SHYAM LAL GOMATWALA Vs. NAND LAL

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the learned civil Judge of Bulandshahr by which he dismissed the plaintiff's suit claiming certain reliefs by way of declaration and injunction. The facts briefly appear to be these. There was at Dibai, in the district of Bulandshahr a ginning and pressing factory which was known as Sukhahand Shyam Lal Cotton Ginning and Pressing Factory. This factory, according to the plaint, was owned by a large number of partners exceeding twenty in number. Its legality appears to be doubtful, but we are not concerned with that question and shall leave it at that. It, however, appears that a joint Hindu family partnership called Sukhnand Shyam Lal really owned it. It further appears that the firm Sukhnand Shyam Lal owed a large amount to a Bombay firm, Messrs. Kila Chand Dev Chand, Ltd. On 30 April 1933 an equitable mortgage was granted by the firm Sukhnand Shyam Lal in favour of the Bombay firm for a sum of Rs. 1,78,000 odd. On 18 May 1933 the Bombay firm brought a suit for the enforcement of their mortgage and prayed the High Court at Bombay for the appointment of a Receiver. The High Court appointed one Mr. Nand Lal as the Receiver. This Mr. Nand Lal was one of the directors of Messrs. Kila Chand Dev Chand, Ltd. He had an agent serving under him named Murarji Udhayji. Nand Lal is defendant 1 and. Murarji is defendant 3 in the suit.

(2.) It has come in evidence that, according to a resolution which was passed on 20 November 1933, Lala Shyam Lal Gomatwala was appointed manager of the factory and he took actual possession of the same the very next day, that is, on 21 November 1933. Soon after, defendant 3 purporting to act on behalf of defendant 1 made an application to the Magistrate of Bulandshahr praying that steps under Section 145, Criminal P.C., be taken against Shyam Lal Gomatwala who, according to Murarji Udhavji, was in wrongful possession of the property. On 26 November 1933 the District Magistrate appointed Shyam Lal Gomatwala as Receiver. In July 1934 this matter was brought up to this Court. It came to the conclusion that the appointment by the District Magistrate of Bulandshahr of Shyam Lal Gomatwala as Receiver was an improper order, because the entire proceedings were pending in the Court of Bombay and the Bombay Court alone had jurisdiction to decide this, matter. In 1936 Murarji Udhavji, the agent of Mr. Nand Lal, applied to the District Magistrate of Bulandshahr that Shyam Lal Gomatwala should be called upon to render accounts for the period during which he had acted as Receiver of the estate. The learned Magistrate came to the conclusion that Shyam Lal Gomatwala could not be called upon to render accounts. This order was set aside in revision by this Court on 16 November 1937. On 12 December 1937 Shyam Lal Gomatwala brought the present suit and cited as defendants (1) Mr. Nand Lal, (2) Kila Chand Dev Chand and (3) Murarji Udhavji. His case, in the main was that the defendants had no right to move the criminal Court to call upon him to furnish accounts. On this basis he claimed the following reliefs: (a) A declaration that defendant 1 or 2 has no title to the profits, if any, of the factory which may have accrued due during the time that the plaintiff continued as Receiver or later when he continued in possession of the factory as manager. (b) A declaration that defendant 1 or defendant 3 has no right to proceed with the application for an account and deposit of money in the criminal Court. (c) An injunction restraining defendant 3 (from proceeding?) with his application aforesaid in the criminal Court. All the three defendants filed separate defences, but these defences did not come in conflict with one another. On the other hand, their defence, in the main which was identical was to the effect that defendant 1 was acting as a Receiver in pursuance of an order of the Bombay High Court and no suit could lie either against him or his agent, defendant 3, without permission of that Court. The further defence was that defendant 2 was, under the compromise decree which was passed on 25 January 1937, entitled to claim accounts from the plaintiff. Lastly it was pleaded that no injunction could be granted in the terms prayed for.

(3.) The learned civil Judge held that the suit could not be brought without the permission of the Bombay Court. He also held that an injunction in the terms prayed for, could be granted. Lastly he came to the conclusion that the compromise decree gave defendant 2 a right to claim accounts from the plaintiff. In this view of the case he dismissed the suit in toto.