DEBNARAYAN DUTT Vs. CHUNILAL GHOSE

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from, a judgment of Mr. Justice Coxe, who has confirmed, the decree of the lower Appellate Court, which in its, turn confirmed that of the Court of: first instance dismissing the suit with costs.

(2.) The facts are briefly these. On the 22nd of July, 1899, defendants Nos. 1 to 4 borrowed from the plain tiff a sum of Rs. 800, and, by way of security for this, they gave a personal covenant by a, registered bond, and also purported, though ineffectually, to create a charge, by deposit of a pattah relating to immoveable property. Interest was paid on this bond up to the 13th of April 1903; and, on the 18th August, 1903, defendants Nos. 1 to 4 executed a registered instrument of transfer of all their property, moveable and immoveable, to defendant No. 5 for a sum of Rs. 2,000, becoming thereby, as the plaint describes it, "rightless."This Rs. 2,000 was not all paid, in cash, but there was a provision and declaration in the kabala that out of this consideration money of Rs. 2,000, amongst other things, the sum of Rs. 330 due to the plaintiff should, be paid by defendant No. 5. On the very same day there was an arrangement between the plaintiff and defendant No. 5 by which the" liability of defendant No. 5 under the transfer was acknowledged and accepted, and either, then or in connection there with this pattah was handed over to defendant No. 5. The plaintiff, having sought in vain payment of this money, which in common honesty is due from defendant No. 5, has noW bee compelled to bring this suit, whereby he prays against defendants Nos. 1 to 1 and defendant No. 5, but principally against defendant No. 5, a decree for payment of Rs. 613-14 annas, which represents this principal sum of Rs. 300 and the interest that accrued on it. As 1 have already indicated, he has failed in all Courts, and the only question now is whether he is to fail before us.

(3.) We are clearly of opinion that there was no novation within the meaning of Section 62 of the Contract Act--no substitution of a new contract for an old contract--and the question to be decided la whether or not the plaintiff is entitled to sue on that registered instrument of the 18th of August, 1903, whereby defendant No. 5 undertook to pay the plaintiff what was due to him from defendants Nos. 1 to 4. Looking at it broadly, there can be no doubt that an obligation was undertaken by defendant No. 5 and that it was for, and intended to be for, the benefit of the plaintiff. There are expressions in the judgments of the Courts which are suggestive of an oral contract between the plaintiff and defendant No. 5, but that, I think, was a misconception of the position. Indeed, the findings of the lower Appellate Court do not justify the view that there was a contract, but there was, as I have already indicated, an acknowledgment on the part of defendant No. 5 communicated to the plaintiff, and accepted by him of an obligation on the part of defendant No. 5 towards the plaintiff, for the debt which was to be paid by defendant No. 5 under the provisions of the registered instrument of the 18th of August, 1903. It is material in this connection to observe, first, that defendants Nos. 1 to 4 parted with the whole of their property, moveable and immoveable, to defendant No. 5; secondly, that on the same date there was this arrangement between the plaintiff and defendant No. 5 which, clearly points to a communication to the plaintiff of the transaction; and, finally, that as a result of this the pattah which was regarded by the parties at that time, erroneously perhaps, as constituting a charge on the property, was handed back by the plaintiff to defendant No. 5. It appears to me that one may fairly say that this sum of Rs. 330 mentioned in the registered instrument of August was allocated and held by defendant No. 5 for the benefit of the plaintiff, so that in a sense the money was reified and earmarked for this purpose. We have here then a position in which it would be, in accordance with the principles of justice, equity and good conscience, the abiding rule in these Courts, that the plaintiff should be entitled to enforce this claim against defendant No. 5. If we were governed by Twaddle v. Atkinson (1861) 1 B. &S. 393; 181 E.R. 762; 124 R.R. 610. there might possibly be a difficulty in our way, but it has to be borne in mind that Twaddle v. Atkinson (1861) 1 B. &S. 393; 181 E.R. 762; 124 R.R. 610. was a decision on a form of action peculiar to the Common Law Courts in England and that the case was influenced by the rule that no action in assumpsit could be maintained upon a promise unless consideration moved from the party to whom it was made. Here we have a definition of consideration which is wider than the requirement of the English law: [Section 2(d) of the Contract Act]. And it has been laid down by Sir Barnes Peacock in a Full Bench decision of this Court in relation to Courts in the mofussil [Rumbux Chittangeo s Case (1867) B.L.R. Sup. Vol. 675. 7 W.B. 377] that in those Courts the rights of parties are to be determined according to the general principles of equity and justice without any distinction, as in England, between that partial justice which is administered in the Courts of Law and the more full and complete justice for which it isfrequently necessary to seek the assistance of a Court of Equity. The rules and the fictions which have been in many cases adopted by the Common Law Courts" in England for the purpose of obtaining jurisdiction in cases which would otherwise have been cognizable only by the Courts of Equity, are not necessary to be followed in this country where the aim is to do complete justice in one suit. More than that we now have ample authority for saying that the administration of justice in these Courts is not to be in any way hampered by the doctrine laid down in Tweddle v. Atkinson (1910) I.L.R. 32 All. 410 L.R. 37 I.A. 152. That take to be" the result of the decision of the Privy Council in the recent case Khwaja Muhammad Khan v. Husaini Begam (1910) I.L.R. 32 All. 410 L.R. 37 I.A. 152. In the report of that case, in 14 Calcutta Weekly Notes (1910) 14 C.W.N. 868, there is an interlocutory remark of Lord Macnaghten which indicates the limits imposed on a Court of Common Law. He there says, "Supposing she (that is the plaintiff were an English woman, it is true she could not bring an action in the King s Bench Division, but could she not bring a suit in Equity?" The answer of the learned Counsel was "yes." It is possible that this distinction can be explained by the history of the action of assumpsit which was a development of the writ of trespass. In the old writ in indebitatus assumpsit it was alleged that the defendant "not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtilly to deceive and defraud," had not paid and so forth. The breach of contract was charged as deceit and it was only the person deceived who could sue. The bar then in the way of an action by the person not a direct party to the contract, was probably one of procedure and not of substance. In India we are free from these trammels and are guided in matters of procedure by the rule of justice, equity and good conscience. The case with which we are now dealing finds a close parallel in Gregory & Parkar v. Williams (1817) 3 Mer. 582; 36 E.R. 224 and also in the more recent cases of Touche v. Metropolitan Railway Ware housing Company (1871) L.R. 6 Ch. App. 671, 677 and Gandy v. Gandy (1885) 30 Ch. D. 55. There is a valuable exposition of the law by Lord Hatherley in the first of these last two cases which was adopted by Lord Justice Cotton in the second. The Lord Chancellor said, "The case comes within the authority that where a sum is payable by A.B. for the benefit of C.D., C.D. can claim under the con tract as if it had been made with himself." That appears to me to be a principle which is of distinct use in the consideration of this case. It appears to me that we have therefore, in the circumstances of this case, a condition of affairs in which it would be right to hold that the plaintiff is entitled, to enforce his claim in this suit. The claim is one under the registered instrument of the 18th of August 1903: and it is unnecessary to consider whether the plaintiff is entitled to rely on the deposition as an acknowledgment for the purpose of taking this case out of the operation of the statute of Limitation, for admittedly if this is a suit on the registered instrument of transfer, it is within time.