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The Official Assignee of Madras Vs. S.R.M.M.R.M. Ramaswamy Chetty - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtChennai
Decided On
Judge
Reported in(1920)ILR43Mad747
AppellantThe Official Assignee of Madras
RespondentS.R.M.M.R.M. Ramaswamy Chetty
Cases Referred and Annamalai Chetti v. Annamalai Chetti
Excerpt:
presidency towns insolvency act (iii of 1909), section 115 - immunity of official assignee from stamp duty, whether applicable to his attorney--nattukottai chettis, whether bankers--loans advanced on or without deposit of goods--entry in same account--banker's lien on goods for general balance of accounts--indian contract act (ix of 1872), section 171. - - there is abundant evidence that in this particular case the garnishee did carry on banking business, and further than that it is perfectly general knowledge, and we have recognized it in vellayappa chettiar v. and we agreed with the learned judge that the official assignee in this case has failed to show any contract to the contrary......this case should not be entitled to a banker's lien. under section 171 of the indian contract act, bankers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; and we agreed with the learned judge that the official assignee in this case has failed to show any contract to the contrary. what he has shown is that various advances were made from time to time on the security of deposits of diamonds, and that the diamonds so deposited ware redeemed from time to time. but it also appears that loans were made without any deposit of diamonds at all which are included in the same account. the garnishee's affidavit also shows that all the diamonds were the subject of a sort of second pledge to another creditor. there.....
Judgment:

Wallis, C.J.

1. This is an appeal by the Official Assignee from the order of Coutts Trotter, J., on a garnishee summons. The first objection taken is that the appeal is filed out of time. The Official Assignee was represented by an attorney who claimed the same privileges as to stamp duty as the Official Assignee has by virtue of Section 115 of the Presidency Towns Insolvency Act. This was apparently disputed in the Insolvency office and a claim was made upon the Official Assignee's attorney for stamp duty for a copy of the order appealed against, and the attorney ultimately paid it to save time. But the question before us is whether the attorney as representing the Official Assignee has any stamp duty to pay. If not, the appeal is in time. As pointed out by Mr. A. Krishnaswami Ayyar, the wording of Section 115 is taken from the English Insolvency Act, and it was no doubt framed with reference to English practice. But at the same time it has to be applied to the practice obtaining in this Court. Now Section 115 says.

No stamp duty or fee shall be chargeable for any application made by the Official Assignee to the Court under this Act, or for the drawing and issuing of any order made by the Court on such application.

2. The application for a copy appears to be either an application made to the Court, or an application for the issue of an order made by the Court on his application, because the only method of issuing orders which is known to us here is the issue of a copy. Therefore we are of opinion that the appeal is within time.

3. The question in the appeal is whether the garnishee was entitled to a banker's lien in respect of advances made by him on various packets of diamonds deposited with him. The first question is whether he was a banker. Mr. A. Krishnaswami Ayyar has called our attention to an Irish case, In Re Shield's Estate (1901) 1 Ir. R., 172 , in which the question was whether the party there was a banker. In this case, we have evidence given that this garnishee who is a Nattukottai Chetti does banking business and money lending business, that he has customers who deposit money with him and who keep pass books and some with these pass books and draw money, that he pays interest on their deposits, and that he buys and sells hundis and lands money on securities. There is abundant evidence that in this particular case the garnishee did carry on banking business, and further than that it is perfectly general knowledge, and we have recognized it in Vellayappa Chettiar v. Unnamalai Achi (1917) 6 L.W., 687 and Annamalai Chetti v. Annamalai Chetti (1919) 10 L.W., 67 that these Nattukottai Chettis are really the Indian bankers of this part of the country. There is therefore no reason why the garnishee in this case should not be entitled to a banker's lien. Under Section 171 of the Indian Contract Act, bankers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; and we agreed with the learned Judge that the Official Assignee in this case has failed to show any contract to the contrary. What he has shown is that various advances were made from time to time on the security of deposits of diamonds, and that the diamonds so deposited ware redeemed from time to time. But it also appears that loans were made without any deposit of diamonds at all which are included in the same account. The garnishee's affidavit also shows that all the diamonds were the subject of a sort of second pledge to another creditor. There is no reason for differing from the learned Judge in his conclusion that a contract to the contrary has not bean proved.

4. In the result the appeal fails and is dismissed with coats.


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