FIRM HARJIVANLAL BALKISON Vs. FIRM RADHAKISON GOPIKISON

JUDGEMENT

(1.) This is an appeal from a decree dated 25 September 1934 of the High Court of Judicature at Bombay, Appellate Civil Jurisdiction, reversing a decree of that Court in its Original Civil Jurisdiction dated 27 July 1933. The present suit, which may be conveniently referred to as the Bombay suit, was brought by the respondents, a firm, against the appellants, a firm, on 15 January 1929, for the recovery of Rs.3,219-4-6, as the balance due from the defendants in respect of certain transactions between the parties in cotton, wheat and silver and interest thereon up to the date of suit. The above balance was composed of Rs.476-11-9 in respect of transactions during 1927-28 in cotton and Rupees 2,569-4-9 in respect of transactions in wheat and silver. The balance of Rupees 476-11-9 in respect of the cotton transactions was arrived at after appropriating to these transactions the remittances by the defendants amounting to Rs.18,000 or thereby referred to in the counter-claim. At a late stage the defendants admitted liability in respect of the wheat and silver transactions, but they maintained a counter-claim for a refund by the plaintiffs of a sum of Rs.18,154, which had been paid to them by the defendants in various amounts during the period over which the transactions took place.

(2.) The counter-claim had been made by the defendants in a supplemental written statement, filed on 3 December 1929, in which they also challenged the cotton transactions as void in respect that they did not comply with the statutory form prescribed by the bye- laws of the East Indian Cotton Association Ltd., and were, therefore, rendered void by the provisions of the Bombay Cotton Contracts Act, (14 of 1922); and they maintained that accordingly the plaintiffs were not entitled to appropriate any of the defendants' moneys to the losses on such transactions, but were bound to return them to the defendants. The issue as to the validity of the cotton transactions, along with three of the other issues, which are not now material, was selected for trial in the first instance by Kemp J., who, by a judgment dated 18 February 1930, held the cotton transactions subsequent to 16 January 1928 to be void; on appeal, the High Court held, on 12 August 1930, that the whole of the transactions were void. By consent this decision followed the decision of the High Court in a similar suit also then before them, their decision in which was afterwards affirmed by His Majesty in Council: Radhakisan Gopikisson V/s. Balmakund Ramchandra, (1933) 20 AIR PC 55 .

(3.) The suit having returned for trial of the remaining issues before Kania J., on 26 July 1933, the defendants, as already stated, admitted their liability for the wheat and silver transactions, and the plaintiffs proposed a new issue as to whether the counter-claim was barred by reason of the dismissal of Suit No.113 of 1928 at Cawnpore, which may be conveniently referred to as the Cawnpore suit. The learned Judge disallowed the issue, on the ground that it was not pleaded, that it was too late, and that, although it was a question of law, it would require to be argued on facts which were not pleaded and for which the necessary documents were not disclosed. He further refused an application for amendment of the plaintiffs' reply to the counter-claim in order to raise the issue of res judicata, and he declined a tender by the plaintiffs of the plaint, written statement and judgment in the Cawnpore suit as evidence. On 27 July 1933 Kania J. held that the plaintiffs were not entitled to any indemnity from the defendants in respect of the losses in the cotton transactions and that the defendants were entitled to recover under their counter-claim. He therefore dismissed the suit, and gave the defendants a decree for the amount of their counter-claim, which was agreed at the figure of Rs.16,244-3-0.