HADJIAR v. ADAM LEBBE

035-NLR-NLR-V-43-HADJIAR-v.-ADAM-LEBBE.pdf


145
Hadjiar v. Adam Lebbe.
1942Present: Howard C.J. and Hearne J.
HADJIAR v. ADAM LEBBE.102—D. C. Batticaloa, 58.
Wrongful sequestration—.Action to recover damages—N'o actual sequestration ofgoods—Damage to reputation—Proof of malice and want of reasonableand probable cause.
An action to recover damages for wrongfully obtaining a mandate ofsequestration lies even where there was no actual sequestration of goods,provided the issue of the mandate of sequestration resulted in somedamage to reputation.
Such an action cannot be maintained without proof of malice and wantof reasonable and probable cause.
P
LAINTIFF sued the defendant to recover a sum of Rs. 595.70alleged to be due for goods sold and delivered. On the day the
action was filed plaintiff obtained a mandate of sequestration to seize thegoods of the defendants on the ground that he was fraudulently alienatingthem. A mandate of sequestration was issued to the Fiscal, whose officerreported that there were no goods in the defendant’s shop.
In his answer, the defendant admitted that he owed the plaintiff a sumof Rs. 389.10 only. In addition, the defendant set up a counter-claimfor damages consequent on the sequestration of his stock-in-trade by theplaintiff. The learned District Judge held that the grounds on whichthe mandate of sequestration had been obtained were false and that theplaintiff had acted maliciously. He further held that the defendant hadsuffered in credit as a result of the mandate and awarded him Rs. 750 asdamages.
H. V. Perera, K.C. (with him M. M. 1. Kariappqr). for plaintiff,appellant.—The counter-claim of the defendant-respondent is not main-tainable in law. It is based upon an allegation of fact that there was asequestration of the defendant’s goods before judgment. There was, infact, no sequestration of the defendant’s goods. The appellant onlyobtained a mandate of sequestration, which could not be executed. Themere obtaining of a mandate of sequestration gives rise to no cause ofaction for damages. (See Rama Ayyar v. Govinda Pillai ’.) The caseof Bosanquet & Co. v. Rahimatulla & Co.2 does not apply to the factof this case, and is clearly distinguishable for, in that case, there wasa sequestration of goods, which lasted an hour. In this case there wereno goods available for sequestration because the defendant had secretedthem.
It is also submitted that the learned Judge has misdirected himself andtaken an erroneous view of the law applicable to a claim of the defendant.The defendant complains of malicious legal proceedings of a civil nature.To succeed in such a claim, the defendant must among other essentialrequisites allege and prove that the prosecution (or civil proceeding) wasinstituted (3) maliciously and (4) without reasonable and probable cause.(Maasdorp, Vol. 3 p. 81 (1909 ed.) ). “As regards the third and fourth> /. L. B. 3!) Mad. 052.1 S3 Ar. L. H. 324.
146HEARNE J.—Hadjiar v. Adam Lebbe.
essentials, it is absolutely indispensable for the purposes of this actionthat the prosecution (or proceeding) shall have been instituted bothmaliciously and without reasonable and probable cause. If one or otherof these elements is lacking, the plaintiff will be entitled to no relief(Maasdorp, vol. III., p. 82 {1909 ed.) ). There is no proof that the appellantacted without reasonable and probable cause, nor is there a finding bythe Judge on this point.
C. V. Ranuivake. for defendant, respondent.—A mandate of seques-tration need not necessarily be executed fully or in part in order to foundan action for malicious sequestration of property. The test is whetherthere was publication of the fact that the defendant’s goods were to besequestered under a mandate of sequestration. It is sufficient if as aresult the defendant’s reputation suffered though no damage to propertyfollowed. Nothing can be more fraught with damage to the credit andreputation of a trader than the issue of a mandate of sequestration of hisstock-in-trade on the ground that he was fraudulently disposing of hisgoods to avoid payment of a debt. This aspect of the matter wasconsidered by Mr. Justice Garvin in the case of Bosanquet & Co. v. Raima-tulla & Co.' In the case of Rama Ayyar v. Govinda Pillai {supra) reliedon by the appellant there was no publication; all that was done therewas the application for a mandate of sequestration and the taking out ofa notice, the matter did not proceed further.
As regards damages, there is all the evidence on record necessary forholding that the plaintiff acted maliciously and without reasonable andprobable cause. All the circumstances justify the inference against theplaintiff and the learned District Judge has in fact held so. Even thoughthe defendant was financially embarrassed, still he was entitled to claimagainst the plaintiff. See Rajadurai et al. v. Thanapalasingham et al.”
Cur. adv. vult.
January 29, 1942. Hearne J.—
The facts involved in this appeal are these. On April 17, 1939, thedefendant charged the plaintiff with theft in the Magistrate’s Court andon April 28, 1939, the plaintiff filed a plaint against the defendant torecover a sum of Rs. 595.70 alleged to be due for goods sold and delivered.On the latter date the plaintiff and his Kanakapillai also swore affidavitsto the effect that the defendant had fraudulently alienated goods in hisshop “ by secreting the same in the houses of friends ” and that thereremained in his shop goods to the value of Rs. 200 only. A mandate ofsequestration was applied for, it was issued by the Court on May 24, 1939,and the Fiscal’s officer visited the defendant’s shop on the following day.According to the plaintiff’s evidence a boy in the shop opened the almirahsand it was found that there were no goods in them. The mandate wasreturned by the Fiscal’s officer who stated “ that no property had beenpointed out to him or surrendered ”. On a subsequent date the defendantmoved for the discharge of the mandate. It was held that the allegationsin the affidavits were false and the mandate was accordingly discharged.The plaintiff’s suit was before the Court in August, 1940. The defendantadmitted that he owed the 'plaintiff a sum of Rs. 389.10 only but theJudge held that the defence he had raised in respect of the balance of
1 {lU-IJ)-V. L. I!. 22 f.- (/.'/«•“! C. L. Re.c. 2:1:!.
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HEARNE J.—Hadjiar v. Adam Lebbe.
Rs. 206.60 was utterly false. In addition to resisting the plaintiff’sclaim in part the defendant set up a claim in reconvention. He statedthat in consequence of “ the sequestration of his stock in trade by thellaintiff ” he had suffered special damages amounting to Rs. 2,850. Thedamages claimed under one head (Rs. 2.600) were so remote that theycould not have been allowed in any event. There was no allegation inthe defendant’s pleading that the plaintiff had acted maliciously andwithout reasonable and probable cause. Two issues were framed inregard to the claim in reconvention. (1) Did the plaintiff obtain themandate of sequestration without reasonable and probable cause andwas it malicious in law? (2) If so, what damages is the defendantentitled to? An objection was properly taken by .Counsel for the plaintiffthat the defendant had not pleaded malice or want of reasonable andprobable cause and that special damages were claimed in the answer.The Judge allowed the issues and granted another date on terms. Atthe conclusion of the trial he held (1) that the grounds on which themandate had been obtained were false, (2) that the plaintiff had actedmaliciously in that he had been actuated by the filing of the criminalaction against him, and (3) on the evidence of two witnesses that theyhad stopped giving the defendant credit, that he had suffered “ in hiscredit ”. He held a sum of Rs. 750 to be a fair measure of damages.
Counsel for the plaintiff-appellant argued firstly that the claim inreconvention could not be maintained as no goods belonging to thedefendant were in fact seized and secondly, that the plaintiff’s evidencewas not disbelieved and there was no finding against him that he hadacted without reasonable and probable cause.
In connection with the first submission the case of Rama Ayyar v.Govinda Pillai et al.' was cited. That case is precisely the same as anaction of trespass to goods in England in which it is not necessary toprove malice, and it decided no more than that an action would not lie•for alleged wrongful attachment, if no attachment had in fact taken place.Similarly in England a person may take out a writ of execution but if hedoes not endorse on the writ a direction to the Sheriff to levy he is notliable in trespass. If he were, it would be a contradiction in terms.
The present case is a very diffenent one. It was based or rather, whenthe issues were framed it was based, on “ maliciously suing out process ”.Unlike trespass in which no harm is done till the writ of execution hasbeen acted upon, considerable harm may be done by the mere fact ofsetting a judicial officer in motion. The presence of the Fiscal in thedefendant’s shop on an order of Court was calculated to suggest to theworld that he was financially unsound. If the Fiscal’s mission had beenprocured maliciously and without reasonable and probable cause and hispresence had already adversely affected the defendant’s credit andreputation, can it be said that he cannot maintain an action because thenwere no goods to be seized?
In Bosanquet & Co. v. Rahimatulla & Co.", it was held that, when theFiscal’s officer entered the defendant’s premises and was engaged for SOSMtime in making a list of the property sequestered, there was "partialsequestration ” and “ publication of the fact that the defendants property
> (11)10) r. L. R. 30 Mad. Oil.’ (1031) 33 X. L. B, 334,
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HEARNE J.—Hadjiar v. Adam Lebbe.
was being sequestered under a writ of sequestration That case is notan authority for saying that no action would lie unless there was at least“ partial sequestration It was only decided on the basis that therewas “ partial sequestrationMy own view is not in conflict with 33N. L. R. 324 but goes beyond the necessity of that case. In my viewwhere a person has suffered a wrong, an injury to his reputation, and thewrong so suffered is the consequence of sequestration proceedings takenby another both maliciously and without reasonable and probable cause,the latter’s conduct is actionable even where, as in the present case, noactual sequestration was effected, partial or otherwise. In England, atany rate, the infliction of a wrong in that way when coupled with maliceand want of reasonable and probable cause gives right to an “ action onthe casq.” as distinct from an action in trespass. It is clear from thedecided cases, e.g., Quartz Hill Gold Mining Co. v. Eyrethat if civilproceedings are taken maliciously and without reasonable and probablecause, an action will lie in respect of them if they produce some damage ofwhich the law will take notice. In this case there was no damage toproperty, but, if there was damage to reputation, the other conditionsbeing fulfilled, the claim in reconvention would be maintainable.
In regard to his second submission Counsel for the appellant is, I think,on more substantial ground. The Judge appears to me to have mis-directed himself. It may well be that the plaintiff had an impropermotive in that he was getting even with defendant who had, as appearsfrom the result, falsely prosecuted him for theft and it may also be thatthe statements in the affidavits filed in Court were false. But that didnot, as the .Judge seemed to think, conclude the matter. It would haveconcluded the matter if the statements in the affidavits were found tohave been false to the knowledge of the plaintiff, but this was not so. found. In 3 Maasdorp 120 (4th ed.) it is stated that both malice andabsence of reasonable and probable cause must be proved, and thequestions the Judge should have considered and did not consider arewhether the plaintiff honestly believed, on reasonable grounds, that theinformation he had received that the defendant was removing his shopgoods to the houses of his friends was true? Whether an ordinary,prudent man, placed in his position and with the information which hadcome to him, would have acted as he did in order to safeguard his owninterests?
According to the defendant himself payment to the plaintiff fell due onApril 14, 1939, and he refused to pay him anything. On April 8, six dayspreviously, he had removed Rs. 905.71 worth of goods from his shop toKaravaku market (D 7). On April 9th according to him the plaintiffremoved Rs. 208.60 worth of goods (this is expressly disbelieved by theJudge) and thereafter he had goods worth Rs. 500 only. It is to be notedthat the defendant had attempted to account for the disappearance ofthe goods by an excuse that was false. When the plaintiff passed thedefendant’s shop at the end of April he noticed a great shortage of stockand in one month’s time, when the Fiscal arrived, it had vanished alto-gether. In the meantime the defendant was admittedly paying othercreditors and ignoring the plaintiff.
' 11 Q. B. D. 674 (C. A.).
The King v. Allis Sing}w.
149
Now, having regard to the progressive and admitted dwindling of thegoods in defendant’s shop from April 8th of which the plaintiff was aware,was it unreasonable on his part to believe, as he says he believed, theinformation he had received from his Kanakapillai even though, as hasbeen found, the information was incorrect. The Judge has taken theview that the defendant is a dishonest man. I do not gather from hisjudgment that he takes the same view of the plaintiff, and had headdressed his mind to all the essential aspects of the case, he would in allprobability have dismissed the claim in reconvention. In my opinion heshould, on the evidence, have done so.
The defendant is undeserving of sympathy. On his own admission hewas preferring certain favoured creditors of his, though it was not in theparticular way the affidavit of plaintiff’s Kanakapillai suggested. He.was not paying them in kind. But he admits he was removing his stockfrom his place of business, realizing it and paying selected creditors in-cash.
The appeal is allowed with costs and the claim in reconvention must bedismissed. It was agreed at the trial that the plaintiff would give thedefendant credit in a sum of Rs. 200 on account of costs in the sequestra-tion proceeds. The plaintiff is therefore entitled to judgment forRs. 595.70 less Rs. 200 or Rs. 395.70 and costs in the class to which theclaim of Rs. 595.70 belongs.
Howard C.J.—I agree.
Appeal allowed.