SRI VASUDEVANDRA SARASWATHISWAMI Vs. SRIDHARA SIVARAMA MOORTHY

JUDGEMENT

(1.) IN this suit the plaintiff claims a sum of Rs. 9000 which he says the defendant must repay him in the following circumstances. In January 1945, according to the plaintiff he came to Madras from Bezwada, which is his permanent residence in order to take part in a scheme in insolvency whereby he was to be the guarantor. He says that he came to Madras with the sum of Rs. 9000 but found, on arrival that the scheme was not going to materialise. Happening to meet his son -in -law, the defendant, he decided to send the money back to his son who lived in Tenali, the defendant representing to him that he was proceeding in a few days to Tenali on his own business. According to the plaint, the money was therefore handed to the defendant for the purpose of delivering it to the son in Tenali. The plaint says that the defendant failed to pay the money over and has retained it ever since. Hence this suit.

(2.) THE defence denies the whole of the plaintiff's story except and in so far as the defendant admits receiving the Rs. 9000 although on a slightly different date; and he says that the money was paid to him on account of a larger sum of money due by the plaintiff to him as the result of a quasi agency which the plaintiff had performed on the defendant's behalf between the years 1929 and 1931. According to the defence, the plaintiff, who as indicated was the defendant's father -in -law, managed the defendant's affairs or some of them, and according to the defendant, has never to this day properly accounted for the same. The defence says that the plaintiff on a taking of accounts would be found to be liable to pay at least Rs. 12,000 -0 -0, if not, more thousand rupees. The defence therefore argues that accounts should be taken and/ or that the plaintiff should pay the defendant a sum of Rs. 3592 -8 -0, the balance, which he says is due to him.

(3.) IN the interlocutory proceedings which came, I understand, before the late Kuppusawmy Aiyar J. it was agreed between the parties that the question of jurisdiction to try this counter claim which was raised by the plaintiff in his reply to the written statement should be tried as a preliminary issue before the counter claim is taken up for trial or before any evidence is let in on the counter claim. This agreement was apparently made an order by the learned Judge. On that footing the case has been got ready for trial and this is the preliminary point with which I have now to deal. It has been laid down in many cases that a counter claim may be set up only in respect of claims as to which the party could bring an independent action in the Court in which the counter claim is brought. (See Halsbury's Laws of England, Second Edition, Volume 29, p. 503.) A. list of authorities is cited in support of that proposition going back to 1879. Furthermore, in Williams Brothers v. Agius Ltd., 1914 A.C. 510 Lord Danedin states the proposition in this way at p. 522: