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TMI Blog1917 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... this supply, and in both of them the Nawab was either directly or indirectly interested. 2. For reasons which need not be discussed, the supply of granite and stone under these contracts was so unsatisfactory that the defendants' manager complained, and declared that he would be compelled to look elsewhere if he could not get delivery according to contract. 3. In the end an arrangement was made for cancellation of the two contracts and the release of all claims for their breach by the Nawab and those interested with him, and for the formation of a new partnership between the Nawab and the defendants for the quarrying and supply of the requisite granite and other stone. The defendants insisted that the Nawab should be a sleeping partner without any voice in the control and conduct of the business, so his advisers naturally demanded the insertion in the partnership instrument of a provision which would secure him against the risk of extravagant working. 4. To this the defendants assented, and a clause was inserted which ultimately became the 25th in the instrument as executed. It is this clause that has given rise to much of the present dispute. 5. In the instrument, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and may well attract the consequence of an adverse order as to costs, their Lordships cannot accede to the suggestion, somewhat faintly made, that the Nawab had by these charges forfeited his right to the protection of the Court if he otherwise had a good cause of action. 8. The matters now in contest are (1) whether the suit is premature; (2) what is the average rate of expense mentioned in Clause 25 of the partnership instrument; and (3) have there been extraordinary circumstances within the meaning of that clause ? 9. The Court of first instance decided in the Nawab's favour on the first and second of these points, and adversely to him on the third. The appellate Bench's decision was wholly adverse to the Nawab, but as the work on the docks had been completed before the hearing of the appeal, the Court directed that partnership accounts should be taken from the 11th ice March, 1908, up to the end of the construction work of the docks. 10. The Court of Appeal's decision that the Nawab when he filed his suit was not entitled to claim a dissolution was based on the continuance of the partnership involved in the terms of the partnership agreement and on Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be required. 15. Their Lordships therefore are unable to affirm the decision of the appellate Bench as to the competence of the suit. But this leaves open the question whether the Court's discretion should be exercised for or against the Nawab's claim. The appellate Bench decided adversely to it, and it was urged in argument against interference with this decision that it is opposed to sound practice for an appellate Court to substitute its discretion for that of the Court from which an appeal has been preferred. The justice of this argument is undoubted, but it was at least as relevant before the appellate Bench as it is before this Board. And yet the appellate Bench did not hesitate to express its readiness to substitute its discretion for that of the original Court, although in the view it took of the Court's jurisdiction the question could not arise. 16. In these circumstances the real question is whether there was or is any justification for questioning or disturbing the discretion exercised by the original Court when it passed the decree for dissolution in the Nawab's favour. It cannot be said that the Court acted capriciously or in disregard of any l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beg to point out the rate of]/7 rupees was arrived at on calculation on wrong basis, This has got to be revised on actual working before it can be acceded to. 23. Here it becomes necessary to refer to an admission made in the course of the suit and contained in a letter of the 30th July, 1913, written by the plaintiffs attorneys to the defend ants' solicitors. It is expressed to be in confirmation of what had passed between counsel for the parties at a meeting on the previous day and after stating that with a view to shortening proceedings certain charges were abandoned, it runs as follows:- We also give notice that for the above reasons and for the purposes of this suit only our client admits that at or about the time of signing the partnership agreement,it was agreed between the parties that the cost of working the quarries should not exceed the rate of 1/7 rupees (British currency) per cubic foot of stone, We think it right to add that this admission must not be taken as an admission that the said rate included only the items apparently contended for by the defendants as shown in the accounts submitted by them to our client. 24. This admission is of vital importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared by Mr. Gay, and of Stuart's evidence as to the use made of those figures in arriving at the rate on which he and Chukerbutty ultimately agreed, it is impossible that the rate of 1/7 rupees could have been for the three items of quarrying, dressing, and hauling only, and that it must also have included loading, depreciation, royalty, quarry expenses, and incidentals. 26. Their Lordships recognise the force of this criticism, and realise that the coincidence of the figures in Exh. 27 with this . contention is worthy of consideration. But at the same time they feel that it would be easy to attribute too much weight to it, and more particularly as Stuart's evidence was given in answer to interrogatories and cross-interrogatories administered on commission, so that there was no opportunity of giving the examination a direction which would have elucidated the full significance of answers which now remain obscure. In the circumstances it is at least as probable that the estimate of 1/7 rupees was limited to the three items as the result of a compact between Chukerbutty and Stuart reached by accommodation or possibly even in error, as that the agreed rate of 1/7 rupees was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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