A. MOHAMMAD SHERIFF AND COMPANY, LIMITED, BY ITS MANAGING DIRECTOR A. MOHAMMAD SHERIEF AND ORS. Vs. A.P.N. ABDUL JABBAR AND ORS.

JUDGEMENT

(1.) These are connected appeals, one by the Plaintiff and the other by the Defendant, arising out of the same decree in a suit for recovery of Rs. 50,462 -87 nP. equivalent of 32,452 dollars. The Plaintiff claimed this amount on account of the price of the sales of goods to the Defendant from his firms at Singapore between December 9, 1952 to February 13, 1953 and at Kuala Lumpur between August 6, 1952 and June 8, 1953. The Plaintiff was carrying on business in both the places under the name and style of A. Mohammad Sheriff and Company, Limited. and so too the Defendant in both carried on business under the name and style of Abdul Jabbar and Company. The Plaintiff instituted Suit No. 1532 of 1953 against the Defendant in the High Court at Singapore to recover the amount due to him. Though the summons was served on the agents of the Defendant, the suit was not contested and was decreed ex parte on September 24, 1953 for 40,125 dollars and 54 cents including costs. The Plaintiff had since received 7,673 dollars and 53 cents and the present suit was to recover the balance without claiming any interest in accordance with the personal law of the parties. The suit having actually been instituted on December 7, 1957, the Plaintiff maintained that it was within time, as, according to him, it was filed within six years of the date of the decree of the Singapore High Court and the son of the Defendant had also acknowledged the debt in September and October 1954.

(2.) The suit was resisted by the Defendant on various grounds. He contended that as he had suffered loss and damage during the Japanese war, he had to return to India on September 10, 1952 after closing down his business, and that his agents had authority only to wind up and close the business, and sell the remaining stock but no authority to purchase any fresh stock. He had no notice of the suit transactions, even of the suit or of the decree in the Singapore High Court and this decree is also bad in law. Further on October 29, 1953, at the instance of the Plaintiff and two other creditors, a composition arrangement was entered into under which they acted as trustees and guarantors and sold the Defendant's properties through an auctioneer realizing considerable sums of money and that under this arrangement they had each agreed to accept 35 per cent of their debts in full satisfaction. If what had been realized by the Plaintiff and appropriated by him in that way is taken into account, the entire debt under the composition arrangement due to the Plaintiff would stand, wiped out and satisfied. The suit is, therefore, not maintainable. It was not clear to the Defendant whether the suit was based on the judgment of the Singapore High Court or on the original transactions. If it was on the foreign judgment, he would plead that it was not one on merits and could not form the basis of the suit claim under Sec. 13 of the Code of Civil Procedure. In any case, the suit claim, asserted the Defendant, is barred by limitation since the last supply of goods from either of the places was more than three years prior to the date of the plaint and there was no acknowledgment valid or otherwise by him. The Defendant also denied that he was an agriculturist and stated that he had been assessed to income -tax during the relevant years.

(3.) On these pleadings, the trial Court framed a number of issues and came to the conclusion that the suit dealings were true, valid and binding on the Defendant that the composition arrangement put forward by the Defendant did not fructify, that the suit should be treated as one essentially on the original cause of action and that the foreign judgment was not one on merits. On the question of limitation, it found that the acknowledgment of the debt pleaded by the Plaintiff was not made out and that the suit claim, except in respect of four items of the transactions at Kuala Lumpur between May 26, 1953, and June 8, 1953, was barred by limitation. On that view, it granted a decree for Rs. 7,412 -67 nP. and dismissed the suit in respect, of the balance of the claim. In the circumstances, both the Plaintiff and the Defendant have appealed to this Court to the extent the decree is against the one or the other.