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F.H. Wilson, Official Assignee, High Court and anr. Vs. Nathmull - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1930Mad458; (1930)59MLJ501
AppellantF.H. Wilson, Official Assignee, High Court and anr.
RespondentNathmull
Cases Referred and Dakshina Ranjan Ghosh v. Omar Chand Oswal I.L.R.
Excerpt:
- - the whole of this part of nathmull's cross-examination shows that the plaintiff is not a man to be trusted, that certainly the business in the shop did not solely belong to him, that chunilal had a good deal of interest in the business, that either he and chunilal were partners or that the business wholly belonged to chunilal and that nathmull was lending his own name to shield him from creditors. , but there is a very strong suspicion that the plaintiff was colluding with chunilal in some manner for the purpose of shielding him from the creditors. there is a strong suspicion that the whole business is chunilal's, nathmull merely associating his name for the purpose of shielding him; , at page 811 support the same view :in the present case, the appellant's act in paying over the.....ramesam j.1. this appeal arises out of a suit, c.s. no. 543 of 1926, on the original side filed by the respondent nathmull originally against three defendants. later on the suit proceeded against defendants 1 and 3 only. a decree was given against those defendants by the learned trial judge, and defendants 1 and 3 are the appellants before us.2. the facts out of which the suit arose may be shortly stated as follows :-the 3rd defendant meghraj sowcar and his partner surajmull sowcar filed a suit against chunilal omaidmull sowcar and another for dissolution of partnership, for taking of accounts and for recovery of a certain sum of money--c.s. no. 261 of 1923. on the 17th of september the suit was decreed by our brother, waller, j. the plaintiffs applied on the 24th of september, 1924, for.....
Judgment:

Ramesam J.

1. This appeal arises out of a suit, C.S. No. 543 of 1926, on the Original Side filed by the respondent Nathmull originally against three defendants. Later on the suit proceeded against defendants 1 and 3 only. A decree was given against those defendants by the learned Trial Judge, and defendants 1 and 3 are the appellants before us.

2. The facts out of which the suit arose may be shortly stated as follows :-The 3rd defendant Meghraj Sowcar and his partner Surajmull Sowcar filed a suit against Chunilal Omaidmull Sowcar and another for dissolution of partnership, for taking of accounts and for recovery of a certain sum of money--C.S. No. 261 of 1923. On the 17th of September the suit was decreed by our brother, Waller, J. The plaintiffs applied on the 24th of September, 1924, for attachment of the defendants' interests in the business of Nathmull and Chunilal which had been carried on at No. 99, D'Mellows Road, Choolai, Madras and for the appointment of a Commissioner to take an inventory of articles, jewels and cloths, vessels, etc., pledged with the 1st defendant and to be found in the same premises and to initial the books of account. On the same day notice was ordered and one Mr. C. Devarajan was appointed Commissioner. On the 25th of September the defendants were ordered to admit the Commissioner for the purpose of initialling the accounts and taking an inventory. On the 14th of October notice to Nathmull and Chunilal was ordered. On the 17th Nathmull's counsel asked for time. Meanwhile on the 7th of October Chunilal was declared insolvent and on the 22nd of October the matter having become known to the appellants the application of 24th September was not pressed. The order on that day contained the note, 'The question of alleged partnership with Nathmull is left open.' In the affidavit accompanying the application of the 24th of September, 1924 it was stated that the business in Nos. 98 and 99, D'Mellows Road, was carried on under the name and style of Nathmull Chunilal. The petitioner's case was that Chunilal was the sole proprietor. The Commissioner made a report on the same date that when he went to the premises he found a piece of paper affixed on the door bearing an inscription.

To

Kasthurichand Nathmull Sowcar,

95, D'Mellows Road, Perambore Barracks.

3. He also states in his report that neither the defendant Chunilal nor Nathmull's brother Mothichand would give the keys of the premises and they also refused to produce the account books. After the adjudication of Chunilal his property vested in the Official Assignee and Meghraj moved the Official Assignee for taking steps to reduce to his possession the property of Chunilal. Accordingly on the 2nd of November the Official Assignee sent his searcher Kuppuswami with Meghraj to the premises in question. He addressed a letter Exhibit B to the insolvent Chunilal in which he requested the addressee to permit the searcher along with Meghraj to take an inventory of all the articles in the house. The letter then says :

Should you raise any objection whatsoever, he is authorised to bring in Police assistance.

4. On the 2nd of November the searcher and Meghraj went to the shop, Nos. 98 and 99, D'Mellows Road. The evidence shows that a policeman was also taken who was standing on the verandah. Meghraj also was standing aside. There was at first some oral protest but ultimately, probably, on account of the presence of the policeman, without any disturbance the account books in the-shop were removed and the shop was sealed. The list of account books is Exhibit B-l. It contains a note that Nathmull claimed these books. The Official Assignee immediately applied to the Court for an order to attach the goods in the premises on the ground that the business carried on in those premises was the business of the insolvent himself. That is, he practically adopted the case of Meghraj when he applied for attachment in C.S. No. 261 of 1923. Nathmull himself also applied by petition No. 355 of 1924 for a declaration that the goods belonged solely to him and not to the insolvent. The petition is Ex. I and the affidavit accompanying the said petition is Exhibit I-A. These two petitions came on for orders before Srinivasa Aiyangar, J. His judgment in the said matter is Exhibit I-B and the order is Exhibit B-3. As is seen from the above narration of facts the case of the Official Assignee before Srinivasa Aiyangar, J., was that the goods solely belonged to the insolvent and Nathmull's case was that the goods in the shop belonged solely to himself. There is, of course, an intermediate case possible that the shop belonged to a partnership consisting of Nathmull and Chunilal and not wholly to Nathmull, nor wholly to Chunilal. This case of partnership was suggested before Waller, J., as the note in the order, dated the 22nd October, 1910, shows,; but who alleged it is not clear. Before Srinivasa Aiyangar, J., the burden of proof was placed on the Official Assignee (vide note dated the 23rd of February, 1925) and the learned Judge in his judgment says that he was not considering any question as to whether Chunilal had any interest in the business short of total ownership. The only question he considered was whether Chunilal was the sole proprietor of the shop or not. On this matter he found against the Official Assignee; that is, he found that Chunilal was not the sole proprietor of the shop. This finding, of course, does not mean that Nathmull was the sole proprietor of the shop, for the finding that Chunilal was not the sole proprietor is consistent with Chunilal and Nathmull being partners in the shop. But this possible alternative case was not considered by the learned Judge. On his finding Chunilal was not the sole proprietor it followed that Nathmull had either a partial interest or sole proprietorship in the shop and, therefore, he directed that the goods should be delivered to Nathmull. The order Exhibit B-3 is worded as follows:

It is declared that the properties attached and sealed by the Official Assignee at premises Nos. 98 and 99, D'Mellows Road, Choolai, Madras, belong to the said Nathmull and not to the insolvent herein and it is ordered as follows :(i) that the application, taken out by the said Official Assignee do stand dismissed out of this Court ; . . . ' etc.

5. If this order is read solely by itself and without the light afforded by the judgment it certainly means that it was declared that the goods belonged solely to Nathmull; but it is equally clear from the judgment that the learned Judge never decided such a thing. If it is impossible to construe the decree consistently with the judgment, it would be a matter for the amendment of the decree and if it is a matter of any importance to set the matters right, we would adjourn the appeal to enable the appellants to apply for amendment of the decree, and, if the amendment is refused, to file an appeal against such order refusing amendment and such appeal and this appeal might be posted together. But it is possible to construe the decree in the light of the judgment and whenever it is possible to read the decree in two ways, one way consistent with the judgment and the other inconsistent with it, it is our duty to construe it in a way consistent with the judgment. Though read by itself the order implied that the goods solely belonged to Nathmull we think that the proper construction of the order is that the goods belonged at least to some extent if not wholly to Nathmull also but are not the sole property of the insolvent. This matter does not seem to be of great importance now, though before the learned Judge this was one of the points very much debated. The defendants sought to cross-examine the plaintiff for the purpose of showing that Nathmull and Chunilal were at least partners in the shop. But the learned Trial Judge holding that the order of Srinivasa Aiyangar, J., constituted the matter rest judicata disallowed such cross-examination and would not permit the defendants to adduce further evidence. It seems to us that in the way we construe the order in the light of the judgment the matter is not res judicata and that the evidence of the defendants to show that Nathmull and Chunilal were partners ought not to have been shut out. But even then it is doubtful whether the Official Assignee could have directly removed the goods from the shop or sealed the premises. The present action is filed for damages for trespass by stealing the premises and by the removal of the account books. Under the English law the bankruptcy of one of the partners seems to put an end to the partnership (vide Lindley, p. 800), but under the Indian law this does not seem to be the case. The bankruptcy affords a ground for the other partners to go to Court and obtain a dissolution, vide Section 254(2) of the Contract Act. Under Section 98 of the Presidency Towns Insolvency Act the Court may authorise the Official Assignee to continue or commence any suit or proceeding in his name and that of the insolvent's partner and any release by the partner is void. But it does not appear that the Official Assignee can take possession of the goods of the partnership without the consent of the other partner or partners in whose possession they may happen to be. Still one would have thought that if the insolvent was a partner in the shop the action of the Official Assignee and Meghraj had more justification than if the business belonged wholly to Nath-mull and Chunilal had no interest in it at all. Except from this point of view, namely whether the action of the Official Assignee may be more wrongful in one case than in another, the question of the interpretation of Srinivasa Aiyangar, J.'s order does not seem to be of any importance.

6. The appeal of the Official Assignee was argued on two grounds : (1) that notice under Section 80 of the Code of Civil Procedure was necessary before suing, and (2) that the plaintiff abandoned his claim for damages for what the Official Assignee did on the 3rd of November, 1924. To support this case of abandonment Exhibits II and II-A were relied on. Exhibit II was the petition and Exhibit II-A was an affidavit filed along with it. The petition was for leave to sue the Official Assignee for certain action taken by him on the 18th of May, 1926, the Official Assignee on that occasion being Mr. Albuquerque, the 2nd defendant in the present suit. This application was dismissed on the ground that no leave of the Court was necessary before the suit is filed, and in the affidavit it was stated in paragraph 9 referring to the incidents of the 3rd of November, 1924,

I was advised in the circumstances by my counsel not to press for damages and, therefore, I gave up my claim for damages.

7. The petition No. 355 of 1924 not only contained a prayer for declaration that the goods belonged to Nathmull but also a claim for damages. At the time of the argument the counsel thought that no claim for damages for trespass can be properly made before the Insolvency Court and therefore it was not pressed and we think this is all what was meant by paragraph 9 of the affidavit. Mr. Krishnaswami Aiyangar, the learned advocate for the appellant, relied on Section 86 of the Act and argued that the claim for damages can be made before the Insolvency Court and having been made and withdrawn the present suit does not lie. But it seems to us that Section 86 cannot relate to claim for damages. It relates only to the validity of any act or decision of the Official Assignee. On appeal under Section 86 the Court can set aside any such decision or act. The words 'as it thinks just' merely refer to any incidental or consequential order necessary for giving effect to the rest of the order but cannot refer to a claim for damages for wrongful trespass to goods. The Insolvency Court has no jurisdiction to entertain a claina for damages and when the plaintiff resolved not to press the claim before Srinivasa Aiyangar, J., he was not withdrawing any claim which was cognizable by the Insolvency Court ; nor can it be said that he gave up his claim for damages for all time. All that he meant by paragraph 9 was that he did not press his claim at that stage. This argument of the learned advocate for the appellant therefore fails.

8. We now come to the second ground, namely, that notice is necessary. A number of English cases were cited before us It seems to me that most of these cases are not of any help in the present case. Some of them related to the question whether a public officer was protected from being held responsible for his acts under the Public Authorities Protection Act or similar enactments and not to the question whether notice was necessary. One of the decisions, namely Selmes v. Judge (1871) L.R. 6 Q.B.C. 724 related to the question whether notice of action was necessary. The question there arose under 5 and 6 Wm. 4, c. SO, Section 109, which ran as follows:

No action or suit shall be commenced against any person for anything done in pursuance of, or under the authority of this Act, until twenty-one days' notice has been given thereof in writing. . .

9. There notice was necessary for a suit in respect of anything done 'in pursuance of or under the authority of this Act.' Still Blackburn, J., and two other Judges held that the defendant was entitled to notice.

10. Blackburn, J., said :

I agree that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that statute.

11. He then proceeds to observe that in that case there was nothing to show that the defendants when they made the rate in question knew that it was not allowed by the statute under which they were appointed. He then observed :

The only illegal act done by the defendants was to make an informal rate ; they proceeded to collect it, and received from the plaintiff the amount assessed upon him ; in these transactions it is clear that the defendants intended to act according to the duties of their office as surveyors, although they mistook the legal mode of carrying out their intention. Neither in Hermann v. Seneschal (1862) 13 C.B. (N.S.) 392 nor in Roberts v. Orchard (1863) 2 H. & C. 769 : 33 L.J. (Ex.) 65 was it decided that a defendant would not be entitled to notice of action, because he had been mistaken in the law. In Hardwick v. Moss (1861) 7 H. & N. 136 : 31 L.J. (Ex.) 207 surveyors had obstructed a highway without any statutory authority, but the Court of Exchequer held that as they intended to act pursuant to the Highway Act, they were entitled to notice of action.

12. This decision and the last decision quoted in it show that, even where public officers were not acting strictly according to the statute, provided they intended to act according to the duties of their office and provided they did not know that they were committing a mistake, they would be entitled to notice even if they were really acting somewhat illegally. It is unnecessary to discuss the question whether the Official Assignee knew that he had no power to seize the goods of a partnership when only one of the partners had become an insolvent; for it is clear that when the Official Assignee was moved in the matter he acted on the supposition that the goods in the shop belonged solely to Chunilal though the business was carried on in the name of Nathmull and Chunilal. In fact the case of Meghraj in C.S. No. 261 of 1923 and the Official Assignee at that time was that Nathmull was brought in merely as a cloak to shield Chunilal from the creditors. In the deposition of Nathmull before the Trial Judge it is admitted that Chunilal was carrying on business in the premises Nos. 98 and 99 up to the 15th of December, 1923, and it is only from the beginning of 1924 that Nathmull who was previously carrying on business at No. 95, D'Mellows Road, began to carry on business also at No. 99. The business at one place was looked after by Chunilal and at the other place by a partner named Rajmal. It is also admitted that in 1924 he got income-tax notice and that it was sent in the name of Nathmull Chunilal. Practically he never took any steps to get the notice corrected. It is also admitted that he sent certain jewels pledged with him by one Chengayya Naidu for sale and these jewels were sold under instructions from a firm called Nathmull Chunilal. He also admits that at the end of September, 1924, his business was being carried on in the name of Chunilal Nathmull. He says that he protested against his name being used but did not dispense with Chunilal's services. The whole of this part of Nathmull's cross-examination shows that the plaintiff is not a man to be trusted, that certainly the business in the shop did not solely belong to him, that Chunilal had a good deal of interest in the business, that either he and Chunilal were partners or that the business wholly belonged to Chunilal and that Nathmull was lending his own name to shield him from creditors. The latter alternative, it is true, was ruled out by the judgment of Srinivasa Aiyangar, J., but there is a very strong suspicion that the plaintiff was colluding with Chunilal in some manner for the purpose of shielding him from the creditors. To what extent the collusion has gone it is difficult to say. There is a strong suspicion that the whole business is Chunilal's, Nathmull merely associating his name for the purpose of shielding him; but even if this surmise is not correct, at least both were partners and Chunilal had some interest in the business and certainly the case of Nathmull that he is the sole proprietor is absolutely false. However, as I have already said, the Official Assignee thought that the goods belonged solely to Chunilal. When he wrote the letter Exhibit B and when he sent his searcher he simply intended to exercise the powers given to him under Section 58 of taking possession of the insolvent's properties. But it is said that a policeman was brought and this at least constituted a show of force. This may be so. It may be that because of the policeman the searcher got possession of the account books easily; but it is also clear that there was no disturbance and no force was used. When Nathmull was asked 'What do you mean by forcibly?' he said 'I mean that though I protested that the shop belonged to me and that the property in the shop was also mine, in spite of it they did not believe me and they sealed the shop'. This answer shows that no actual force was used. There might have been some oral protest. Now it is contended by Mr. Grant that the powers of the Official Assignee are merely those of receivers and receivers have no ppwer of dispossessing forcibly persons in possession, that if they find any resistance in taking possession, they ought to apply to the Court for a warrant under Section 59 of the Act and the Court may grant a warrant to any officer of the Court or a police officer and that it is not the business of the Official Assignee to seize the goods. It is true that when the Official Assignee apprehends any serious resistance he may seek the help of the Court under Section 59 and under that section the Court issues warrants to any officer of the Court or any police officer and not to the Official Assignee. But Section 59 does not involve any prohibition to the Official Assignee to obtain possession in any manner he likes. It is only an enabling section and not a prohibiting section. Nor does Clause 2 of Section 58 prohibit the Official Assignee from taking a police officer as a protection for himself in obtaining possession of insolvent's goods. I do not think it can be said that a receiver can never take a police officer with him in the course of his duties. The distinction drawn by Mr. Grant between taking possession of goods and seizing goods is rather subtle. In either case certainly the Official Assignee is 'taking possession. If he forcibly seizes the goods he may take the risk of getting into trouble and it may be prudent for him to obtain possession through Court under Section 59. But all this is different from saying that he can never seize the goods and he ought not to be accompanied by a policeman to overawe any resistance in obtaining possession. In the present case, no force was actually used. The presence of the policeman avoided any disturbance and the possession of the goods was obtained practically in a peaceful manner. I do not mean to say by this last observation that the Official Assignee is immune for liability for it turns out that he is not entitled to take possession of the goods found not to belong solely to Chunilal. It may, therefore, be that he is liable for some damages. But to say that he is liable is one matter and to say that he was not acting as Official Assignee is another. In my opinion, even if it turned out ultimately that he was not acting strictly legally in taking possession of the goods which he believed to belong to Chunilal but which did not really belong to him, he was certainly purporting to act as Official Assignee within the meaning of Section 80 of the Civil Procedure Code. I am unable to agree with the view taken by the learned Trial Judge that

it is only if the acts done by a public officer are acts which that public officer is in law entitled to do that he can be said to be acting or purporting to act as such public officer ; he cannot do or purport to do an act which the statute which casts upon him certain duties and defines such duties does not enable him in that capacity to do.

13. So far as the acts done in a public capacity are concerned, it may be that the acts should be strictly according to law. But as to acts purporting to be done in a judicial capacity to say that they should be strictly according to law is to make the word 'purporting' nugatory. It seems to me that the decision in Selmes v. Judge (1871) L.R. 6 Q.B.C. 724 and the cases cited in it are inconsistent with such a view. The word 'purporting' means intending to seem. This almost implies that, though it is a case of not being strictly according to law, one may still intend it to appear as if it is according to law. Vide Koti Reddi v. Subbiah I.L.R : (1918)34MLJ494 (F.B.) Abdul Rahim v. Abdul Rahman I.L.R.(1924) A. 884 and Dakshina Ranjan Ghosh v. Omar Chand Oswal I.L.R.(1923) C. 992 The first of these is a decision of a Full Bench. The Village Munsif's act in that case was apparently according to practice and was one which he would ordinarily do, but in that particular case it Avas wrongful for he paid the! balance of the sale proceeds to the owner though there was an attachment. He did it mala fide. The learned Judges held that the mala fides had nothing to do with the case and he was entitled to notice. Wallis, C.J., observed that the words 'purporting to be done' are wider than 'done or intended to be done'' under the provisions of this Act in Section 264 of the Public Health Act and that they also include 'acts intended to seem to be done in his official capacity.' This last observation shows that even where an act is not strictly according to law Section 80 may apply. The following observations of Sadasiva Aiyar, J., at page 811 support the same view :

In the present case, the appellant's act in paying over the balance of the revenue sale-proceeds to the defaulter was an act falling within the ordinary duties of his office as Village Munsif and he clearly professed to do it in execution of that duty and it would be quite reasonable on the part of an ordinary third person who becomes aware of the Village Munsif's act in so returning the balance to the defaulter to receive the impression that the act was done by the Village Munsif in his official capacity.

14. In the present case, it is the ordinary duty of the Official Assignee to take possession of the insolvent's goods. When he proceeds to the shop, removes the account books and seals the premises, it is quite reasonable on the part of an ordinary person to receive the impression that the act was done by the Official Assignee in his official capacity and the Official Assignee is himself professing to do it in the execution of his duties. Though the whole thing turns out to be wrongful because the goods did not solely belong to the insolvent, wherever the Official Assignee is honestly mistaken and takes goods not belonging to the insolvent in the belief that they belong to him, he is certainly acting in his official capacity. A simple case of that kind is Joosub Haji v. N.W. Kemp. I.L.R.(1902) B. 809 In that case the timber taken possession of belonged to a third person and not to the insolvent. It was held that notice was necessary. In Abdul Rahim v. Abdul Rahman (1924) L.R. 46 A. 884 a police officer entered a person's name in the history sheet and it was held that Section 80 applied. That was a case of an act which is in the ordinary duty of the official though in the particular case he did it with improper motive. In Dakshina Ranjan Ghosh v. Omar Chand Oswal I.L.R.(1923) C. 992 a police officer arrested a person whom he knew to be innocent. He also extorted some money. It was held that so far as the first act was concerned notice was necessary but not as to the second. I agree with these decisions. I admit that it is very difficult to describe in abstract language where exactly to draw the line. But I should say that in the practical application I should scarcely feel any difficulty. It is more a question of fact with reference to the surrounding circumstances and with reference to the ordinary duties of the official and not whether every part of his conduct is strictly according to law. In my opinion the Official Assignee was acting in his official capacity and he was entitled to notice under Section 80. The suit, so far as he is concerned, is not maintainable. The appeal must be allowed and the suit dismissed with costs throughout as against him.

15. We now come to the case of the 3rd defendant. It is true he is a creditor who was instructing the Official Assignee and moving him to take the account books. He certainly believed that the goods in the shop belonged to Chunilal, but this belief does not save him from liability if as a matter of fact be is guilty of any trespass. But the person who actually committed trespass is the searcher of the Official Assignee. The evidence shows that Meghraj merely stood by and took no part in the proceedings. Of course he pointed out the shop to the searcher leaving to the Official Assignee and his subordinates to carry on the proceeding whether it amounted to trespass or not. The person who actually trespassed is certainly the Official Assignee's assistant and he would be certainly formally liable, provided the action was brought in the proper form. But I do not see how Meghraj is liable for the trespass. Inducing a person to trespass is scarcely a ground of action. There is no analogy between such an act and abetment under the criminal law, nor does the principle of procuring a breach of contract extend to other torts. The result is that Meghraj cannot be held liable for moving the Official Assignee, himself not having committed any trespass to goods or premises. The appeal is, therefore, also allowed against him and the suit is dismissed with costs throughout. We certify for two counsels. It is agreed that, in appeal, the costs will be taken by the Official Assignee.

Cornish, J.

16. I have come to the same conclusion. In my opinion the forcible entry by the Official Assignee into the plaintiff's premises without a warrant under Section 59, Insolvency Act, was a tortious act. But I do not think it follows that, because the Insolvency Act does not sanction what the Official Assignee did, his act cannot be regarded as purporting to be done by him in his official capacity.

17. The principle to be derived from the reported cases on the subject appears to be, that if the act of the officer is one which was ostensibly done by him in the performance of his duties, the act will be deemed as purporting to be done by him in his official capacity, even though he has acted mala fide. This is the test applied by Sir John Wallis, C.J., in Koti Reddi v. Sub-biah : (1918)34MLJ494 in the case where a Village Munsif, knowing that the debtor's property had been attached by the plaintiff, fraudulently paid to the debtor the balance of moneys realized from the sale of his property under a distraint for revenue. At page 809 Sir John Wallis said :

In the present case there were facts justifying the Village Munsif in acting in his official capacity, and there was no occasion for him to resort to the defence that he bona fide, though erroneously, believed in the existence of such facts.

Similarly in Dakshina Ranjan Ghosh v. Omar Chand Oswal I.L.R.(1923) C. 992 where the question arose out of the act of a police officer in making a wrongful arrest, Sir L. Sanderson, C.J., holding that the suit for false imprisonment brought by the aggrieved party was not maintainable without the notice required by Section 80, Civil Procedure Code, observed (p. 999) :

On the facts of this case there is no doubt that the defendant was a public officer, and on the facts which I have already stated, in my opinion, there is equally no doubt that the act, namely, the arrest of the plaintiff, was an act purporting to be done by the defendant in his official capacity.

The same test was applied in Abdul Rahim v. Abdul Rahman I.L.R.(1924) A. 884 and in Joosub Haji v. N. W. Kemp I.L.R.(1902) B. 809 where it seems to have been assumed that the act of the Official Assignee in seizing somebody else's property in mistake for the insolvent's property was an act purporting to be done by him in his official capacity, for there was no argument on the point. On the other hand, this test would clearly not cover such acts as the act of the police officer in Narayan Hari v. Yeshwant Raoji and Dattatraya Ram-chandra v. Annappa Pandurang I.L.R.(1928) B. 832 (F.B.) in assaulting a person in his custody, the reason being that it cannot be regarded as coining within the functions of a public officer that he should commit an offence under the Penal Code.

18. Applying these considerations to the facts before us it appears to me that what was done by the Official Assignee falls within the test laid down in Koti Reddi v. Subbiah : (1918)34MLJ494 and Dakshina Ranjan Ghosh v. Omar Chand Oswal I.L.R.(1923) C. 992 . Admittedly the Official Assignee took away the account books and sealed up the shop of the plaintiff intending as Assignee of the insolvent Chunilal's estate to take possession of Chunilal's property. The plaint makes no suggestion to the contrary. It is equally indisputable that the act of the Official Assignee in writing the letter (Exhibit B) threatening' the insolvent that police assistance would be called in if the searcher was obstructed, and the calling in of a policeman by the searcher when admission was refused to him, had no other purpose than to ensure the searcher's performance of his duties without obstruction or molestation. I think it very probable that when the. Official Assignee wrote Exhibit B he did not appreciate that if the threat were put into force it might involve him in an action for trespass. However that may be, I do not see how the circumstances of a trespass resulting from what the Official Assignee did, can make his act any the less an act purporting to be done in his official capacity. For these reasons I think that the failure of the plaintiff to give the required notice is fatal to his suit and that his suit must be dismissed.

19. With regard to the case against the other defendant, Meghraj, I agree with what has been said by my learned brother in his judgment.


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