CURRIMBHOY AND CO LTD Vs. LACREET

JUDGEMENT

(1.) The suit, out of which this appeal has arisen, was instituted by the plaintiff on 14 May 1924 in the Court of the Subordinate Judge at Asansol against Messrs. Oosman Jamal & Sons Limited, for damages for breach of contract for the sale and purchase of certain lands with mining rights thereunder in mouza Khandra in the district of Burdwan, for recovery of khas possession of certain properties of which possession had been given to the said defendants pending completion of the contract and particulars whereof are given in the plaint, and for an account of certain quantities of coal which had been raised by the said defendants or, in the alternative, for specific performance of the said contract and for other reliefs as stated in the plaint.

(2.) More than 2 years after the institution of the suit, namely, on 30 June 1926, an order for compulsory liquidation of Messrs. Oosman Jamal & Sons Limited was passed by this Court on its original side and a Mr. R. Ray, chartered accountant, was appointed liquidator, The liquidator was thereupon added as a defendant to this suit on 13 July 1926. On 21 August 1926 the present appellants Messrs. Currimbhoy & Co. Ltd. (hereinafter called Currimbhoys) applied to the learned Subordinate Judge to be added as defendants to this suit. In their application for addition as defendants, Currimbhoys stated that Messrs. Oosman Jamal & Sons Ltd. (hereinafter called Jamals) undertook sometime in September 1922 to provide for them a coal mining property" known as Khandra colliery comprising about 400 bighas of coal bearing lands in one block with all rights, buildings, shafts, machinery, plant and that implements for the proper working of a colliery, and that pursuant to that agreement they had advanced to Jamals a large sum of money amounting to about five lacs of rupees, with part of which the said colliery had as a matter of fact been developed; that the said colliery had "long" been managed by Jamals on their behalf as managing agents, and that they were the real owners of the said colliery. They further stated that in these circumstances, although no conveyance of the said colliery and lands had been executed in their favour, they were the only persons interested in the property which was the subject matter of the litigation, and that as the pecuniary condition of Jamals had then become precarious, they had been obliged to take over direct possession and management of the said colliery from 7 May 1926.

(3.) The plaintiff at first strenuously objected to Currimbhoys being added as defendants to this suit and the grounds upon which such objection was based were set out in the plaintiff's petition dated 18 September 1926. On these grounds the plaintiff denied all the allegations of fact relied upon by Currimbhoys. Currimbhoys application, however, was not disposed of by the Court till 28 July 1927, when, as appears from the order sheet, the plaintiff having agreed to their being added as defendants to this suit without prejudice to his objections, an order was made by the learned Subordinate Judge adding Currimbhoys as defendants. Thereafter Currimbhoys filed their written statement on 12 August 1927, but the issues arising on the pleadings as they then stood wore not finally settled till 21 August 1928. The suit eventually was disposed of by the learned Subordinate Judge by his judgment and decree dated 12 October 1928.