LILADHAR NEMCHAND Vs. RAWJI JUGJIWAN

JUDGEMENT

(1.) This appeal is taken from a final judgment or order of the High Court of Judicature at Bombay, dated 5 April 1932 which in effect reverses a judgment or order of that Court in its ordinary original civil jurisdiction, dated 9 October 1931. The defendant in the suit in which these orders were pronounced, who is the present appellant, is a share broker in Bombay. The plaintiff in the suit, who is the present respondent, was a client of his. The principal question submitted for the decision of the Board - a question of fact-is whether a sale for the settlement of April 1920, and a purchase for the settlement of May 1920, of 500 shares of the Simplex Mills, Ltd. (hereinafter referred to as "Simplex shares") and certain resultant transactions, all of which were effected by the appellant, were transactions for which the respondent was liable to the appellant. The first Court held that the respondent was liable; the appeal Court held that he was not. On 1 December 1922, the respondent instituted the present suit against the appellant for the market value of nine shares of four mill companies in Bombay, which were said to have been handed by the respondent to the appellant, on or about 16 May 1920, for sale. The appellant, in his written statement, averred that, on 20th June 1920, these shares were handed over to him in security of the respondent's indebtedness in respect of certain share dealings with him, and he also counter-claimed for certain sums alleged to be due to him by the respondent. The appellant claimed the right to retain the shares till he was paid the debt due to him, or to sell them in satisfaction of his claim against the respondent.

(2.) In the suit an order was made, by consent, referring to the Commissioner to take an account of the dealings between the parties from 1 January 1920, to 31 October 1920, and to ascertain and report what sum was due by the one to the other on 16 May 1920, and 20 June 1920. The appellant duly lodged his account before the Commissioner, Mr. Wadia, and to these, objections were lodged by the respondent. On 23 March 1929 the Commissioner reported. He found that there was due by the respondent to the appellant Rs. 8,162-3-0 on 16 May 1920, Rs. 18,587-3-0 on 20 June 1920, Rs. 24,209-11-0 on 31st October 1920. The transactions relating to the Simplex shares referred to supra were included in the accounts considered by the Commissioner.

(3.) The respondent filed objections to the report of the Commissioner, whereupon the case came before Baker, J., for decision. In the result, on 12 December 1930, he set aside the report of Mr. Wadia, and remitted the case for consideration to another Commissioner, Mr. Dadachanji, who had, in the meantime, succeeded the first Commissioner. On 29 June 1931, Mr. Dadachanji reported. He found that Rs. 2,849-11-0 was due by the respondent to the appellant on 16 May 1920, Rs. 3,375-5-0 due by the appellant to the respondent on 20th June 1920, and Rs. 2,247-3-0 due by the respondent to the appellant on 31 October 1920. The difference between the results arrived at by the two Commissioners is due in large measure to the fact that the second Commissioner eliminated from the accounts certain dealings in respect of the 500 Simplex shares referred to.