1. The appellant kept a sum of Rs. 2,880 in fixed deposit with the respondent Bank. By a notice of withdrawal served on the Bank, the deposit became repayable on 20th June 1932. The Bank having failed to pay the money he instituted a suit for the recovery of his deposit against the bank on 16th March 1933. An arrangement having been proposed between the Bank and its depositors, this Court, on its Original Side on the application of the Bank under Section 153, Companies Act, ordered a meeting of the depositors to be called on 9th May 1933. On 28th May 1933, the majority, in number representing three-fourths in value of the depositors, agreed to a scheme the terms of which, so far as they are relevant for the purposes of the present appeal, are as follows:
(1) That the depositors shall not be entitled to demand payment of their deposit money or interest at once and shall be paid only in terms of the scheme. (2) That notwithstanding any contract previously made with the depositors the Company will, during the continuance of this scheme, pay interest at the rate of 3 per cent per annum, with effect from 1st Baisakh 1339 B.S. on the amount of the principal as shown in the books of the Company as on 31st Chaitra 1338 B.S. irrespective of any classification of deposit. (3) That the scheme of arrangement will continue till the 30th Chaitra 1348 B.S., but the Board of Directors to be constituted under this scheme shall be competent, if they find that the scheme is not working satisfactorily to discontinue the same provided the majority of the depositors and shareholders, in a joint meeting specially convened for the purpose, sanction the discontinuance of the same....
2. On 27th June 1933 the appellant's suit for recovery of his money was decreed in terms of a compromise by which the appellant gave up his claim to the extent of Rs. 210 and the bank agreed to pay off the balance in 15 instalments payable from September 1933 to 1937. On 18th August 1933 this Court sanctioned the scheme. Two instalments were paid there after by the Bank in September and December 1933 in pursuance of the consent decree. The Bank having defaulted to pay the remaining instalments according to the terms of the consent decree, the appellant filed an application for execution of the consent decree on 8th June 1935. The Bank opposed the execution of the decree on the ground that the scheme as sanctioned by this Court was binding on the appellant. The Courts below have come to the conclusion that the appellant was one of the depositors who at a meeting of the depositors called by this Court under Section 153, Companies Act, agreed to the scheme set up by the bank and that a notice of the meeting was actually served on the appellant. They accordingly gave effect to the bank's objection to the execution of the decree and dismissed the appellant's application for execution. The decree-holder appeals to this Court.
3. The only point for determination in this appeal is whether the scheme which was sanctioned by this Court is binding on the appellant. The decision of this point will depend on the question whether the appellant comes under the word 'depositors' as mentioned in the scheme. The learned advocate appearing for the bank contends that in the absence of any special meaning attached to the word 'depositors' its dictionary meaning should be given to it and that as the word 'depositors' means persons whose names are in the deposit roll of the Bank, the appellant comes under this category irrespective of the question whether his deposit had become repayable and whether he had instituted a suit before the scheme was embarked upon. The learned advocate for the appellant, however, contends that the word 'depositors' does not mean those whose deposits had already matured and who had already incurred expenses by instituting suits for recovery of their deposits. It is argued by him that the appellant comes under a different category from depositors whose deposits have not yet matured, inasmuch as he had a vested cause of action before the scheme was embarked upon and that his rights are entirely dissimilar to the rights of those depositors whose deposits have not yet matured, inasmuch as the latter are deeply interested in opposing the payment by the bank to the appellant immediately. In view of the peculiar facts of this case, however, we express no opinion on the contention of the learned advocate for the appellant, namely whether a depositor ceases to be a depositor after his deposit has matured and after he has instituted a suit for recovery of the deposit. It is admitted by the learned advocate appearing for the Bank that in the petition which was filed by the Bank under Section 153 of the Act the depositors whose deposits had already matured and who had already instituted suits for recovery of the deposits were not specifically mentioned. The learned advocate, however, contends that the word 'depositors' in the petition under Section 153, and also in the preliminary order directing a meeting of the depositors to be held, must have included depositors whose money had become payable and who had already instituted suits for recovery of their deposits, inasmuch as in fact a notice of the meeting was served on the appellant. The finding of the trial Judge on this point is as follows:
As regards the service of notice of the depositors having deposit of more than Re. 1 in the Bank there is the testimony of the Officiating Secretary of the Bank to the effect that he got a list of such depositors prepared, had such list verified on comparison with the list of such depositors shown in the ledger book of the company, had notices issued on such depositors through post and got the certificates of posting from the postal authorities. No doubt the said certificates are not filed on the allegations that they with other material papers were filed before the High Court in connexion with the application for securing the final sanction to the scheme proposed by the authorities of the bank in consultation with the majority of the depositors in a meeting as directed by the High Court, but it is clear from the order of the latter Court that it was only satisfied as to the genuineness and validity of the service and ultimately sanctioned the scheme. No valid reason is forthcoming why the authorities of the Bank should bear any special grudge against the present decree-holder and studiously refrain from issuing a notice on him apprehending that a valid service of notice on him will raise insurmountable difficulties in the way of getting the proposed scheme ultimately sanctioned. I see no valid reason to disbelieve the Secretary who has deposed to the effect that he can say on oath that the name of not a single depositor was excluded from the list prepared by him for service of notices.
4. The appellant denied the service of notice and when the appellant appealed to the lower appellate Court he challenged this finding of the trial Judge in the grounds of appeal. The learned Additional District Judge who heard the appeal does not appear to have properly considered the question of the service of notice on the appellant. He disposed of the whole question in one single sentence by stating that he agrees with the conclusions of the trial Court on all the points. We are not satisfied from his judgment that as a final Court of fact he applied his mind properly to the evidence on this point and all the circumstances and probabilities bearing on this point. Instead of sending this case back to the lower appellate Court for a finding on this particular question we asked the learned advocates appearing for the parties in this case to place all the materials before us in order to enable us to come to a finding whether a notice was actually served upon the appellant. The Officiating Secretary in his examination-in-chief says:
We served notices through post and certificates of posting were obtained by us. The said certificates of posting were filed in the High Court in connexion with the case started there.
5. In his cross-examination he admitted that there was a list in the office of the Bank of the names of the depositors of the Bank on whom the notices were served. He also admits that only one list, and not separate lists of depositors, was made and that no separate list was made of those persons who had instituted suits against the Bank at that time. He then says:
As all the depositors were served with notices I say that the present depositor was also served with a notice.
6. The list of depositors on whom the notices were served is in the office of the Bank. That list was not produced in Court and no reason has been assigned as to why this list was not produced. The certificate of posting of the notice on the appellant was also not produced on the ground that it was filed in this Court when the scheme was sanctioned. If really a notice was actually issued on the appellant and a certificate of posting of notice on the appellant was filed in this Court when the scheme was sanctioned, one would naturally expect that certificate would be produced in this case specially when the appellant denied the issue of any such notice. On the materials which are on the record we are not prepared to hold that a notice of the meeting was also issued or served on the appellant in this case. The meaning of the word 'depositors' becomes clear when we come to the terms of the compromise by which the suit instituted by the appellant was decreed. By this compromise, as has been already pointed out, the appellant relinquished his claim to the extent of Rs. 210. The terms of this compromise also indicate that they were inconsistent with the terms of the scheme which had already been agreed upon at the meeting of the depositors. If really the Bank had applied for sanctioning a scheme for depositors including the appellant, we cannot understand why the Bank ignored the terms of the scheme altogether and settled the appellant's claim arising out of the deposit in contravention of the terms of the scheme.
7. Mr. Sen Gupta, appearing on behalf of the Bank, however, contended that the Bank acted in good faith at that time, because the scheme was not sanctioned by the Court and the Bank was not in a position to know whether it would be ultimately sanctioned by the Court. There is no evidence in support of this explanation. It was an explanation which was suggested by Mr. Sen Gupta in the course of his argument. But the difficulty in accepting this explanation is that if the bank knew that the scheme was binding on the appellant they could have easily asked the Court in which the suit was instituted or the appellant to agree to the stay of the suit till the scheme was sanctioned by the Court. There is no evidence to show that if such a course had been suggested by the Bank, the Court would not have stayed the hearing of the suit. Further, we find that after the scheme was sanctioned. by the Court the Bank paid two instalments in accordance with the terms of the consent decree and in contravention of the scheme. These facts clearly indicate that the bank all along knew that the scheme was not intended to be binding on the appellant and in fact did not bind the appellant. The word 'depositors' in the scheme which was agreed upon in this case and which was ultimately sanctioned by the Court cannot and in fact does not include the appellant before us.
8. The result therefore is that this appeal is allowed, the orders of the Courts below are set aside and the case is sent back to the first Court. The learned Subordinate Judge is directed to proceed with the execution according to law. The appellant will get his costs in this appeal; hearing-fee being assessed at one gold mohur.