WELD AND CO Vs. SHER MAHOMED EKBAL AHMED

JUDGEMENT

(1.) This preliminary objection raises a two-fold point of jurisdiction, viz,, (1) whether in this case the whole cause of action arose out of the jurisdiction and therefore this Court has no power to hear the third party notice at all; (2) if part of the cause of action arose within the jurisdiction, then whether express leave was not necessary under Clause 12 of the Letters Patent before the third party notice could be served.

(2.) I am now on the third party notice, and have, as between plaintiffs and defendant, already given a decree in favour of the plaintiff s. The present issue, viz., No. 1, is an issue between the defendant and the third party.

(3.) On the first point, the substance of the suit relates to certain cotton contracts on which as I have said, I have found the defendant is liable to the plaintiff s. As between the defendant and the third party the defendant s case depends on a right of indemnity and substantially it is based on an express agreement of the 21st May 1916, Exh. No. 4. The effect of that agreement was that the third party was to take over the cotton contracts then outstanding between the plaintiffs and the defendant, and that the defendant was to carry out certain instructions of the third party in relation thereto, and that the third party thenceforth was to be responsible pecuniarily on these contracts. The third party says that the true relation was not that of principal and agent but that of vendor and purchaser or assignor and assignee. Even assuming in his favour without deciding the point that that is the true view, still it is clear that the contract, Ex. 4, contemplated the defendant carrying out its terms by performing certain acts in Bombay. In other words, if he came to sue the third party on this contract as he has now done, he would have to prove certain acts of his which either took place in Bombay, or which by means of telegrams resulted in acts in Bombay. What I refer to are the cotton transactions which the plaintiffs carried out in Bombay as the result of instructions given by the defendant. It seems to me that on that ground alone, a part of the cause of action has arisen in Bombay, because to sue on the contract, it would be necessary for the defendant to prove certain operations carried out in Bombay by his instructions.