KANHAIYALAL HARKARANDAS Vs. MOHANLAL RAMVALLABH

JUDGEMENT

(1.) THIS is a notice of motion taken out by the plaintiff on November 13, 1940, for an order that the defendant may be restrained from proceeding with a complaint filed by him in the First Class Magistrate's Court at Benares. That complaint was filed on February 14, 1940.

(2.) BY a letter dated January 19, 1940, the defendant's advocate alleged that the plaintiff had been entrusted with ornaments by the defendant worth over Rs. 7,600, a list of which was appended to the letter, on the plaintiff's assurance that they would be returned to the defendant whenever required, that the plaintiff had written several letters to the defendant assuring him that he would return the same, that in spite of repeatd demands he had not done so, and had dishonestly misappropriated the ornaments. The letter demanded the return of the ornaments within a week of the receipt of the notice, and stated that in default the defendant would be constrained to take steps for the prosecution of the plaintiff under Section 406 of the Indian Penal Code. That letter was not in fact received by the plaintiff until January 29, 1940. Without replying to that letter the plaintiff on January 31, 1940, filed this suit. In the plaint he alleges that on or about February 10, 1939, he lent Rs. 2,000 to the defendant who promised to pay that amount in Bombay with interest at six per cent. after a month or two, that payment had been demanded and the defendant had refused to pay and by his advocate's letter of January 19, 1940, to which I have referred, and which is exhibit (A) to the plaint, put forward a false claim against the plaintiff. The plaint goes on to allege that the plaintiff had at no time any ornaments of the defendant's wife, and submits that the plaintiff is entitled to a declaration that he is not in possession of any ornaments of the defendant's wife, and that the defendant had no moneys in deposit with the plaintiff, that fact having been alleged both in the letter of January 19, 1940, and in the plaint.

(3.) THE criminal complaint was filed by the defendant in the Court of the City Magistrate, Benares, on February 14, 1940. A copy thereof is set out in exhibit B to the plaintiff's affidavit of November 12, 1940. It is a complaint made not only against the plaintiff but also against a second accused, who is alleged to be the munim of the plaintiff. That complaint alleges dishonest misappropriation and conversion of ornaments entrusted by the complainant to the munim on the plaintiff's behalf.