( 1M )
HAKIM BHA1 v. ABDULLA.
294—0. X. Regatta, 18,207.
OivU Procedure Code, 88, 668 and 664—Sequestration before judgment—
Definite facta should be placed before Court—Action for damages for
obtaining sequestration mala fide.
The defendant obtained sequestration of the property of theplaintiff before judgment in suit No. 16,002 on an affidavit whichwas false to the knowledge of the defendant. The Court did notdirect the defendant to give security under section 654 of the CivilProcedure Code. The plaintiff in this action claimed damagesfor the expenses of getting the sequestration set aside and causingloss in his business and to his reputation.
Held, that an action for damages lay.
“ Plaintiff did not get any cost in this ^pect in the previousaction, and in a case of this sort, where the less has been caused bythe malicious act of the defendant, he is not restricted to the taxedcosts of the proceedings, but he is entitled the foil costs to whichhe was reasonably put.”
Abdul Asees Marikar v, Abdul Gaffoor1 commented upon.
rpHE facts appear from the judgment of the Acting Commissionerof Requests (JSlian Ondaatjie, Esq.):—
■ The plaintiff in this case is a man of Baluchistan, who arrived inCeylon about three and a half years ago for the purpose, as he says, ofearning money. He was at one time employed on an citato. At thebeginning of 1919 he started as a shopkeeper,. with a boutique or storeat the village of Udakumbura, which he stocked with doth. Goodswere supplied him by the defendant. Plaintiff paid Rs. 300 in part* payment of the goods, and gave defendant at the same time apromissory note for Rs. 250.
It is not necessary to go into die question of whether the promissorynote for Rs. 250 represented actual balance due to defendant, or whetherit was made for an amount to cover the cost of goods which defendantwas to, supply the plaintiff with on another occasion.
It is admitted that plaintiff made a payment of Rs. 25 on account inFebruary, 1919.
On March 6, 1919, plaintiff purchased at Colombo cloths for his shopto the value of Rs. 427*81, and on March 12,1919, he purchased clothsagain at Colombo to the value of Rs.. 234*52 (P 1 and P 2).
Esther at the end of April or the beginning of May, 1919, defendantwent from Kegalla to Udakumbura to plaintiff’s shop. Defendant sayshe did not meet plaintiff cm ibis occasion mid found his shop locked, andwas unable to find out where plaintiff had gone to, and suggested that he
1 fff.C.D. 76.
( 181 )
received information that plaintiff was about to leave Udakumbura.
Plaintiff, on the other hand, says that he was at Udakumbnra when J_'defendant went there, that he met defendant, and that defendant found Hakim Bhaifault with him for having purchased goods at Colombo for ready cash, t>. AbduUaand made use of defendant only when he wanted stook on credit.
I may say at once that I prefer to believe plaintiffs Btory on this point.
It is supported by evidence. But I should have believed him inpreference to defendant even without his (plaintiff's) witnesses.
Defendant, no doubt, asked for the balance due to him on this occasion.
He was not paid it by plaintiff.
Defendant returned to Kegalla and put his note in suit. He appliedat the same time for a mandate of sequestration of*plainti£Ps movableproperty. His application for the mandate was supported by theaffidavit of May 6, 1919 (P 4).
Paragraph 9 of the affidavit contains the following:—“ I aminformed, and verily believe, that the defendant, anticipating anaction at law by me, is making arrangements to dispose of the saidmovable property and preparing to leave Udakumbora with a viewto prevent my recovering the amount due to me.
“ The above facts come to my knowledge from inquiries I madefrom defendant’s neighbours.”
The application for a mandate was allowed by Court.
The defendant proceeded to Udakumbura in a motor car on May 8,
1919, and all plaintiffs stock in trade was seized by the Deputy Fiscalof Kegalla and conveyed to Kegalla.
The plaintiff on May 12, 1919, moved the Court (D 2) to release hisproperty from sequestration.
He tendered security in Rs. 250 ; this motion was consented to bythe other side, and allowed by Court. The evidence is that plaintiffsshop was closed for ten or twelve days in consequence of the sequestra-tion of his property.
This action is instituted to recover damages consequent on thissequestration, which plaintiff alleges was obtained by allegations whichthe defendant made falsely in his affidavit (P 4).
Rs. 50 as damages consequent on his shop having had to be closedfor tiie period that the goods were with the Fiscal.
Rs. 50 being the cost incurred in the steps he had to take to havehis goods released.
Rs. 200 for loss of reputation.
The first issue to be decided is whether the allegations in paragraph 9of the defendant's affidavit (P 4) are false and malicious.
I have already said that I prefer to believe plaintiff's version ofdefendant's visit to Udakumbura.
Plaintiff’s version is supported by witnesses whom there is no reasonto disbelieve, except it be said that, bring neighbours of plaintiff's, theywere found willing to come forward and give false evidence in supportof his case.
The defendant has called no evidence on his side. His story of whattook place on his visit to Udakumbura makes it reasonable to haveexpected him to have called witnesses in support of it.
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He says in Ids affidavit (B 4) that he xb worth about Bs. 20,000* Hewas content to rest his case on his own evidence alone. He filed a listand additional list of witnesses.
I can only infra that the witnesses named by him were unwilling tobear out the defendant's story.
The defendant, in his cross-examination admitted' that the plaintiffhad no means of knowing that he intended suing him on the promissorynote. This rather contradicts defendant’s affidavit (P 4), wherein he 'says that the defendant (i.e.9 the plaintiff in the present case), anticipat-ing an action at law, was making arrangements to dispose of his property.
I cannot resist the conclusion that the allegations in defendant'saffidavit (P 4) were made by him without the slighest foundationtherefor. In his eagerness to make sure his money, he did not hesitateto deceive the Court into believing that those facts were present whichwould entitle him to a mandate of sequestration before judgment.
Proctor for defendant argued that the mandate having been issuedby Court, no action would lie against his client. Also, that the allega-tions in the affidavit complained of, even if false, were privileged, beingevidence given in a Court of law.
1 do not think the decisions quoted support these contentions. Be-sides, this action is based not merely on damage consequent on injuryto plaintiff’s honour and reputation. It is also for actual loss sustainedby the plaintiff in releasing and recovering his goods, and for loss ofprofit during the time they were not available to him for sale. Torecover damage on this ground proof of malice was not necessary..But there is proof in this case of malice as well.
Plaintiff’s evidence is to the effect that he made a profit of Bs. 7 orBs. 8 per day. He claims Bs. 50 for loss of profit during the time hewas prevented from making sales. This is quite reasonable charge.Bs. 50 would also be about the amount he would have had to expend ingetting his property released from seizure, giving security in Bs. 250,and taking it back to Udakumbura.
1 would also allow damages on the score of loss of reputation.
It is true plaintiff is only a shopkeeper on a small scale, and carrieson business in an out-of-the-way village, but it cannot be that a good
' name and reputation are without value to him. He struck me as beinga straightforward man.'
I would give judgment for plaintiff for Bs. 200, with costs of suit.
Canakaratne, for the appellant.
P. Perera, for the respondent.
May 13, 1921. Shaw J.—
This was an action claiming damages in consequence of jthedefendant having in a previous suit maliciously obtained thesequestration of the property of the plaintiff, causing him to paythe expense of getting the sequestration set aside, and causing himloss in his business and to his reputation. It appears that thedefendant in. the present suit was plaintiff in case No. 10,002 of theCourt of Bequests of Kegalla, when he sued the present plaintiff ona promissory note. Immediately upon issuing his plaint in the case,
Hakim Bhaiv. Abdutfa
( 188 )
he filed an affidavit to the effect that the defendant in that case was 1981.making arrangements to dispose of his movable property and
preparing to leave his place of business, with a view to preventing '
the plaintiff in the suit recovering the amount due on the promissory Hakim Bhainote. He applied to the Court on this affidavit for a sequestration «• Abdullaof the goods of the defendant in the case, and the Commissionerissued the sequestration on his application. I would like, beforeproceeding further, to point out the Commissioner of BequestsBhould not have ordered a sequestration on the affidavit that wasbefore him, because it stated no definite facts which should havebeen sufficient to make the Commissioner issue a process of thisserious nature. Also, the Commissioner, when issuing sequestration,did not direct the plaintiff in the case to give security under section654 of the Code to pay all costs and damages that might be sustainedby reason of the sequestration, if it were proved to be improperlyissued. The sequestration was directed on May 6, and the plaintiffin that suit, under the order of sequestration, seized the stock intrade of the business carried on by the present plaintiff; Thepresent plaintiff, thereupon, took steps to have the sequestrationset aside, and it was so set aside on May 13. The present action isbrought to recover damages for the obtaining of that sequestrationby the defendant, the plaintiff in the previous suit. The Com-missioner has in this suit found that the application for the seques-tration was entirely unfounded, and that it was not bona fide, thatthe affidavit on which it was obtained was false, and I entirely agreewith his finding. It is perfectly clear that paragraph 9 of thedefendant’s affidavit on which he obtained the sequestration wasuntrue to his knowledge, and was made for the purpose of deceivingthe Court, and in fact deceived the Court and induced the'Com-missioner of Bequests to direct the seizure of the goods. TheCommissioner has given damages under three heads: Firstly, theactual loss occurred in consequence of the shop having been dosedfrom May 6 to May 13; secondly, the costs incurred by the presentplaintiff in getting his goods released from sequestration; andthirdly, for damages for loss of reputation as a trader. In all thesum of Bs. 200. The defendant’s counsel contends before me thatno action lies at all in respect of the injury proved, and also that thelosses under the first two of the heads of damage are not recoverablein an action of this nature. On. the first point I am referred to thecase of Abdul Asees Marikar v. Abdul Caffoor.1 In that case aCourt of two Judges held in a somewhat similar case that the actionwas not maintainable. It was an action to recover damages forimproperly obtaining an interim injunction in a case, and it was heldthat in that case no action lay. The Judges pointed out that thelaw provides the remedy for a person against whom an injunctionhas been improperly obtained. Under the Code there is a similar
» i s.c.D. re.
Hakim Bhaiv. AbduUa
( 184 )
provision to that which 1 have referred to in section 664 withreference to giving security, and the person against whom aninjunction is issued has his remedy or should have his remedy in lawagainst the security which is given by the person obtaining theinjunction, and that is his only remedy in an ordinary case. In thecase before the Court on that occasion it was held that the applicationwas in fact a bonafide one for the purpose of obtaining an injunction,and the Judge held that a person who bona fide puts the law inmotion is not responsible for damage that he may cause to hisopponent, and the only remedy he has is the remedy provided bylaw against the security which should be given on the applicationfor an injunction. But. Hutchinson C.J. went somewhat furtherin that case, and he suggested that it is possible that, even if therewere evidence of malice or maid fides on the part of the personobtaining the injunction, the actionmight fail, and he cited Addisonon Torts, page 31, to the effect that “ if one man prosecutes a civilsuit against another maliciously and without reasonable and probablecause, an action for damages is not maintainable against him/’This all depends on what is meant by the word “ malice/* If a mandoes a thing that he is lawfully entitled to do, although he does itwith 31-will, no action would lie. But as Wendt J. pointed out inthe same case, “ it might he different if the person obtaining aninjunction by dolus mains deceived the Court on a question of fact.”
I think that the distinction drawn by Wendt J. is fully justified,and applies to the present case. The application for the seques-tration was not bona fide, and the defendant obtained the order bydolus mains and by deceiving the Commissioner of Bequests by afalse statement in his affidavit. There appears to be nothing in thecase that I have referred to which obliges me to hold that in such acase an action would not lie, and that the plaintiff has no remedy inconsequence of the Commissioner of Bequests not having directedsecurity to be given at the time when the sequestration issued.That an action of this sort lias under our law appears by the state-ment made in De ViUiers on the Law of Injuries at page 75. It isalso shown by the case of Serajudeen v. AUagappan Chetty.1
With regard to damages, I see no reason why the plaintiff in thisaction should not recover the costs to which he was puts for the-purpose of getting the sequestration set aside. He did not get anycosts in this respect in the previous action, and in a case of this sort,where the loss has been caused by the malicious act of the defendant,he is not restricted to the taxed costs of the proceedings, but he isentitled to the full costs to which he was reasonably put. I am ofopinion also that he is entitled to recover damages for the loss ofreputation. He was a trader in a considerable way of business, andhis boutique was compulsorily closed in consequence of the seques-tration and the removal of his goods. It seems the natural and
i (J929) 21 N. L. R. 428.
probable result from snob a proceeding that he should suffer someloss in his reputation as a trader which he should be entitled torecover as being the natural consequence of the defendant’s wrongfulact. In the. ease that I have referred to in 21 N. L. R., DeSampayo J., at the end of his judgment on page 431, recognizesthis item of damage as being recoverable when he says “ the seizureof a trader’s stock in trade in execution has a serious effect on hiscredit and reputation, and I think the amount of damages orderedby the District Judge is not excessive.” In my opinion theamount of damages given by the Commissioner irrecoverable in law,and I dismiss the appeal, with costs.
1921.Shaw J,Hakim Bhai
HAKIM BHAI v. ABDULLA