1933 (7) TMI 21 - HC - Indian Laws

Court rules in favor of plaintiff for Rs. 971.80 + interest and costs. Defendants' claim to retain Rs. 1,300 denied.

Damodar Das Versus Morgan And Co. on 20 July,

Damodar Das Versus Morgan And Co. on 20 July, - AIR 1934 Cal 341 Issues Involved:1. Cause of action in the plaint.2. Plaintiff's entitlement to the sum of Rs. 1,300.3. Plaintiff's claim for Rs. 400 due to breach of duty by defendants.4. Defendants' right to retain Rs. 1,300 against the general balance of the plaintiff's account.5. Applicability of attorneys' lien in India.Detailed Analysis:1. Cause of Action in the Plaint:The defendants contended that the plaint disclosed no cause of action, arguing that there had been no assignment of the proceeds of Gregory's decree in favor of the plaintiff, and the warrant of attorney was to act on behalf of Gregory, not the plaintiff. However, the court opined that the defendants, due to their conduct, could not deny recognizing the Rs. 1,300 as the plaintiff's money. Statements of general account and correspondence indicated that the defendants conceded the plaintiff's claim to Rs. 1,300, subject to their cross-claims.2. Plaintiff's Entitlement to the Sum of Rs. 1,300:The plaintiff claimed that the defendants wrongfully settled the suit for Rs. 1,300 without his consent, causing him a loss of Rs. 400. The defendants admitted receiving Rs. 1,300 but denied liability to pay it to the plaintiff, stating it was appropriated towards their general balance of account as the plaintiff's solicitors having a lien on the money and/or as creditors. The court found that the defendants' substantive defense involved a recognition that the money paid in August 1928 was prima facie the plaintiff's money.3. Plaintiff's Claim for Rs. 400 Due to Breach of Duty by Defendants:The plaintiff claimed Rs. 400 on the ground of a breach of duty by the defendants as his attorneys. The court found no evidence that the defendants were acting as the plaintiff's attorneys concerning the litigation steps, as the warrant of attorney was still in Gregory's name. The offer to give the plaintiff credit for Rs. 400 was merely made to arrive at an amicable settlement and was without prejudice to the defendants' right to dispute their liability to the plaintiff in respect of this sum.4. Defendants' Right to Retain Rs. 1,300 Against the General Balance of the Plaintiff's Account:The defendants claimed the right to retain Rs. 1,300 as the plaintiff's attorneys or creditors. The court noted that the defendants' claim as creditors was barred by limitation when the written statement was filed. The defendants' claim to the money was based purely on their rights as attorneys. The court referred to the rights of attorneys concerning lien, as discussed in Tyabji Dayabhai and Co. v. Jetha Devji and Co., and found that a solicitor's lien in England, except those rights depending on statute, applies to attorneys in India.5. Applicability of Attorneys' Lien in India:The court considered the three types of lien: passive or retaining lien, common law lien on property recovered or preserved, and statutory lien enforceable by a charging order. The statutory lien, as per the Solicitors Act, 1860, did not apply in India. The common law lien was not available for the general balance of account but only extended to the costs of recovering or preserving the property in suit. The passive or retaining lien was recognized in India, allowing attorneys to retain deeds, papers, or other personal chattels but not money. The court concluded that the defendants could not claim in the capacity of creditors and their claim to retain Rs. 1,300 against the balance of their accounts was untenable.Judgment:The plaintiff's claim was reduced by the amount of the two bills outstanding against him in respect of the two suits, totaling Rs. 328-8-0. The court decreed in favor of the plaintiff for Rs. 971-80 with interest on judgment at 6 percent and costs as in an ordinary defended suit in the High Court.