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TMI Blog1929 (11) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... efendants, or either of them, and obtained, to begin with, a conditional order of attachment against a debt which they alleged the defendants, or either of them, were owed by a company called the South Indian Export Company, and also against a current and a deposit account in respect of which they made a similar application that the defendants, or either of them, had in the National Bank of India. Eventually that conditional order was discharged and a final order was made on 27th February 1919, by which the attachment was limited to a fixed deposit of ₹ 50,500 then with the National Bank of India, and which is stated in the order to be standing to the credit of defendants 1 and 2. or either of them, and the said sum was to remain under attachment till the determination of the suit. In fact that sum stood in the Bank in the name of Marret, and it has now been decided and it must be assumed that the money was in fact the property of Marret, and was not the property of the French company. Nevertheless, it appears to be plain that the effect of that order of attachment was that it gave the plaintiff, if he succeeded in the action, an opportunity at a later stage of putting in iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,500 on fixed deposit,. and in the 3rd recital it is said that Shirazi obtained an interim attachment against the money both of the fixed and of the current deposit belonging to defendant 2 above named. 3. Their Lordships only pause on that to call attention to the fact that in that security bond there is an express recital that this fixed deposit belonged to-Marret and then it recites, as has been said, the order of 27th February 1919,. which ordered that the attachment should continue until the trial, and then it recites an application that the attachment should be raised and the security bond should be executed in place and stead of the above named attachment. Then the operative part of the deed is that it: witnesseth that in pursuance of the said' order, dated the 3rd day of July 1919, and in consideration of the premises the company doth hereby covenant and agree with the said plaintiffs that the company will in the event of the-plaintiffs obtaining a decree against defendants-1 and 2 or either of them in the said C.S. No. 109 of 1919 on the file of the High Court at Madras in its ordinary original civil jurisdiction pay into Court to the credit of this suit-the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order having been made and the security bond having been given, the action proceeded. It should be stated that before the security bond was given it had been arranged between Marret and the export company that the export company should be put in a position to indemnify themselves out of moneys of Marret in Europe and the power-of-attorney given to the export company follows very closely the terms of the actual security bond. Eventually the case came to trial before Phillips, J. and a decision was given by him in which he made a decree in favour of plaintiff for ₹ 1,75,000 against the French company and he dismissed the suit against Marret. Also he made an order for costs against Marret which it is unnecessary to discuss further at the present moment, because that is not a question that arises now in this suit. Then, upon that decree being made the plaintiffs in the action took out a summons for payment into Court by the export company of the sums which were mentioned in their security bond. It was necessary to take out a summons because the Registrar of the Court came to the conclusion, and no doubt correctly, that he could not receive money in Court without an order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been an unfortunate decision of the learned Judge, because it seems quite plain to their Lordships that defendant 2, Mr. Marret, was entitled to appear and to oppose, and to successfully oppose, the request for payment out of this money to the plaintiffs. Indeed, on the face of the minute it might have been doubtful whether or not the Judge meant more than to say that the money was to be paid into Court and would be available for payment out if a subsequent order was made. But that does not appear to have been the construction put on the document and no such contention ever was raised in the Court below, because at p. 285 in the record, on the same day, the 22nd November, is found the formal order carrying into effect the minute of the Judge, and it recites that upon hearing the attorneys for the plaintiff and of vakil for defendants 1 and 2 and of attorneys for the garnishees, the South Indian Export Company, it is ordered: that the South Indian Export Company do pay into Court to the credit of the suit the sum of Its. 50,500 only; and (2) that upon payment into Court as aforesaid the Registrar of this Court do pay the said sum of ₹ 50,500 only to Messrs Mahemad Khale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any or whether they obtained a decree against Marret. That construction appears to be wrong, but the order in question is not of particular relevance otherwise, for on a further appeal to the Privy Council, which was heard in 1926, they allowed the plaintiff's appeal and restored the original order Phillips, J., and, therefore, of course no further question of restitution could arise. 10. Now comes the present suit, which was commenced in the interval and that present suit is commenced upon the footing that the security bond was drawn in a wrong form; that it did in fact involve an obligation upon the export company to make the money available for the plaintiffs whether they wanted to use it against the French company or against Marret and the relief claimed is a declaration that the bond was brought about by a mistake and a decree directing the rectification of the security bond and a repayment by Shirazi to Marret of ₹ 50,500, with interest; and then, alternatively, in the event of the bond not being rectified and the plaintiff not being able to recover his money against Shirazi-it claims against the solicitors the sums lost by way of damages for negligence. 11. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstituted for the attachment and in doing it they seem to have succeeded in procuring for Marret a recital that the deposit belonged to Marret, and that was clearly a considerable advantage. They ceased before any questions of the payment into Court arose to represent Marret, and, therefore, they are not responsible for any difficulty arising by reason of the order made for payment out. 14. Their Lordships must deal with the case as it has been framed, and as in fact they come to the conclusion that the plaintiff has entirely failed to establish any ground for the relief which he asks, they must advise that the suit be dismissed with costs to both respondents. 15. Their Lordships, however, cannot leave the case without saying that, on the facts of the case, it would appear that the plaintiff, Mr. Marret, had the misfortune, owing to a wrong construction being put upon this document, to have had his own money applied in payment of a debt due by somebody else. Whether he has any, and what, other relief against anybody in connexion with that unfortunate position their Lordships express no opinion; but while they feel bound to say this is an unfortunate result, yet it appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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