Kanhayalal Supdubhai v. Hiralal Deoram

Lokur, J.:—

This is an appeal from an order of the Assistant Judge of West Khandesh remanding a suit for disposal on merits. It was a suit for an account of certain deposits said to have been made in the defendant's shop by one Deoram. Deoram died in January 1938, and this suit was filed by his two sons and his widow. Soon after Deoram's death the plaintiffs filed Suit No. 86 of 1939 in the Court of the First Class Subordinate Judge at Dhulia. It was an omnibus suit against sixteen defendant?, asking for various reliefs. The present defendant was defendant No. 6 in that suit and the relief asked against him was an account of the deposits said to have been made in his shop by deceased Deoram—the very relief asked for in the present suit. As such a suit was bad for multifariousness, the plaintiffs were called upon to elect, and they gave a purshis confining it to their claim against defendants Nos. 1 to 5 and 7 to 13. As the suit was not proceeded with against defendant No. 6, the present suit had to be separately filed. The defendant contended, inter alia, that the suit was barred under O. XXIII, r. 1, sub-r. (3) of the Civil procedure Code, and that such a suit for an account was not maintainable. Both these contentions were upheld by the trial Court and the suit was dismissed. In appeal, the learned Assistant Judge disagreed with the trial Court on both the points and remanded the suit for further hearing and disposal on merits.

When the Plaintiffs' Suit No. 86 of 1939 was found to be bad for misjoinder of causes of action and defendants, they were called upon to elect the cause of action they were prepared to prosecute and the defendants against whom they wanted to proceed. In view of the finding that their suit was defective, they had to elect, and they stated that they would prosecute their claim based on their sale-deed, as against defendants Nos. 1 to 5 and 7 to 13 only. They said nothing regarding the other reliefs claimed or the other defendants on the record. But it was obvious that the other defendants became unnecessary parties and their names were struck off by the Court, without any specific request from the plaintiffs. The order of the Court compelled the plaintiffs to choose which cause of action they would pursue, and they never voluntarily withdrew or abandoned any claim in the sense contemplated by O. XXIII, r. 1 of the Civil Procedure Code. Under sub-r. (2) of that rule plaintiff may, in certain circumstances, be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. But a plaintiff can withdraw a suit as a matter of right without the permission of the Court, and if he does so, he shall be precluded from suing again on the same cause of action. He cannot withdraw a suit reserving to himself a right to bring a fresh suit, and it is urged for the defendant that by their purshis in Suit No. 86 of 1939 the plaintiffs abandoned their claim against him, and are precluded from filing a fresh suit in respect of the same claim. According to the defendant, the plaintiffs should have obtained from the Court liberty to file a fresh suit against him, before confining his suit only to the claim on the said-deed, as was done in Luckumsey Okerda v. Fazulla Casumbhoy. Such a permission might, and should have been asked for, if the plaintiffs were withdrawing or abandoning any part of their claim by voluntary choice; but it would be unreasonable to apply O. XXIII, r. 3 to a case where the plaintiffs were obliged to give up the defendant and the claim made against him, in obedience to the finding of the Court that the suit as framed was bad for multifariousness. The election to proceed with one cause of action against one set of defendants did not in such a case amount to the withdrawal or abandonment of the other causes of action whose inclusion in the same suit resulted in multifariousness. When the plaintiffs elected to proceed with one cause of action only, the defendant who was then defendant No. 6, had nothing to do with that cause of action, and his name was struck off by the Court of its own accord under O. I., r. 10 of the Civil Procedure Code. It is urged that even then a fresh suit would be barred under O. XXIII, r. 1, sub-r. (3), as held by the Privy Council in Mahant Singh v. Ubayi.

The facts of that case were peculiar. The four trustees of a Pagoda had given a contract to the plaintiff, and the respondent had stood surety for the trustees for payment of the contractor's dues. The contractor sued to recover his dues from all the five, and pending the suit the four trustees were removed and eight others were appointed, as trustees of the Pagoda. The contractor then applied to the Court to substitute the new trustees in the place of the old as defendants. The application was granted and therefore the names of the four original trustees were struck out and those of the new trustees inserted in their place. The suit then proceeded to trial and it was held that the four original trustees were personally liable under the terms of the contract. Hence the claim against the new trustees was dismissed and a decide was passed against the Respondent alone as guarantor. In appeal, the Respondent contended that he had been discharged from liability as the plaintiff had released the principal debtors by withdrawing his claim against the four original trustees. In considering the effect of the substitution of the names of the new trustees for the old ones, Lord Porter observed (p. 204):

“In England the striking out of the names of the four original trustees would not have affected the respondent's liability. A fresh action could have been brought against them at any time. But it is said that the law of Burma differs from the law of England in this respect, and reliance is placed on O. XXIII, r. 1 of the Code of Civil Procedure …………………………… The appellant indeed contended that he had not proceeded under O. XXIII, r. 1 in applying to substitute the new trustees for the old, but that his application was made under O. I, r. 10 alone. Their Lordships cannot accept this view. The last named rule no doubt authorizes the Court to order the name of a party improperly joined to be struck out and that the name of any person who ought to have been joined be added. But such an order is expressly made on such terms as may appear to the Court to be just. If no terms are inserted in the order, then, in Their Lordships' view, the effect of withdrawing the suit against some of the defendants is to be ascertained from O. XXIII, r. 1”.

Reliance is placed on this last sentence since in suit no. 86 of 1939 also, no terms were inserted in the order striking out the name of the defendant. But there was no misjoinder in the Privy Council case, and the substitution of the new trustees for the old ones was made at the instance of the plaintiff. He wanted to abandon this claim against the old trustees, and to prosecute the suit against the new trustees. He was not required to do so under any compulsion from the Court, but did it of his own free will. As held by a full bench of the Madras High Court in Abdul Sac. v. Sudara Mudaliar, where the Court has held that the parties and causes of action have been improperly combined, and at the instance of the Court, the plaintiff thereupon elects to confine the suit to one of the causes of action, the result in the eye of law is that the suit is non-existent so far as the parties and the cause of action given up are concerned, and these is no question of any, “withdrawal”. As pointed out by Beasley, C.J in Jujishti Panda v. Lakshmana Dola when the plaintiff has made his election, the proper procedure is to strike out the names of the defendants against whom he does not want to proceed, as having been “improperly impleaded”. Thereupon they case to be parties to the suit, and “must be treated as persons who had been dismissed from the suit and not as persons against whom the suit had been dismissed”. With respect, we entirely agree with this view.

The very words “withdrawal” and “abandonment” which bar a fresh suit under O. XXIII, r. 1, connote a voluntary action. The order of the Court striking out the name of a defendant of its own accord may, at the most, be regarded as dismissing the claim against him. In that case, as pointed out by Varadachariar, J. in Vedali Guru Vabhotlu v. Jogayya the plaintiffs position would be still better. Order XXIII, r. 1(3), will then have no application, and the dismissal on the ground of misjoinder cannot certainly operate as res judicata. In our opinion, when a defendant is not a proper party to a suit and there is a misjoinder, the proper procedure is to strike out his name under O. I, r. 10, and in that case second suit against him is not barred. But if he is a proper party, and the claim against him is not to be proceeded with, it may be dismissed by the Court, or withdrawn by the plaintiff, and if liberty to file a fresh suit is not obtained under O. XXIII, r. 1 sub-r. (2), then a fresh suit against him on the same cause of action is barred either as res judicata or under O. XXIII, r. 1, sub-r. (3).

Looked at from any point of view, the present suit is not barred by what the plaintiff did in Suit No. 86 of 1939.

The next question is whether a suit for accounts, valued at Rs. 5 only, is maintainable, when the plaintiffs allege in the plaint that Deoram deposited in the defendant's shop more than Rs. 6,000 in the names of himself and his relatives. The alleged relatives are not joined as parties to the suit, and it cannot be decided behind their backs that the amounts standing in their khatas in the defendant's shop do not belong to them, but were deposited by Deoram and belong to his heirs. Under O. VII, r. 2, of the Civil Procedure Code, where the plaintiffs sue for an amount which will be due on taking unsettled accounts between them and the defendant, the plaint must state approximately the amount sued for, and advalorem Court fees must be paid on it. According to the ruling in Bai Hiragavri v. Gulabdas, the approximation required may be but a rough and ready approximation such as the plaintiffs in any given case are able to give. But as pointed out by Cornish, J. in Suryanarayan v. Raja of Vijianararam suit does not necessarily become a suit for accounts because the plaint asks for an account. The plaint must show that the defendant is an accounting party and that the plaintiff claims on the footing that an account has to be taken to ascertain the sum due to him. A suit for an account is a special form of suit. It does not mean every case in which accounts have to be looked into in order to ascertain the correctness or otherwise of the amount claimed by the plaintiff. A suit for an account only lies where the defendant is under an obligation to render accounts to the plaintiff. There must be something more than a mere relationship of debtor and creditor. The defendant must stand in some other relation to the plaintiff, such as that of agent or bailee, or receiver or trustee, or partner or mortgagee. Thus in Narmada Gharan v. Maharaj Bahadur Singh Dugar; it was held that a pleader could not maintain against his client a suit for an account of the sum due to him in respect of his professional work, since the pleader, being an agent of his client, had no right to claim an account from his principal, as the principal owes no obligation to render accounts to the agent. The mere fact that in ascertaining the sum due to the plaintiff it would be necessary to investigate accounts does not alter the nature of the suit. This principle is not disputed, and the only question to be considered in this connection is whether the defendant as the deposited is liable to render an account of the deposits said to have been made with him by Deoram.

It is obvious that if the moneys had been paid to, and accepted by the defendant as deposits to be held in trust for Deoram and his heirs, then the defendant would be accountable as a trustee. On the other hand he would not be so accountable, if the moneys were given to him by way of loans. “A deposit, as distinct from a loan means a passing of money not for the convenience of the man to whom it is given, but for the benefit of the person who hands it over” (in arguendo in Nawab Major Sir Mohammad Ahbar Khan v. Attar Singh,. In actual practice it is often difficult to determine whether a given monetary transaction is a contract of loan or a contract of deposit in trust. A mere deposit of money does not necessarily create a fiduciary relation. As pointed out by Candy, J. in Dorabji Jehangir v. Muncherji Bomanji, all money paid to a man's credit with his banker is nothing but an ordinary loan and not a deposit. In the Privy Council case cited above Lord Atkin said:

“It should be remembered that the two terms are not mutually exclusive. A deposit of money is not confined to a bailment of specific currency to be returned in specie. As in the case of a deposit with a banker it does not necessarily involve the creation of a trust, but may involve only the creation of the relation of debtor and creditor, loan under conditions.”

This distinction is of importance for the computation of the period of limitation for a suit to recover such an advance and prior to 1908 there was a conflict of judicial opinion as to whether such a suit was governed by art. 59 or art. 60 of the first schedule to the Indian Limitation Act. But that conflict has been set at rest by the addition of the words “including money of a customer in the hands of his banker so payable” in the first column of art. 60 in the Act of 1908. But though art. 60 may be applicable, every deposit of money with a banker, to be repaid on demand, does not, in the words of Lord Atkins, “necessarily involve the creation of a trust.” That is to be determined from the circumstances of each case. Thus in Dordbji Jehangir v. Muncherji Bomanji the plaintiff's mother, wanting to create a fund which would be of use to him when he grew up, instead of letting the money lie idle placed it with her father in order that he might use the same for the purpose of his business, and credit it in his accounts in his grandson's name with compound interest every year. There was no trust for any specific purpose. The defendant could have buried the money if he liked. But it was evidently intended that he would be at liberty to use the money in his business, and in any case, the balance to the grandson's credit was to accumulate at compound interest. Candy, J. held that there was a trust which made the transaction something more than a loan, and that her father stood in a fiduciary relation to her. This view was upheld in appeal by Farran, C.J and Tyabji, J. in Muncherji Bomanji v. Dorabji Jehangir,. So too in the present case, it is alleged in the plaint that Deoram deposited his money with the defendant in confidence, and not because the defendant was in need of money and borrowed it from Deoram. No evidence has yet been recorded, and the accountability of the defendant is to be determined on the allegations in the plaint. On those allegations the transaction was a deposit made in trust, and the defendant stands in a fiduciary relation to the plaintiffs. Hence he is liable to render an account and the Plaintiffs' suit for accounts is maintainable.

As the plaintiffs have not stated in the plaint the names of the relatives in whose names the deposits are alleged to have been made by Deoram, they may*be called upon to do so, as suggested by the lower appellate Court, and if they prove that those deposits belonged to Deoram, the defendant may be required to render an account of them.

The appeal is dismissed with costs.

Appeal dismissed.

P.A.D