J H RAYFIELD Vs. RAJ NARAIN

JUDGEMENT

(1.) This is an application on behalf of the defendant asking for a review of a decree passed by me on March 4, 1936.

(2.) The following are the circumstances which have led up to the application. The plaintiff filed a suit against the defendant in 1930 asking for a decree for commission which he said was due in respect of certain contracts to supply timber and sleepers to the Railways, which the plaintiff had been instrumental in obtaining for the defendant. On August 14, 1931, a consent decree was passed by Buckland, J., and it was referred to an Officer of the Court to report as to which of the contracts mentioned in the plaint remained unexecuted or unfulfilled owing to the default or negligence of the defendanti and as to what amount, if any, was due to the plaintiff by the defendant by way of damages or by way of commission. The dispute arose because of a term in the agreement, whereby the defendant not only undertook to pay commission on timber actually supplied, but also upon timber which he might fail to supply through his default or negligence. The plaintiff's claim was entirely, or almost entirely, in in respect of timber which the defendant was alleged to have failed to supply owing to his default or negligence. The Officer of the Court to whom the matter was allocated, made a report and in his findings expressed the opinion that there was no default or negligence on the part of the defendant, and that accordingly the plaintiff was not entitled to recover any sum from the defendant.

(3.) The plaintiff moved to discharge or vary that report and the application was dealt with by me. I delivered judgment on March 4, 1934, and held the findings of the Court's Officer should be upheld with regard to all the contracts which were the subject-matter of the suit except one. With regard to that contract, I held that there had been default within the meaning of the agreement, and that the plaintiff was entitled to recover a sum of Rs. 6,466 as commission in respect of timber which, out for his default the defendant would have supplied to the Railways. I said nothing about a decree being drawn up in t6fms of my judgment, and 1 am inclined to think that I dealt with the matter on the basis that it would thereafter come up for further directions on report. However, on March 7, 1936, the plaintiff put in a requisition for drawing up the decree. At the time when this suit was instituted, there was an application on the part of the plaintiff for the appointment of a Receiver of the various sums of money due from the Railways to the defendant. Eventually ho Receiver was appointed, and the plaintiff was secured by the defendant's depositing Government Paper to the value of Rs. 20,000 in Court, and by his undertaking not to execute a decree for Rs. 3,725 which he obtained in the Subordinate Judge's Court at Agra on June 19, 1930.