Joseph Nicholas vs M.R. Sivarama Aiyar and Another

This appeal is against the lower Court''s dismissal of the plaintiff''s suit for damages in connection with the defend-ant''s application for

attachment before judgment. The facts are that the attachment before judgment was ordered by the District Munsif of Calient on the 10th February

1919 and that 1st defendant accompanied by an Amin proceeded to the plaintiffs shop, The lower Court has dealt at considerable length with what

happened there, It is not necessary to repeat its observations on the evidence. We need only say that there is a preponderance of evidence,

including that of an European Sergeant whom we have no reason for distrusting, to the effect that the Am in proceeded so far as to take out the

plaintiff''s clothe from the shelves of his shop and began to measure them, when the plaintiff who had heard by then of what had happened paid the

amount of the claim. We, therefore, reject the defendants'' case on this point, that nothing was done towards making the attachment at all. It is in

respect of this action of the defendants and the Amin at their instance that plaintiff claims damages.

No doubt, there was not, in our opinion, a completed attachment by seizure of any of the plaintiff''s property: but that is not material. For the

claim, as stated in the plaint, is generally in respect of the acts done and not expressly or exclusively in respect of a completed attachment; and

there is, in our opinion, no doubt that the plaintiff may be entitled to compensation, even though the attachment was not completed, if,

notwithstanding that, he sustained injury by what was actually done. No authority has been adduced by the defendants to show that a completed,

attachment is necessary. In Rama Aiyer v, Govinda Pillai 32 Ind. Cas. 448 : 89 M. 952 : 30 M, L. J. 180; (1916) 1 M. W. N. 156 : 3 L. W. 82,

it was held that a mere procuring of an order for attachment before judgments did not afford a cause of action far damages. Without expressing

any opinion as to the correctness of certain parts of that decision, we can distinguish it from the facta now before us on the ground that they include

several acts of the defendants and the Amin, by which injury to the plaintiff has, as we shall show, been established.

That being our conclusion as to the actual occurrence proved, in respect of which the plaintiff claims, we have now to see whether be has

established what, according to the authorities, he must establish, that the defendants acted maliciously and without reasonable and probable cause.

Certain heads of proof of this were attempted at the trial, for instance, the plaintiff''s refusal to sell to the defendants a pony and Jutka, the

institution by the defendants of the suit in which this attachment was made in a Court which would not ordinarily exercise jurisdiction over the

plaintiff and, lastly, the fact that the plaintiff had borrowed from Nedungadi Bank at 12 per cent, interest instead of continuing to borrow from the

defendants as he had done in the past. In this Court the pony transaction baa not been relied on. It is not shown that the defend ants'' choice of the

Court in which they brought their suit was in any way unreasonable, The plaintiff''s resort to the Nedungadi Bank instead of to the defendants for a

loan is explained by the admitted fact that the defendants had refused to advance him more than they had already done. In these circumstances,

these items of evidence are useless to establish malice.

This part of the plaintiff''s case is, however, far better supported with reference to Exhibit XV filed by the first defendant in order to obtain the

conditional attainment, with whith we are concerned, since the allegations in it are, in our opinion, not merely unfounded, but such as he could not

have possibly supposed himself entitled to make. The absence of reasonable and probable same for taking; legal Ration in execution or otherwise

is, as was deaided by the Court of Appeal in Brown v. Hawkes (1891) 2 Q. B, 718 : 61 L. J. Q B. 151: 65 L. T. 108 : 55 J, P. 823, some

evidence, from which malice may be inferred; and we may say at once, that in this case with reference to the surrounding circumstances, we shall

be prepared to infer it therefrom. The defendants were proceeding under Order XXXVIII, Rule 5, Civil Procedure Code, and under that provision

they had to satisfy the Court that the defendant, with intent to obstruct or delay the execution of the decree that might be passed against him, was

about to dispose of the whole or any part of his properly. That being the only matter which they could legally present to the consideration of the

Court to obtain the order which they desired, it is useless for Mr. Ananthakrishna Aiyar on their behalf to represent to us that there were other

fasts available to them, on which their application might have been founded and as to the truth of which there can be no doubt. We must confine

ourselves to what they, in fact, had to submit to the Court, We find in paragraph 2 of Exhibit XV that the first defendant said, that the defendant

becoming aware of the fact that the aforesaid plaint was being prepared, with the intention of defrauding the creditors executed (to amend the

Court translation in accordance with the agreement of the practitioners before up) documents in respect of the properties belonging to him in the

name of his wife and others and borrowed large amount from the Nedungadi Bank on mortgage of his properties. If the defendant receives money

and appropriates the same and alienates the properties as aforesaid, there will be no remedy whatever to realise the amount in respect of the

decree that may be passed against him."" The substantial allegations here on which the Court was asked to act was that the plaintiff on becoming

aware of the fast that the plaint was being prepared executed documents in respect of the properties belonging to him in the name to him wife. The

only matter relied on by Mr. Auanthakrishua Aiyar as in any degree supporting this statement, as it stands, is that the plaintiff had in 1916

purchased soma property in his wife''s name and that he had subsequently paid for improve ments to it. The only admissible evidence of payment

for improvements to the property is given by plaintiff himself, other evidence being admittedly hearsay. The sixth defendant''s witness, no doubt,

speaks to the purchase of property by the plaintiff in his wife''s name, and it may be true that he did so or that even though he purchased the

property in his wife''s name, it was intended to be at his own disposal. That, however, is absolutely immaterial, because the charge, in consequence

of which the Court was asked to pass the order of attachment, was that he had done this in consequence of his knowledge that the plaint in the suit

was being prepared. The plaint in the suit was, according to Exhibit II, and that is the earliest evidence we have on the point, being prepared on 8th

June 1918, that is, long after the only purchase in the plaintiff''s wife''s name, of which we have any information. In these circumstances, there is

nothing to justify the allegation in Exhibit XV and it was, as the plaintiff must have known, clearly untrue. There is also a statement in Exhibit XV

that plaintiff, in consequence of his knowledge of the preparation of the plaint, executed documents in respect of which properties in the names of

others also, although there is no evidence whatever and no sort of attempt has been made to justify this. In these circumstances, our finding must be

that the affidavit on which the defendants obtained the order of attachment was not merely given in a material particular without reasonable or

probable cause but was also known to him to be without any justification at all.

As throwing light on defendants'' conduct, there are, further, their relations with the plaintiff. Toe defendants appear to have lent money to the

plaintiff for soma time and to have been quite unsuccessful in obtaining re-payment thereof, it is unnecessary to go through the details whish appear

in the oral evidence arid from correspondence. It is clear that the plaintiff was living from hand to month and not paying debts, until he had no

alternative but to do so and that the defendants had shown very considerable forbearance. The crisis was evidently reach-ed just before the suit

was brought, because the plaintiff succeeded in borrowing from the Nedungadi Bank already referred to at 12 per sent, the sum of Rs. 15,000,

and he even promised to use a portion of this in re-paying the defendants. The situation then was that the defendants having no alternative, brought

their snit and that they knew that there was in the plaintiff''s hands a means by whish they could get satisfaction of their debt, if they only could

secure it. It is a fair presumption, whish there is nothing to rebut, that the defendants actually did what they did in order to secure for the satisfaction

of their own debt the money of whish the plaintiff had become possessed, Taking that as their motive, and having regard also to the unjustifiable

character of the allegations in the affidavit, we have no hesitation in finding, differing on this point from the lower Court, that they acted not merely

without reasonable and probable cause of setting the law in motion, but also maliciously.

Before dealing with the question of damages, we consider an argument advanced by Mr. Ananthakrishna Aiyar, that the plaintiff bad no cause of

action, because he did not allege in his plaint that the proceeding, by which he was aggrieved, had ended in his favour and because it never in fast

did so end. The fasts are that the proceeding or the application for and the lower Court''s conditional order of attachment under Order XXXVIII,

Rule 5, came to an end, as the plaintiff paid the amount of fie defendant''s claim and the warrant wag returned to the Court with the endorsement

by the first defendant that ""the matter of the plaint having now been settled, there is no necessity for attachment."" It does not appear from the

record what happened to the suit; but, as the amount of the defendants had been paid, it either has been or should have been dismissed, As

regards the failure to mansion the result of the proceedings in the plaint, it need only be said that no objection was taken with reference to it at the

trial and that, if such an objection were pressed before us in appeal, we should meet it by allowing an amendment. As regards the more substantial

objection that the proceedings are not shown to have terminated in plaintiff''s favour and that they could not be regarded as having so terminated,

so long as the order for conditional attachment was not discbarged at his instance or otherwise, we observe, first, that it would be quite useless for

him to obtain such a discharge, when his creditor himself had informed the Court, as he did by the endorsement on Exhibit XVI and elsewhere, that

the attachment need not be processed I with, because the matter had been settled. On the broad question whether the termination of the

proceedings in the plaintiff''s favour is essential, there is, no doubt, abundant authority that it is so ; but such authority is applicable only to eases in

whish a distinct termination in favour of one party or other is possible, and not to a case such as that before us, in whish the proceedings cannot

end by their nature in any judicial disposal and in fast have been terminated by an act of the first defendant himself. In support of this distinction we

were referred to Gilding v. Eyre (1861) 10 C. B. 592 : (1861) 31 L. J. C. P. :(1861) 5 L T 136 (1861)9 W. R. 916 : 142 E. R. 584. 7 Jur, 110 :

128 R. R. 847. and Steward v. Gromett (1859) 7 C. B. 191 : 29 L. J. C. P. 170 : 6 Jur. 776 : 141 E. R. 788 : (1859)121 R. R. 451, In the

former of these cases the faots were very similar to the present and the Court dealt particularly with one feature of the case, the abandonment of

the proceedings by the creditor in consequence of the payment which the debtor, plaintiff, made in order to obtain his release from arrest, holding

that nothing arose in favour of the defendant from it. In these circumstances the argument founded on the absence of the termination of the

proceedings in the plaintiff''s favour must fail.

We have now to settle what damages we shall award. Reference has already been made to the state of the plaintiff''s credit and we need not

deal with it in greater detail. It is clear that he found it most difficult to obtain funds at any reasonable rate of interest, that there had been other

claims against him in the Courts that he had lost his credit with the defendants at least and that it was possible for him to borrow elsewhere only at

12 per cent. There is practically no evidence of value as to any detriment to his credit or position generally owing to the defendants'' action. He

himself says that customers did not resort to his shop, bat it is not possible to connect the falling off in his retail cloth trade with the state of his

credit. He says again and has adduced some evidence that the subscribers to a chit Fund which he was conducting began to default after this

recurrence. The Chit Fund has five hundred subscribers, and it is not, in our experience, unusual for a proportion of the subscribers to such chit

Funds to default. It is not shown by any evidence which we can accept that the default of some fifty subscribers in the present case is due to what

happened on the 10th February 1919. If it had been so, it should have been easy for the plaintiff to adduce much better evidence by calling some

of the defaulting subscribers or producing accounts of the chit Fund and he has not done either. Lastly, there is the evidence of an apparently

respectable gentleman, plaintiffs fifth witness, that the plaintiffs credit had suffered. He, however, gave no details and his general assurance do not

seem to us of any affirmative value. In these circumstances, we are unable to accept the plaintiff''s claim for the large sum of Rs. 5,250 as damages.

At the same time we are not prepared to grant only contemptuous damages. The facts are, that the plaintiff was put to annoyance and no doubt to

some extent to dishonour by this public employment of coercive processes without legitimate necessity and without justification. We think that, in

the circum stances, Rs. 50 will be a sufficient compensation for such mental pain and loss of reputation as he may have sustained. We, therefore,

allow the appeal, set aside the lower court''s decree and grant the plaintiff a decree for Rs. 50 with costs thereon throughout, The plaintiff will pay

the defendants their costs throughout, not on the whole amount in respect of which the suit was filed, but, in the circumstances of the case, on Rs.

1,500.