RAMDEO Vs. BIRDICHAND SUMERMAL

JUDGEMENT

(1.) THE suit giving rise to this appeal was instituted by Messrs Birdi Chand Sumer Mal and Gambhir Mal in the court of District Judge, Sambhar Lake, on October 20, 1949, and arose in these circumstances.

(2.) MESSRS Bridi Chand Sumer Mal was a partnership firm which carried on business of sale and purchase of gunny bags at Sambhar. Plaintiff Gambhir Mal and one Tikam Chand were proprietors of that firm. The defendants are members of a joint Hindu family firm styled as "shri Narain Ram Deo" which also dealt in gunny bags at Sambhar. Ramdeo (defendant No. 1) is the manager of that joint family firm. In Paush Samvat 2003 there were transactions between the parties for delivery of 660 bales of gunny bags, of a specified size, to the defendants on Magh Sudi 15 Samvat 2003. While the plaintiffs contended that the defendants failed to take delivery on the due date and broke the contract, putting them to a loss of Rs. 73,751/- the defendants alleged that it were they who suffered a loss of Rs. 77,851/-because the plaintiffs failed to make delivery in terms of the contract. The defendants therefore filed a suit on April 4, 1947, while the plaintiffs filed their suit on January 9, 1949, for recovery of their respective losses. Defendant Ram Deo filed an application (Ex. 50) in the trial court on October 20, 1948 under Order XXXVIII, rule 5 of the Code of Civil Procedure in his own suit, along with a covering affidavit (Ex. 51), for taking security from the defendants (present respondents-plaintiff's) or for attachment of their bales of gunny bags. The same day, a conditional attachment of the bales was ordered by the trial court and the bales were attached lying in two go-downs of the present respondents. The attachment was ultimately vacated on July 14, 1949 as cause was shown to the contrary in the objection petition (Ex. 53,) dated October 21, 1948. Thereupon the present suit was instituted on October 20, 1949 as aforesaid, alleging that the attachment before judgment was obtained "maliciously, carelessly and recklessly without sufficient and reasonable grounds against Gambhir Mal. It was also alleged that the reputation of the plaintiffs suffered considerably on account of the said attachment, which affected their credit in the business world and caused them substantial damage. The plaintiffs therefore sought to recover (1) Rs. 17,367/15/6 for depreciation in the value of the attached goods, (ii) Rs. 2,500/- on account of the expenses incurred in the litigation connected with the attachment, and (iii) 50,000/- for loss of reputation, prestige and credit, totalling to Rs. 69,867/15/6. Three schedules were attached to the plaint giving details of the property which was attached before judgment at the instance of the defendants and the damages claimed in the suit.