JOHARMULL CHIMANLAL AND CO Vs. ISWARDAS AGARWALLA

JUDGEMENT

(1.) In this case it appears that the respondent, Iswardas Agarwalla was the defendant in a suit and that the present appellants obtained against him an injunction of which the terms are somewhat important. The order was made on 6 February 1930 and the injunction which was to take effect upon service of the order on the defendant restrained him, his servants and agents from dealing with, disposing of or alienating any of the moveable or immovable properties belonging to him and mentioned in the said petition except in the usual course of business so far as the said moveable properties were concerned. The injunction is a form of injunction that is sometimes made under the provisions of Order 38, Civil P. C., and the question which is before us now is this: The defendant having been served very shortly after the date of the order, namely, 6 February, appeared and the injunction was dissolved on 5th March so that he suffered the disabilities of the injunction for a period of something like a month. After various proceedings to which I need not refer in detail, it was arranged by a judgment of this Court that the defendant should be at liberty to apply by motion for an inquiry as to the damages caused to him by reason of the operation of this injunction. It was also directed that the defendant should state his case for damages and his claim and that the matter should be heard on the original side. The matter came before my learned brother Costello, J., who has delivered a careful judgment and has directed an inquiry as to the damages. That certainly is a matter on which this Court would be most loath to interfere with the discretion of the learned Judge.

(2.) In this appeal however Mr. Banerji for the appellants points out that while a long list of claims some of them quite clearly highly coloured and exaggerated claims is made in the petition of the defendant, not a single one of these claims can reasonably be supposed to be a claim that can be entertained as arising out of or caused by the injunction. It will be observed that what the injunction restrained the defendant from doing for the period of a month was, first of all alienating or disposing of his immovable properties or those of them mentioned in the schedule to the petition. It also prevented him from alienating or disposing of his movoable properties therein mentioned except in the usual course of business. If therefore it could be shown in some way that the defendant had. lost the chance of a good sale of a house or if it could be shown that apart from the usual course of his business he lost a chance of dealing with others and getting some money for his moveables no doubt that would found quite a sensible and reasonable claim worthy of being considered as the basis of the damages to be awarded to him. In that case the injunction would have prevented him from doing something which otherwise he would have been able to do. But in the present case, no suggestion is made that he had any intention or opportunity of dealing with his immovable properties one way or the other; nor is there anywhere a suggestion that he lost an opportunity of dealing in some way with his moveable properties otherwise than in the usual course of business. What he has said is that this kind of injunction is a reflection upon his character and upon his business stability and that the moment this injunction was pronounced and as a consequence of it nobody entered into any dealings with him, that his friends on the contrary began to break their contracts and failed to do their duty. It is suggested for example that he had an agreement with certain people to open a shellac factory and that this injunction so damaged him in the eyes of these people that they refused to start the said factory with him. He says that the firm of J. Thomas & Co. to whom he used to consign shellac instead of doing their duty and carrying on their business in the ordinary way proceeded to put the shellac on the market at once so that he lost enormous profits. He says that the people who used to advance him; money did no longer advance him money as before; and he talks of costs, charges and expenses he has been put to in order to come down to Calcutta to contest the injunction.

(3.) The learned Judge has apparently been persuaded that this is the kind of thing that the Court will inquire into upon a motion of the present character and he has directed an inquiry to be held. In my opinion a claim of the character made here is entirely novel and unfounded. I have never heard of a case where the Court of Chancery on materials of this sort has ordered an inquiry. It will not do to say that the fact that an injunction is made against a person damages his character and his business merely because it is an injunction at all or a kind of injunction that is granted under Order 38 and for the purpose presumably of making sure that the plaintiff in the suit would get the fruits of the judgment if he is successful. While the discretion of the Court both in giving damages and in ordering an inquiry is a wide discretion it is controlled by the ordinary principles applicable to the award of damages (Smith V/s. Day, 21 C. D. 42l) and the defendant here has no case whatever for an inquiry. In order to get an inquiry as to damages, he would have to show that he had suffered loss by his inability to do one or more of the things which the injunction restrained him from doing and, until some sensible case of that sort is put forward, it is unnecessary, with all respect to the learned Judge, to direct an inquiry on materials; of the character before us.