plaintiff is entitled to such payment and to his indentity and upon a proper receipt being given to him by the Plaintiff, shall pay the amount or amounts to the Plaintiff. Under Rule 45 where money is deposited by the Defendant as aforesaid with denial of liability, the Plaintiff may, within seven days of the receipt of the notice of the deposit, or where more than one deposit has been made within seven days of the receipt of the notice of the last deposit, accept the sum or any one or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the specified sum or sums relate, by giving notice to the Defendant in Form No. 3, notwithstanding the Defendant''s denial of liability, where upon all further proceedings in respect of such claim or cause or causes of action, except as to costs, shall be stayed. Under Rule 46 save as aforesaid payment of the amount or amounts deposited under the above Rule 43(1) shall not be made to any party except upon an order of the Court or a Judge. The form to which reference is made in this chapter is contained in Appendix H-1 and that is the form which was used in this case.

Mr. Ghose frankly conceded that if it was not the duty of the Appellant to apply for a certificate of funds in order to have the decree drawn up, he cannot contend that the appeal is out of time But, according to him, chap. XXIV, Rule 1 gives a clear indication that a decree for payment of cash in the hands of the Registrar cannot be made unless a certificate from him is first obtained and in this case the Appellant has not been able to show that he took any steps for obtaining such a certificate from the date of the decree to July 11, 1963. When a certificate was obtained at the instance of the Plaintiff-Respondent, the Appellant was in default and could not get the benefit of Section 12 of the Limitation Act. Mr. Ghose drew our attention to a large number of decisions including two of the Judicial Committee of the Privy Council which, in my opinion, would certainly help Mr. Ghose if it was the duty of the Appellant in a case like this to obtain a certificate of funds before a decree could be drawn up. The first case is that of Pramatha Nath Roy v. Lee 49 I.A. 307. Thereafter an order had been made on July 26, 1918, no steps were immediately taken by the Plaintiff to have the order drawn up, which being a case under Original Side requisition had to be given within 4 days after the date of the order. The four days elapsed and nothing was done. On August 6 an application was made by the Plaintiff to have the order drawn up and on August 7 a draft of the order was sent to the Appellant. According to Lord Buckmaster who delivered the judgment the order was simplicity itself, but the Appellant only returned the draft on August 16. It was signed on August 28 and was filed by the Plaintiff on September 3. In ascertaining what was the requisite time referred to in Section 12, Sub-section (2) of the Limitation Act the learned Judges of this Court had taken into consideration the conduct of the Appellant and their judgment was upheld by the Judicial Committee. According to the judgment of Lord Buckmaster:

In their lordships'' opinion, no period can be regarded as requisite under the Act, which need not have elapsed if the Appellant had taken reasonable and proper steps to obtain a copy of the decree or order. In the present case he took none, and the periods between July 30 and August 6, and again between August 7 and August 16, which were within the Appellant''s control, are sufficiently great to prevent the Appellant saying that the time that did elapse must have elapsed even if he had acted with reasonable promptitude.

In the result the appeal was dismissed. This judgment was referred to in J.N. Surty v. T.S. Chettyar 5 I.A. 161 and there in the judgment delivered by Lord Blanesburgh it was said that the word ''requisite'' in Section 12 meant something more than the word ''required''. According to the Board:

It means ''properly required'' and it throws upon the pleader or counsel for the Appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. But for that time which is taken up by his opponent in drawing up the decree, or by the officials of the Court in preparing and issuing the two documents, he is not responsible.

Mr. Ghose cited a number of decisions of this Court in aid of his contention. I do not think any useful purpose will be served by referring to all of them. But I should like to refer to at least one of them. In Sambhu Nath Bandopadhya v. Gopal Seal ILR 56 Cal. 709 the facts were as follows: The decree was drawn up on May 16, 1928, in favour of the Plaintiff. On the next day the Plaintiff filed a requisition for drawing up the decree so that the Appellant-Defendant never became entitled or obliged to exercise the right of putting in another requisition for drawing up the decree. This right accrued to him only if the Plaintiff had for four days omitted to file the requisition for drawing up the decree. The requisition for drawing up the decree having been filed on May 17, the drawing up of the decree proceeded in the ordinary course with this exception that although the draft decree was issued on May 22, 1928, the Appellant did not return it approved until June 5, 1928. On June 5, the Defendant for the first time filed a requisition for obtaining an office copy of the decree. The time prior to that was occupied in getting the decree drawn up. At the same time it was perfectly plain that until there was a decree there could not be a copy of it and from May 17 until June 5 the time might very well be counted in the Defendant''s favour had he only filed his requisition sooner. As a matter of fact the memorandum of appeal was filed on the very day the office copy of the decree was ready for delivery. The only way, therefore, in which the Defendant could be out of time would be in respect of the period between June 19 when the decree was sent to be lodged, and July 9 when the decree was filed by the Plaintiff. According to his Lordship, the Plaintiff certainly did take unnecessary time, but the question was whether that could be charged against the Defendant and whether he was not entitled to say that, as the requisition for drawing up the decree was filed by the Plaintiff, the Defendant was not called upon to interfere in the process of the drawing up of the decree. On the facts, it was held that there was no negligence on the part of the Defendant and that he was making enquiries at the office regularly and, in the result, it was held that the Defendant was not out of time and that if he was out of time it was not on account of his negligence and the time should be extended if necessary. Reference was also made to other judgments of this Court, namely, Secretary of State v. Parijat ILR 59 Cal. 1215, Brijlal Ganeriwalla v. Girindra Sekhar Bose ILR (1933) 61 Cal. 306, Kamruddin Hyder v. M.N. Mitter ILR (1924) 52 Cal. 342, Sarat Chandra v. Upendra Nath ILR (1927) 54 Cal. 481. I do not think any useful purpose will be served by examining all these cases in detail. The whole question before us is whether there was a decree made by this Court which would attract the operation of chap. XXIV, Rule 1 of the Rules of this Court. In my opinion, the decree was not one of that type. Rule 1 provides that no decree shall be made for delivery out of Government or other securities or for payment out of cash in the hands of the Accountant-General of the High Court etc. except upon the certificate of the officer in whose hands such Government or other securities or cash may be. Here the learned trial Judge passed a decree in favour of the Plaintiff for Rs. 5,250 as damages and a further sum of Rs. 3 000 deposited with the Defendant by way of advance giving the Plaintiff liberty to withdraw the amount of Rs. 3,000. In the judgment there is no mention of the fact that there was any decree passed for payment out of the moneys in the hands of the Registrar. His Lordship merely gave the Plaintiff an opportunity to withdraw money if he was so advised. That does not mean that a decree was made in terms of Rule 1 of chap. XXIV.

This is sufficient to dispose of the question as to whether a certificate was necessary. But, in my opinion, even if a certificate was necessary, it was not the duty of the Appellant to get the certificate on the facts of this case. Under Rule 43 of chap. XXIV it is open to the Defendant in a suit to recover a debt or damage at any stage of the suit to deposit a sum of money as he considers to be satisfaction in full of one or more of the causes of action. Under Rule 45 where money is deposited with denial of liability, the Plaintiff may accept the said sum in satisfaction of his claim. Except as aforesaid under Rule 46 payment of amount deposited under Rule 43(1) cannot be made to any party unless an order of the Court or Judge is made to that effect. The combined operation of these three Rules, in my view, is that it is open to the Plaintiff to withdraw the money if he is so advised and if and when he makes an application for withdrawal he has to file a certificate before any order for payment can be made. When the Defendant wants to prefer an appeal from a judgment passed against him, it is not incumbent on him to get a certificate under Rule 2 of chap. XXIV. On the facts of this case I see no reason why it was necessary to include in the decree any mention of the certificate of funds lying with the Registrar of this Court. If that was not necessary the Appellant was not obliged to get a certificate. To be in accordance with the judgment the decree need not have incorporated any fact relating to the deposit or the existence of the funds in the hands of the Registrar.

It was next contended that it has been the invariable practice of this Court in cases like this to insert in the decree the existence of the funds in the hands of the Registrar or other officer of the Court and to state expressly that a certificate to the effect has been obtained by the Appellant. The only person who speaks about this practice is Madhavsingh Dwarkadas, a lay litigant who is not supposed to know anything about the practice of this Court. It is curious that the Attorney Sreenath Khettry who affirms an affidavit herein makes no reference to such practice. As I have already taken the view that it was not necessary to make a mention of the certificate in the decree, it follows that any practice to that effect cannot bind this Court and, in my opinion, there ought to be no mention of any such fact in the decree itself. For all these reasons I think that there is no ground for holding that the Appellant was in default in getting the decree drawn up and any time taken by the department because of the non-furnishing of the certificate of funds should not be laid at the door of the Appellant as showing his default.

In the result, we hold that the appeal is not out of time. We shall deal with the question of costs of this hearing after the appeal is disposed of on merits.

Masud, J.

I agree.