Patna High Court
Central Bank Of India Ltd. vs Ramkinkar Banerjee And Ors. on 8 August, 1929
Equivalent citations: 123IND. CAS.388, AIR 1929 PATNA 751
JUDGMENT Jwala Prasad, J.
1. These applications are directed against the order of the Subordinate Judge of Dhanbad, dated 18th March 1929, passed in three Claim Cases Nos. 19, 20 and 23 of 1929 under Order XXI, Rule 58, Civil Procedure Code disallowing the claim of the petitioners to the property attached by the decree-holders.
2. The judgment debtors are Patel & Company, the proprietors whereof are A. K. Patel and his two sons G. A. Patel and N. A. Patel. They owned a colliery called Kusunda Colliery. This colliery was mortgaged by the judgment-debtors Patel & Company to the claimants, the Central Bank of India, Ltd., by an indenture, dated 16th November, 1923. It was a mortgage in the form of an English mortgage providing that in certain contingencies the mortgagees will be entitled to enter upon the mortgaged property. The claimants' case is that in pursuance of the contract they took possession of the colliery in question in July 1927, and have since then been working the colliery, selling coal and receiving prices. Patel & Company used to supply coal to the E. B Railway which used to pay the price thereof for the coal supplied to them. The claimants say that after taking possession of the colliery in July 1927, they retained the name of Patel & Company, and bills used to be made in the name of Patel & Company, but the price thereof used to be paid to the claimants by the said Railway Company as they were actually in possession of the colliery from July, 1927, when they took possession thereof under the terms of the mortgage. The decree-holders in the three cases attached two such bills (Exs. 3 and 4), the former dated 6th September, 1928, and the latter dated 2nd October, 1928, for Rs. 3,623-7-0. The attachment in Claim Case No. 23 which corresponds to Civil Revision No. 149 was made on 14th October, 1928.
3. The attachment in the other two cases namely, the Claim Case No. 19 of 1929 (corresponding to Civil Revision No. 150) and Claim Case No. 20 of 1929 (corresponding to Civil Revision No. 151) was made on 11th November, 1928. The claim was preferred by the petitioners in February 1929. The Court below while admitting that "the claimants are in possession of the colliery and are working it" has rejected their claim to the bills in question upon the ground that these bills were submitted by Patel & Company, and not by the claimants and that the coal is being supplied to the E. B. Railway under a contract entered into by Patel & Company on 26th February 1928, that is, subsequent to the date July 1927, when the claimants are said to have entered into possession of the said colliery.
4. Now, the bill (Ex.3) is drawn up in favour of Patel & Company by the manager of the Company A. B. Banerji and he made the following endorsement: "please pay to the Central Bank of India or order," and it was sent to the E. B. Railway where on its back an audit note has been endorsed on 15th September, 1928, and the Chief Auditor passed it putting his signature thereon on 21st September, 1928, and it was ready for payment when it was attached.
5. The bill (Ex. 4), dated 2nd October, 1909, has further an entry showing that it was made out in the name of: "The Central Bank of India, Limited mortgagee in possession of Patel's Kusunda Factory."
6. Though this bill is made by Mr. Banerji being in charge of the said colliery it i8 counter-signed by the agent for the Central Bank of India, Limited. On its back it bears the audit note of 10th November, 1928, and passed by the Chief Auditor who signed it on 7th December, 1928.
7. It is clear from the bills themselves and the endorsements thereon that the bill (Ex. 3) was endorsed to the claimants long before they were attached and the bill (Ex. 4) was actually made in favour of the claimants as mortgagees and endorsed and accepted by them and presented for payment to the E. B. Railway. Thus, whether these bills were made in the name of Patel & Company, or the original contract was in their names or that Mr. Banerji, who made these bills, was the servant of the Central Bank of India, Limited, or of Patel & Company, the property in the bills in question had passed to the claimants before they were attached. The claimants could receive the profits of the mortgaged property in terms of the mortgage-bond, which is filed in the record, from Patel & Company and they had a right to receive the contents of the bill in question which was endorsed in their favour before the attachments were made in execution of the decree in question. These bills were not the property of the judgment-debtors, Patel & Company, but were the property of the claimants at the time of attachment. The Court below has held that: "the claimants are in possession of the colliery and are working it," and the bills in question are the proceeds of the coal in the colliery. It follows, therefore, from the finding of the Court below that the bills and the contents thereof belong to the claimants, and Patel & Company the judgment-debtors ceased to have to do anything with the money in question and they did not belong to them at the date of attachment. Therefore, the order of the Court below is without jurisdiction. Rule 63, Order XXI relied upon by Mr. Sen in support of the contention that the order of the Subordinate Judge in question is final and cannot be set aside in civil revision has no application to the circumstances of this case where possession of the colliery has been held by the Subordinate Judge to be with the claimants and the bills belong to them as held above. The principle of the decision in the case of Nainu v. Bhupendra Naih Rakhit 60 Ind. Cas. 616 is applicable to this case.
8. The result is that the applications are allowed with costs : hearing fee one gold mohur in each.