JULIEN MARRET Vs. MAHOMED KHALEEL SHIRAZI AND SONS

JUDGEMENT

(1.) Their Lordships find it unnecessary to call upon counsel for the respondents in this case. This is an appeal from the High Court of Madras dismissing an appeal by the plaintiff, Mr. Marret. The suit arose cut of a. previous litigation, in which defendants 1 in this case, who are the respondents here, Messrs. Shirazi and Sons, brought an action against a French company and against Mr. Marrot in respect of contracts for the sale and delivery of hides. It appears that the French company carried on a tannery business in France and Mr. Marret had acted as their agent in Madras and in India generally. He also carried on business on his own account. In that suit Shirazi sued both the French company and Marret, alleging that Marret had acted as agent for the French company, and as soon as the plaint was issued, by the procedure which is provided in India, the plaintiffs proceeded to obtain attachment, before judgment, of property which they alleged belonged to the defendants, or either of them, and obtained, to begin with, a conditional order of attachment against a debt which they alleged the defendants, or either of them, were owed by a company called the South Indian Export Company, and also against a current and a deposit account in respect of which they made a similar application that the defendants, or either of them, had in the National Bank of India. Eventually that conditional order was discharged and a final order was made on 27 February 1919, by which the attachment was limited to a fixed deposit of Rs. 50,500 then with the National Bank of India, and which is stated in the order to be standing to the credit of defendants 1 and 2 or either of them, and the said sum was to remain under attachment till the determination of the suit. In fact that sum stood in the Bank in the name of Marret, and it has now been decided and it must be assumed that the money was in fact the property of Marret, and was not the property of the French company. Nevertheless, it appears to be plain that the effect of that order of attachment was that it gave the plaintiff, if he succeeded in the action, an opportunity at a later stage of putting in issue the question whether or not that money belonged to the French company, if he got a decree against the French company, or to Marret if he got a decree against Marret. The effect of that order was undoubtedly to cause inconvenience to Marret. The fixed deposit was part of his assets in India, which he desired to retain, and he thereupon took steps to see whether he could not obtain some other form of security which would be a substitute for the attachment of the fixed deposit, and he arranged that there should be a security bond given by the South Indian Export Company, a company, with which both defendants had had large dealings, a company of repute. Eventually, as stated on p. 165 of the record, an order was made by the Court on 3 July 1919, the material terms of which are : ''That upon the South Indian Export Company, Limited, Madras, executing a security bond in favour of the plaintiffs herein for the sum of rupees fifty thousand and five hundred (Rs. 50,500) only in place and stead of the attachment on the fixed deposit of the said sum of Rs. 50,500 now with the National Bank of India, Limited, Madras, standing to the credit of the first and second defendants herein or either of them, effected in pursuance of the said order dated 27 February 1919, the said attachment on the fixed deposit of the said sum of Rs. 50,500 only to be raised and that defendants 1 and 2 herein or either of them be at liberty to draw the said sum from the National Bank of India, Limited, Madras."

(2.) It is to be noticed that the security bond under the order is to be in place and stead of the attachment on the fixed deposit. The security bond was eventually drafted and it appears to have been drawn by Mrs. King and Partridge, who are made defendants to this suit, who were then acting as solicitors for the present plaintiff and in respect of whose action in this matter the plaintiff in this suit has made an alternative claim for damages for negligence. Now the bond, after saying that it is made between the South Indian Export Company and Shirazi and Sons and after reciting the suit which Shirazi had brought and reciting the attachment against the moneys, both in current and fixed deposit with the National Bank of India belonging to Marret, defendant 2 above named, recites the conditional order, and then it recites the modifications of it as to the sum of Rs. 50,500 on fixed deposit, and in the 3 recital it is said that Shirazi obtained an interim attachment against the money both of the fixed and of the current deposit belonging to defendant 2 above named.

(3.) Their Lordships only pause on that to call attention to the fact that in that security bond there is an express recital that this fixed deposit belonged to Marret and then it recites, as has been said, the order of 27 February 1919, which ordered that the attachment should continue until the trial, and then it recites an application that the attachment should be raised and the security bond should be executed in place and stead of the above named attachment. Then the operative part of the deed is that it: " witnesseth that in pursuance of the said order, dated the 3 day of July 1919, and in consideration of the premises the company doth hereby covenant and agree with the said plaintiffs that the company will in the event of the plaintiffs obtaining a decree against defendants 1 and 2 or either of them in the said C. S. No. 100 of 1919 on the file of the High Court at Madras in its ordinary original civil jurisdiction pay into Court to the credit of this suit the said sum of fifty thousand and five hundred rupees. "