Kolkata Court May 1914 Judgments
Tarak Nath Sarkar Vs. Natabar Mondal
Court: Kolkata
Decided on: May-29-1914
Reported in: AIR1915Cal744(2),30Ind.Cas.45
1. This appeal is directed against an order by which the District Judge, in concurrence with the Court of first instance, has refused an application for execution of a decree. The judgment-debtor pleaded that the decree had been satisfied by payment out of Court and that the satisfaction had been notified to the Court by the decree-holder. The decree holder objected that no notice could be taken of the alleged payment, as the record of the Court did not show that it had been certified under Clause (3) of Rule 2 of Order XXI of the Code; and he denied that the decree had been satisfied or that he had ever admitted satisfaction in any petition filed by him in Court. The Courts below have found that the payment was in fact made as stated by the judgment-debtor and a petition was filed in Court by the decree-holder notifying that the decree had been satisfied in full. But this petition has not been traced and there has been much speculation as to how it has disappeared. We are not concerne...
Tag this Judgment!Damra Coal Company Vs. Benares Bank
Court: Kolkata
Decided on: May-29-1914
Reported in: AIR1915Cal624,28Ind.Cas.569
1. This is an application for leave to appeal to His Majesty in Council. The petitioner contends that the order in question is a final order within the meaning of Clause (a) of Section 109 of the Code of Civil Procedure, and that, in any event, the case is such that this Court should certify under Clause (c) of Section 109 that it is a fit one for appeal to His Majesty in Council.2. This petitioner has Instituted a suit for declaration that a mortgage decree obtained by the opposite party is fraudulent, and for permanent injunction to restrain the execution of that decree. During the pendency of that suit, an application was made for a temporary injunction to restrain the execution of that decree. The Subordinate Judge at one stage refused the application for a temporary injunction, but later on granted the application. On appeal to this Court that order has been reversed, and the application for temporary injunction refused. The petitioner now seeks for leave to appeal against this or...
Tag this Judgment!Amjadennessa Bibi Vs. Rahim Buksh Shikdar
Court: Kolkata
Decided on: May-28-1914
Reported in: (1915)ILR42Cal286
Holmwood and Chapman, JJ.1. The only point raised, in this second appeal, in that the agreement really having been in invito, a refund suit can be maintained in Court. We have only to point out that neither the pleadings .nor any issue, nor any finding of the lower Courts, nor apparently any evidence appears in support of the question of fact that there was any pressure upon the plaintiff to pay this money in consideration for not being prosecuted. The so-called admission of the defendants, in their written Statement, goes directly to the contrary.2. It is urged that in every case the fear of punishment is an undue influence and that if the defendant accepts money to screen the plaintiff from punishment he thereby exerts this undue influence. Of the exceptions given by Pollock, the one on which alone reliance is placed is 'unless the agreement was made under such circumstances as between the parties that if otherwise lawful it would be voidable at the option of the party seeking relief...
Tag this Judgment!Raj Kumar Sarkar Vs. Faizuddi Tarafdar and ors.
Court: Kolkata
Decided on: May-28-1914
Reported in: AIR1915Cal635,30Ind.Cas.891
1. These are appeals by the plaintiff in a suit for recovery of arrears of rent. The claim is based on a kabuliyat executed on the 11th February 1898 by the tenants in favour of the plaintiff and his co-sharers, who have been joined as defendants in the suit. The tenants contend that the kabuliyat was in contravention of Section 29 of the Bengal Tenancy Act and that they are consequently not liable to pay rent at the rate mentioned therein. In our opinion this contention is well founded and must prevail.2. The kabuliyat recites that the tenants held an ancestral jama of 10 bighas at an annual rent of Rs. 6-15 under the plaintiff, his co-sharers and a lady named Jadumonee Dasi. The tenants agreed by the kabuliyat that from the date thereof they would hold the land in the share of the plaintiff and his co-sharers at the rate of Rs. 18-6. This was clearly in contravention of Section 29 of the Bengal Tenancy Act. It cannot be maintained that a new tenancy was created by the kabuliyat. The ...
Tag this Judgment!Rup Chand Ghose Vs. Narendra Krishna Ghose
Court: Kolkata
Decided on: May-28-1914
Reported in: AIR1915Cal764,28Ind.Cas.683
1. This is an appeal by the eighth defendant in a suit for arrears of rent. The only point in controversy between the parties relates to the claim for interest. The defendant contends that he is not liable for the interest, because he made a valid tender of rent to the landlord before the suit was brought and such tender was improperly refused. The Courts below have overruled tins objection and have held him responsible for interest. On the present appeal, the contention has been reiterated that there was a valid tender of rent which was not accepted, because the tenant asked for a receipt in the statutory form. To appreciate the point in controversy, we must refer briefly to the terms of the contract between the parties.2. On the 24th August 1898, Annoda Prasad Mojumdar, represented in this suit by the first seven defendants, obtained a permanent and transferable tenure from the plaintiff. The tenure-holder gave collateral security, at the same time, to the landlord for the rent as al...
Tag this Judgment!Srimati Amjadnessa Bibi and ors. Vs. Rahim Bakas Sikdar and ors.
Court: Kolkata
Decided on: May-28-1914
Reported in: 28Ind.Cas.713
1. The only point raised in this second appeal is that the agreement really having been in invito a refund suit can be maintained in Court. We have only to point out that neither the pleadings nor any issue nor any finding of the lower Courts nor apparently any evidence appears in support of the question of fact that there was any pressure upon the plaintiff to pay this money in consideration for not being prosecuted. The so called admission of the defendants in their written statement goes directly to the contrary.2. It is urged that in every case the fear of punishment is an undue influence and that if the defendant accepts money to screen the plaintiff from punishment he thereby exerts this undue influence. The exceptions given by Pollock on one of which alone reliance is placed is 'unless the agreement was made under such circumstances as between the parties that if otherwise lawful it would be voidable at the option of the party seeking relief.' It is obviously not voidable under ...
Tag this Judgment!NabIn Chandra Saha Vs. Sinclair Murray and Co.
Court: Kolkata
Decided on: May-28-1914
Reported in: AIR1914Cal818,25Ind.Cas.951
Chaudhuri, J.1. This is an application by one Nabin Chandra Saha, a merchant, that the award purported to have been made by the Bengal Chamber of Commerce or arbitrators appointed by them, dated the 25th, March 1914, and filed on. the 27th March 1914, should be set aside and that Messrs. Sinclair Murray and Co., respondents, should be restrained from enforcing the same. The petition mentions the award in the singular number, although there are two. This was pointed out to the learned Counsel appearing on behalf of Messrs. Sinclair Murray and Co. and the petitioner asked for leave to put in a second petition. Such application has been filed subject to the objection of the other side. There were two contracts entered into between the petitioner and Messrs. Sinclair Murray and Co., dated the 3rd April 1913. The contracts contained an arbitration clause in these terms: Any dispute arising out of these contracts shall be referred to the arbitration of the Bengal Chamber of Commerce, whose d...
Tag this Judgment!A.H. Ghaznavi and Co. Vs. Budge-budge Jute Mills
Court: Kolkata
Decided on: May-28-1914
Reported in: AIR1914Cal181,25Ind.Cas.955
Chaudhuri, J.1. This is an application by Ghaznavi and Co. that an award purporting to have been made by the Bengal Chamber of Commerce, which was filed on the 17th April 1914, be set aside and that the Budge-Budge Jute Mills, respondents, be restrained from enforcing the same. The matter arose upon a contract, 'dated the 22nd July 1913. The petitioner sold 300 bales of jute rejections as sample lot, shipment at once. There was an option provided in these terms : The buyers have the option of taking a further lot of 1,700 bales on approval of these lots and at the same rate.' The contract had an arbitration clause in these terms: Any dispute arising in this contract shall be referred to the arbitration of the, Bengal Chamber of Commerce, whose decision shall be accepted as final and binding on both the parties.' The petitioner did not deliver the jute under the contract. Messrs. Andrew Yule and Co., as agents of the Budge-Budge Jute Mills, wrote to the Registrar of what was known as th...
Tag this Judgment!Biswambhar Shaha Vs. Ram Sundar Kaibarta
Court: Kolkata
Decided on: May-27-1914
Reported in: (1915)ILR42Cal294
Holmwood and Chapman, JJ.1. This is a second appeal arising out of a decision given by the Subordinate Judge of Comilla on the 13th November 1911, holding that a certain application under Section 90 of the Transfer of Property Act was not barred by limitation and that the suit must be remanded to the Munsif for determination, of what balance is legally recoverable from the defendant otherwise than from the property sold. An appeal was preferred to this Court on the 15th July 1912 and the first ground was with regard to the question of limitation, the second ground, was with regard to the order of remand, the third, was the general ground that the learned Subordinate Judge has misconstrued the law. That can only refer to the law of limitation which was the only question raised.2. As regards the remand, we find that the defendants-appellants have been guilty of the greatest ladies. The appeal which they filed on the 4th May 1912 was without the certified copy of the Munsif's judgment and...
Tag this Judgment!Raj Kumar Sarkar Vs. Faizuddi Tarafdar and ors.
Court: Kolkata
Decided on: May-27-1914
Reported in: AIR1915Cal613,30Ind.Cas.283
1. These appeals are directed against two appellate decrees of the Subordinate Judge made in a suit for arrears of rent. The plaintiff seeks to recover rent from the tenant defendants at the rate of Rs. 38 a year on the strength of a kabulyat executed on the 27th March 1898. The defendants contend that the kabulyat was obtained under circumstances which make it inoperative, and, that at any rate, it is void because it enhances the rent contrary to the provisions of Section 29 of the Bengal Tenancy Act. The Courts below have overruled the objection that the kabulyat was executed by the tenant defendants under coercion. The Courts have also concurrently held that the kabulyat was in contravention of Section 29 of the Bengal Tenancy Act, but they have taken divergent views upon the question of the extent of the relief to which the plaintiff is entitled. The primary Court gave the plaintiff a decree on the footing that the defendants were liable to pay rent at the rate of Rs. 29. Against t...
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