Joseph Nicholas vs Sivarama Ayyar and Another

This Appeal is against the lower Court''s dismissal of the plaintiff''s suit for damages in connexion with the defendants'' application for attachment

before judgment. The facts are that the attachment before judgment was ordered by the District Munsif of Calicut on 10th February 1919 and that

first defendant accompanied by an Amin proceeded to the plaintiff''s 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 Amin proceeded so far as to take out the plaintiff''s cloths

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 boen adduced by the defendants to show that a completed

attachment is necessary. In Rama Ayyar v. Govinda Pillai I.L.R.(1916) Mad. 952 it was held that a mere procuring of an order for attachment

before judgment did not afford a cause of action for damages. Without expressing any opinion as to the correctness of certain parts of that

decision, we can distinguish it from the facts now before us on the ground that they included 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 in respect of which the plaintiff claims, we have now to see whether he 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 has not been, relied on. It is not shown that the defendants'' 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 attachment with which 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 cause for taking legal action in execution of otherwise

is, as was decided by the Court of Appeal, in Brown v. Hawkes [1891] 2 Q.B. 718, 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 are 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

property. 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. Ajrantakrishna Ayyar on their behalf to represent to us that there were other facts 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 us) documents in respect of the properties belonging

to him in the name of his wife and others and borrowed large amounts 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 realize the amount in

respect of the decree that may be passed against him.

The substantial allegation here, on which the Court was asked to act, was that the plaintiff on becoming aware of the fact that the plaint was

being prepared executed documents in respect of the properties belonging to him in the name of his wife. The only matter relied on by Mr.

Anantakrishna Ayyar as in any degree supporting this statement, as it stands, is that the plaintiff had in 1910 purchased some property in his wife''s

name and that he had subsequently paid for improvements 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 witness for the defendants 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 properly 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 reparation of the plaint executed documents in respect of his 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 the defendants'' conduct, there are further their relations with the plaintiff. The defendants'' appear to have lent money to the

plaintiff for, come time and to have been quite unsuccessful in obtaining repayment thereof. It is unnecessary to go through ''the details which

appear in the oral evidence and from correspondence. It is clear that the plaintiff was living from'' hand to mouth, 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 reached just before the suit

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

he even promised to use a portion of this in repaying the defendants. The situation then was that the defendants, having no alternative, brought their

suit and that they knew that there was in the plaintiff''s hands a means by which they could get satisfaction of their debt, if they could only secure it.

It is a fair presumption, winch 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 which 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 flower Court, that they acted not merely without

reasonable and probable cause for setting the law in motion, but also maliciously.

Before dealing with the question of damages, we consider an argument advanced by Mr. Anantakrishna Ayyar, that the plaintiff had 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 fact

did so end. The facts arc 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 the defendants'' claim and the warrant was 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, bat, as the amount of the defendants had been paid, it either has been or should have been dismissed. As

regards the failure to mention 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 discharged 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 proceeded 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 cases in

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

end by their nature in any judicial disposal and in fact 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, and Steward v. Gromett (1859) 7 C.B. 191, In the former of these cases the facts 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; but 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

occurrence. 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 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, and he has not done either. Lastly, there is the evidence of an apparently respectable

gentleman, fifth witness for the plaintiff that the plaintiff''s credit had suffered. He, however, gave no details and his general assurances 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 circumstances, 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.