ALFRED WILLIAM DOMINGO Vs. LCDE SOUZA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for rendition of accounts brought against the defendant. The plaintiff's case was that on 16 February 1920, the parties entered into a definite contract under which it was agreed that the defendant was to advance to the plaintiff money necessary for the purchase of 100,000 French francs, the amount being provisionally estimated to be Rs. 60,000 at 9 per cent per mensem interest payable in two years; it was agreed that these francs would be kept in fixed deposit in some French bank, and on the expiry of the period of deposit would be converted into pounds sterling and remitted to India, and that the defendant, after deducting the amount of his principal and interest, was to pay to the plaintiff the balance of the profit, if any, and if there was loss the plaintiff would be liable for it. The plaint as originally filed, was too lengthy and verbose. The Court ordered that it should be cut down and abridged. Even after amendment it covers seven printed pages. It necessarily gives an abstract of the contents of various correspondence, and it would be a hopeless task to summarize it at this stage. The defendant did not deny the completion of the contract for the purchase of the French francs. But his main pleas were that subsequently, in June 1920, the plaintiff entered into another contract with the defendant for the purchase of 500 ordinary and 500 preference shares of the Premier Oil Mills, which were to be taken over by the plaintiff in the month of December following, and in case the plaintiff failed to take them over the defendant would be at liberty to set off and adjust the accounts for profit and loss as the case may be on the two transactions. There was no express mention in the written statement that the plaintiff was to pay up the amount borrowed by him within any fixed time or that he had broken the contract by not paying the amount within that time. It was, however, pleaded that the plaintiff failed to perform his part of the contract and the defendant was therefore justified in "putting an end to the whole affair" on 16 April 1922. There was also a plea that the plaintiff accepted the position as communicated to him by the letter bearing the date mentioned, and after a lapse of two years was estopped from recovering anything.

(2.) The bulk of the evidence consisted of the correspondence between the parties and the bank through which the transaction of the purchase of francs was carried on, and also of the oral statements of three witnesses. The plaintiff examined himself as his sole witness. The defendant went into the witness-box and also produced a witness Mr. Losasso.

(3.) In the witness-box the plaintiff absolutely denied that there was any complete contract with regard to the purchase of the Oil Mill shares and denied that he ever agreed to have the two accounts adjusted together. He also denied that he had agreed to make payments for the francs by monthly instalments, and denied that he had committed any breach. On the other hand the defendant swore that there was a complete sale of the Oil Mill shares by the defendant to the plaintiff, and that there was a distinct agreement that the two transactions should form part and parcel of one transaction and that there would be adjustment of accounts of the shares and the francs. He further stated that the plaintiff did not pay the amount which he had agreed to pay and there was consequently a breach on his part. As regards the adjustment of the accounts the defendant was very vague in his statement and although he stated that he had made the accounts between himself and the plaintiff he could not tell if he credited the plaintiff with any dividend for the intervening period, although he admitted that if there were any dividends he ought to have credited him with them and was not prepared to state that there were no dividends up to the time that he made up the accounts. He also admitted that the ordinary and preference shares of the Oil Mill still were in his own name and that they were never transferred to the plaintiff's name, and that if there had been a dividend he himself must have received the same. As regards the profit made on the transaction of the francs he stated that between Rs. 26,000 and 27,000 were realized by him for those francs. With regard to the oral contract between the parties for the purchase of the Premier Oil Mill shares the defendant was corroborated by the statement of Mr. Losasso, who said that in 1920 the plaintiff admitted to him that he had purchased Premier Oil Mill shares from the defendant.