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

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in59Ind.Cas.475
AppellantThe Official Assignee of Madras
RespondentS.R.M.M.R.M. Ramaswami Chetty
Cases Referred and Annamalai Chetti v. Annamalai Chetti
Excerpt:
.....it is perfectly general knowledge, and we have recognised it in vellayappa chettiar v. and we agree 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 were 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......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 agree 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 were 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:

1. This is an appeal by the Official Assignee from the order of Courts-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 Iyer, the wording of Section 115 is taken from the 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.' 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.

2. The question in the appeal is, whether the garnishee was entitled to a banker's lieu in respect of advance made by him on various packets of diamonds deposited with him. The first question is whether he was a banker. Mr. A. Krishnaswami Aiyar has called our attention to an Irish case Shield's Estate In re (1901) 1 Ir. Rep. 172, in which the question was whether the party there was a banker. In this case, we have evidence that this garnishee, who is a Nattukottai Chetty, does banking business and money lending business; that he has customers who deposit money with him and who keep pass books and some, with those pass books and draw money; that he pays interest on their deposits, and that he buys and sells hundies and lends 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 recognised it in Vellayappa Chettiar v. Unnamalai Achi 42 Ind. Cas 573 and Annamalai Chetti v. Annamalai Chetti 52 Ind. Gas. 456, that these Nattukottai Chetties 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 agree 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 were 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 been proved.

3. In the result, the appeal fails and is dismissed with costs.


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