KANJI DWARKADAS Vs. HARIDAS PURSHOTTAM

JUDGEMENT

(1.) In the beginning of the year 1899 a country craft or dhow called "Ali Madut" came to Bombay from Cutch and was chartered to sail to the sea-port town of Noshi Be in the Island of Madagasker. The plaintiffs acting as commission agents for four Borah merchants put on board the said dhow or ganjo as it is sometimes called, certain goods belonging to the said merchants. One of those merchants was Alibhai Jiwanji, the owner of the Ali Madut, who had insured his goods at Cutch through the plaintiffs firm at that place. The other three desired the plaintiffs to insure their goods in Bombay and a policy of insurance was effected with the firm of Haridas Purshottam and Company. A kutcha policy was effected on the 2nd of February 1899 on which date the ship appears to have sailed from Bombay, and the formal policy was subsequently executed on the 7th of February 1899 and is Ex. F in the case. The goods belonging to the three merchants, for whom the plaintiffs firm was acting as commission agents, were insured for Rs. 3,500. It appears that "Ali Madut" met with bad weather and was carried out of its course, and, after having battled with the sea for some days, was eventually wrecked in the vicinity of a sea-port town on the Eastern coast of Africa named Minkin Dari. When the ship struck on the rock, the Nakva and the crew abandoned it with all its cargo and, in a small boat belonging to the vessel, managed to land at Minkin Dari. That sea-port town belongs to the German Government and the authorities in that town, on being informed of the wreck, employed divers and saved a portion of the cargo which with the broken vessel was sold at Minkin Dari, and after deducting all necessary charges and expenses the balance of the sale proceeds were paid over by the German authorities to the agent of the owner of the vessel. The plaintiffs say that, on being informed of the loss of the vessel and cargo, they gave notice to the defendants firm and demanded payment of the insurance moneys, and the firm of Haridas Purshottam having failed to pay the insurance moneys they filed this suit to recover the same on the 10th of January 1902. The firm of Haridas Purshottam & Co. originally consisted of three brothers, Haridas Purshottam, Jetha Purshottam and Ramdas Purshottam, who are all now dead and the defendants are their representatives.

(2.) This claim of the plaintiffs is resisted by the defendants on various technical grounds, and I will deal with each one of them as they were formulated by the learned Counsel who appeared for the defendants.

(3.) The first contention on behalf of the defendants was that the constitution of the suit was bad, and that it was filed in the name of an individual who was dead at the time the suit was filed. In the plaint, as it was originally filed, the plaintiffs are described as "Kanji Dwarkadas carrying on business at Mint Road in Bombay". No doubt, the individual of the name of Kanji Dwarkadas was dead some years before the suit was filed and even before this insurance was effected. He founded the firm which was carried on in his name, and his sons who were associated with him in the business during his lifetime continued to carry on the same firm in the same name after his death, and up to the present moment the three surviving sons and the sons of the fourth son who died soon after his father are carrying on the same business in the same name. It was obvious to my mind that the intention of the framer of the plaint was to file the suit in the name of the plaintiffs firm. This suit was filed on the 10th of January 1902. In the beginning of that year, new Rules of the Bombay High Court came into operation and one of them, Rule 361 permitted a partnership to file a suit in the name of the firm. Being satisfied that that was the intention of the plaintiffs, I made an order on the 14th of July while the suit was at hearing permitting the plaintiffs to add the words "a firm" after the words "Kanji Dwarkadas." At a later stage of the hearing on the 17th of July, the plaintiffs called Mr. Sorabji Edulji, a managing clerk in the office of the plaintiffs solicitors, who produced a draft of the plaint in the handwriting of his late father Edulji Sorabji <JGN>Davar</JGN> . That draft, Ex. J, proves conclusively that the managing clerk when he drafted the plaint, put in the names of the three surviving sons of Kanji Dwarkadas and the names of his three grand-sons, the sons of his deceased son Liladhar, as the plaintiffs. Mr. Payne, to whom the plaint was submitted for settling, struck off all the names in the plaint, retaining only the words "Kanji Dwarkadas" in the draft, and added the words "carrying on business at Mint Road in Bombay." After the evidence of Sorabji and the production of the draft plaint, I think it is not open to the defendants to contend that the suit was filed in the name of an individual who was dead. The suit was filed in the name of the firm as authorised by the Rule that had then recently come into force, and the suit as constituted, even without the addition of the words "a firm," is, in my opinion, properly constituted and is maintainable by the plaintiffs.