NEERENDRABHOOSHAN LAHIRI Vs. BERHAMPUR OIL MILLS, LTD

JUDGEMENT

(1.) This is an appeal by defendants 2 and 3 from a decision of the Fourth Additional Subordinate Judge of 24-Parganas, by which the plaintiffs suit was decreed against them on contest and ex parte against defendants 1 and 4. The suit was for recovery of money due as balance of the price of two waggon loads of mustard oil alleged to have been supplied by the plaintiffs, a joint stock company with limited liability, from their place of business at Berhampur (District Murshidabad) to a firm styled S.B. Lahiri and Company carrying on business at Maniktala (District 24-Parganas), of which latter firm the four defendants were said to bathe proprietors. The two grounds, on which the decree of the Court below is assailed, are firstly that the suit was instituted beyond time; and, secondly, that defendant 2 is not a partner of the firm, but that the firm belongs to defendant 3 alone. So far as the first ground is concerned, the relevant facts are the following: The two consignments were delivered respectively on 20 December 1920, and 24 December 1920. The suit was instituted in the Court of the Subordinate Judge at Berhampur on 14 December 1923. On 19 April 1926, the Berhampur Court held that it had no jurisdiction to entertain the. suit and returned the plaint for presentation to the proper Court. From this order the plaintiffs took an appeal to this Court and with the memorandum of appeal they filed the plaint as an annexure. This Court dismissed the appeal on 26 May 1927, and the judgment that was given on that day concluded with the order: "Let the plaint-be returned to the plaintiff's forthwith." On 13 June 1927, the Deputy Registrar of this Court made an order-in accordance with which an officer of the Court returned the plaint to the plaintiffs advocate on that day with the following endorsement: This plaint was filed along with the memorandum of the appeal in Appeal from Order No. 193 1926, of on 27 April 1926. It is returned to the vakil for the plaintiff appellant today in terms of the Court's order, dated 26 May 1927, passed in the above mentioned appeal.

(2.) The plaint was thus taken back. It was refiled in the Alipore Court, on the next day, i.e., 14 June 1927. If no other consideration applies to the case,, and the suit is governed by Art. 52 of the Schedule to the Limitation Act, the suit,, when refiled, was, within time, if, under Section 14 of the Act, time is-taken to have run against the plaintiffs as from 13 June 1927, when the plaint was returned to their advocate, but not if it began to do so from 26th May 1927, on which date their appeal was dismissed and the order for the return of the plaint was pronounced. On the question of the applicability of Section 14 of the Act and the extent of such application, if any, the appellants arguments resolve themselves into three heads. Firstly, it has bean urged that good faith is an essential characteristic of the prosecution of the proceeding, though such prosecution may be in a wrong Court, in order to bring a case within the terms of the section and that in this case there was, in fact, no good faith, so that the case is at once taken out of the purview of the section. Secondly, it has been contended that with the pronouncement of its judgment by this Court on 26 May 1927, the proceedings "ended" within the meaning of Expl. 1 to the section, and therefore the plaintiffs were not entitled to exclusion of any time that elapsed since then. And, thirdly, it has been complained that the appellants were not allowed an opportunity which they were, in the circumstances of the case, entitled to, to rebut the evidence which the plaintiffs called without giving any previous notice or indication in any shape or form for explaining the period from 26 May 1927, the date on which the appeal was dismissed, and up to 13 June 1927, on which date the plaint was returned to them.

(3.) So far as the first of these contentions is concerned, we think it is sufficient for us to say that we are not satisfied that the institution of the suit in the Berhampur Court or the prosecution of the proceedings in that Court or in this Court was not bona fide made. The causa of action was sought to be made out, as having arisen in Berhampur upon an allegation- which, though it finds no place in the plaint, was nevertheless attempted to be proved in evidence-that the defendants would send the price of the consignments to the plaintiffs registered office in Berhampur. The proof offered in support of the allegation was not considered satisfactory and so the attempt failed. But it would be far from reasonable to infer want of bona fides from such failure or to attribute any bad faith to them for that reason. As an answer to the second contention, and for the purpose of establishing that a consideration of it is unnecessary, it has been urged on behalf of the respondents, i.e., the plaintiffs, that they hold in their hands an acknowledgment which in any case would save limitation It is a letter, Ex. 2 (1), bearing the signature of "Sudhir Bhusan Lahiri & Co." and dated 10 January 1921. If this letter as construed as an acknowledgment, as it may well be construed if it is read along with the letter of the plaintiffs (Ex. D) of 8 January 1921, to which it is the reply, no question of limitation would arise. We are not however of opinion that the said letter Ex. 2 (1) has been proved to have been signed by defendant 2 because we do not consider the evidence of P.W. 4, Jyotirmay Ray Chaudhuri, to be sufficient for that purpose. That witness, upon his own evidence, has seen defendant 2 sign "Sudhir Bhusan Lahiri & Co." in letters four or five times only, and that is all the opportunity he has had of knowing about the writing of defendant 2.