BINJRAJ MAHESWRIA Vs. RAMNIWASDAS JALAN

JUDGEMENT

(1.) This is a notice of motion taken out by the plaintiff in a suit in this Court seeking one of two alternative orders (1) that a suit in the Court of the District Munsif of Gorakhpur be stayed until disposal of this suit; (2) that the defendant in this suit, who is the plaintiff in the suit in the Gorakhpur Court, should be restrained by an injunction from continuing his suit until the disposal of this one.

(2.) The plaintiffs in the suit in this Court are members of a joint Hindu family represented by the karta who is plaintiff 1; the defendants are also alleged to be a joint family of which defendant 1 is the karta. The plaint states that for many years the plaintiffs carried on business in Calcutta as commission agents, and as such acted for and on behalf of the defendants, principally in the sale of various commodities such as wheat and linseed and to some extent goods such as jute and other bags were purchased by the plaintiffs for and on behalf of the defendants. The accounts were examined from time to time, the last occasion being on 30 October 1940 when it was ascertained that a sum of Rs. 14,862-2-6 was due from the defendants to the plaintiffs. The defendants, it is alleged, wrote to the plaintiffs on 18 February 1941 acknowledging the correctness of the amount due from them to the plaintiffs of which a sum of Rs. 129 has been paid. After the preliminary letter by the plaintiffs attorney before action was sent to the defendants on 18 April 1941 the present suit was filed claiming a sum of Rs. 15,350 including some interest. In the written statement filed by defendant 1 the nature of the dealings between the parties is not disputed. It is, however, pleaded that the charges made by the plaintiff are excessive and that credit has not been given for moneys paid towards the indebtedness. Further it is alleged that the defendants are entitled to the benefits of the U.P. Agriculturists Relief Act, and as such the indebtedness will be very greatly reduced upon the provisions of that statute being applied.

(3.) Five days after the suit was filed, according to the statements made in the applicant's affidavit, defendant 1 or the defendants (it matters not which) purported to alienate their immovable properties valued at about Rs. 40,000 for a sum of Rs. 16,682-8-0 the alienation being in favour of a near relative. The writ of summons in this suit was served on the defendants on 21 August 1941. On 22 October, following, defendant 1 filed a suit in the District Munsif's Court at Gorakhpore against the plaintiffs in this suit as the defendants. In the plaint it is alleged that defendant 1 in this suit is an agriculturist and is entitled to the benefits of the Agriculturists Belief Act as prevailing in the United Provinces, and the plaint goes on to allege that between the parties there were money-lending dealings over a period of a number of years, and that if proper accounts were taken between the parties and the provisions of the Agriculturists Relief Act were applied, then the defendants in this suit in this Court would be either not indebted at all, or their indebtedness would be very greatly lessened. Learned Counsel who appeared for the respondents in this motion, conceded that the subject-matter in both suits is identical although in the Gorakhpore suit it is said that the transactions between the parties were by way of loans and money-lending.