DAMJI HIRJI Vs. MAHOMEDALLI ESSABHOY

JUDGEMENT

(1.) PLAINTIFF, who as an endorsee of eight hundis drawn by the defendants on different parties is their holder, has filed this suit to recover the amount of the hundis from the defendants. In the written statement several defences were suggested. At the hearing Mr. Mistree for the defendants has given up all except that of jurisdiction.

(2.) IN para. 5 of the plaint it is alleged that the hundis were passed in, Bombay, the moneys due thereunder are payable in Bombay, and the whole cause of action has arisen in Bombay. No leave under Clause 12 of the Letters Patent has been obtained from the Court.

(3.) IN support of their contention that the defendants do not carry on business in Bombay they rely on the decision in Framji Kavasji Marker v. Hormasji Kavasji Marker (1865) 1 B.H.C.R. 220, 224. IN that case the defendant, who was residing at Peshawar, carried on business as a general merchant at Sialkot, Nowshera, Gwalior, Delhi, and other places. He had a retail shop at each of those places where he sold European goods. He had kept a man in Bombay who made some local purchases and received goods imported from Europe and forwarded them to the defendant at his different shops. The evidence in that case established that no sales whatsoever took place in Bombay. The Court under the circumstances came to the conclusion that a sale was an essential part of the defendant's business, because it was on a sale that he earned a profit. It was, therefore, held that the existence of an agent in Bombay with the limited power mentioned above did not make the defendant one who carried on business in Bombay. IN my opinion the facts of the present case go much beyond that. For the defendants' business in this case they want finance, they want articles and parts of machinery. It is admitted that some goods (e.g. hessian, cloth, iron hoops, etc.) and parts of machinery were purchased by the clerk in Bombay under the defendants' instructions. The loans taken were for the business of the defendants and without that it would not be possible to carry on that business at all. Borrowing was thus an essential element in the defendants' business. The existence of an office room rented in their own name, employment of a clerk to keep regular books of account in respect of the borrowings of the firm in addition to the purchases made by the defendants through their man here, establish facts which make the defendant firm one which carries on business within the jurisdiction of this Court. The contention of the defendants on this point must therefore fail.