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Re Ketokey Charan Banerji and ors. Vs. Srimati Sarat Kumari Debi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.999
AppellantRe Ketokey Charan Banerji and ors.
RespondentSrimati Sarat Kumari Debi
Cases ReferredJointee Chunder Sein v. Anundo Lall Doss
Excerpt:
costs awarded against nominal party put forward by real party, whether can be recovered from real party - inherent power to award costs--appellate insolvency jurisdiction of high court--civil procedure code (act v of 1908), section 151. - .....banerjee, apurna chunder banerjee. keshini charan banerjee, gryanada churn banerjee and nagendra nath banerjee, who, as i understand, it has been found, had certain interest in the firm. the business was carried on under the style of a.c. chatterjee & co. the first four of the above-mentioned persons were adjudicated insolvents upon the application of one sarat kumari debi who is the wife of one surendra nath banerjee, and it has been found that surendra nath banerjee and nagendra nath banerjee were joint in business. the basis of the application for the adjudication in insolvency was that certain shares in the business had been assigned to an individual whose name was dinonath mukerjee and the order of adjudication was made upon that allegation. after two or three investigations, it.....
Judgment:

Lancelot Sanderson, C.J.

1. In this case there was a firm consisting of certain persons Ketokey Charan Banerjee, Apurna Chunder Banerjee. Keshini Charan Banerjee, Gryanada Churn Banerjee and Nagendra Nath Banerjee, who, as I understand, it has been found, had certain interest in the firm. The business was carried on under the style of A.C. Chatterjee & Co. The first four of the above-mentioned persons were adjudicated insolvents upon the application of one Sarat Kumari Debi who is the wife of one Surendra Nath Banerjee, and it has been found that Surendra Nath Banerjee and Nagendra Nath Banerjee were joint in business. The basis of the application for the adjudication in insolvency was that certain shares in the business had been assigned to an individual whose name was Dinonath Mukerjee and the order of adjudication was made upon that allegation. After two or three investigations, it was found that the assignment to Dinonath was an assignment to him as a benamdar for Nagendra Nath Banerjee and Surendra Nath Banerjee. It has also been found by this Court that Sarat Kumari Debi was not a real creditor of the firm at all but that she was pat forward merely as a blind for Nagendra Nath Banerjee and Surendra Nath Banerjee, so that the real position was this that Nagendra Nath Banerjee and Surendra Nath Banerjee were in reality presenting the petition for the adjudication in insolvency based upon an assignment which was apparently made to a third person but was in reality made to themselves, and then having got that adjudication they were putting forward Sarat Kumari as a creditor whereas they were themselves in reality making a claim as creditors in the adjudication. It should further be added that upon the application of the petitioners, Greaves, J., by an order dated 4th August 1916 annulled the adjudication order. The Court of Appeal having held that the application of Sarat Kumari Debi was not the application of a bona fide creditor of the firm, and her claim having consequently been dismissed with costs, the petitioner now comes before the Court asking for an order that the real people behind Sarat Kumari Debi should be made to pay the costs of the proceedings connected with the claim of Sarat Kumari Debi as a creditor in the insolvency, and this application is based upon the allegation that the proceedings by Ragendra Nath Banerjee arid Surendra Nath Banerjee in the name of Sarat Kumari Debi were an abuse of the process of the Court.

2. The first point taken by the learned Counsel who showed cause against this Rule was that this Court had no jurisdiction to make the order. The Section of the Civil Procedure Code to which our attention was drawn was Section 151, which provides as follows: 'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

3. As regards the inherent power of the Court to deal with an abuse of the process of the Court there is authority to be found in the case of Jointee Chunder Sein v. Anundo Lall Doss 4 W.R.O.C. 1 at p. 4. I need not refer to the facts of that case, but it is an authority for saying that this Court has ample power to make an order with regard to the costs of the proceedings, where it is satisfied upon the facts of the case that the proceedings have been an abuse of the process of the Court: and in my judgment there is no doubt that on the facts of this case we have jurisdiction to make the order asked for if we think it proper so to do.

4. The next point raised is that in as much as Nagendra Nath Banerjee lived outside the jurisdiction of the original side of this Court and he did not carry on business within the limits of the original jurisdiction of this Court, we could not now make any order as against him, it being admitted that Surendra Nath Banerjee was within the jurisdiction of this Court. As regards Nagendra Nath Banerjee in my judgment the position is this: This Court has held that in reality he was one of the two persons who came to the Court for the purpose of making use of the process of the Court, and if we come to the conclusion on the facts of the case that not only did he make use of the process of the Court but also that he abused the process of the Court. I have no doubt that this Court has jurisdiction to make an order not only in his case but also in the case of Surendra Nath Banerjee.

5. The third point that was raised by the learned Counsel, Mr. Bose, was that on the facts of the case no order as to costs ought to be made. In my judgment this Rule should be made absolute. I think that I have already stated the facts sufficiently to show that from the beginning to the end the proceedings instituted by Nagendra Nath Banerjee and Surendra Nath Banerjee were an abuse of the process of the Court. In the first instance, as I have already said, they put forward an assignment which purported to be made to a third person as a basis of the insolvency proceedings, whereas it has been found as a fact that the assignment was in reality made to these two. They then put forward the lady Sarat Kumari Debi, who was the wife of Surendra Nath Banerjee, as a bona fide creditor, whereas it has been found as a fact that she was not a bona fide creditor; and for the purpose of my judgment and to make the statement of facts quite clear, I propose to read what was said by my learned brother Mr. Justice Mookerjee on the hearing of the appeal as follows: 'The essence of the matter is that her account opens with two sums, Rs. 2,487-8-6 and Rs. 14,233-13-6 respectively; in respect of one of these sums, the lady was a benamdar of her husband, while in respect of the other, she was a benamdar of her brother-in-law. True it is that there is no evidence of the source of the subsequent advances, but in the absence of tangible proof, we cannot assume that those sums belonged rather to her husband than to her brother-in-law. There is, further, a significant admission by Nagendra Nath Banerjee that he and his brother, Surendra Nath Banerjee, are joint, and this account may lend some support to a possible theory that both the brothers used the name of the respondent as their benamdar. But whatever the real state of affairs may be, one cardinal fact is established beyond controversy, namely, that the respondent is not a creditor of the insolvents. How much of the sum which stands in her name is her husband's money and how much thereof is her brother in-law's money, we do not know; but if she be not a creditor of the insolvents, as I hold she is not, the conclusion is irresistible that her name must be removed from the category of the creditors of the insolvents in these proceedings', I ought to have said that Sarat Kumari Debi is a purdanashin lady with, as I understand, no property of her own.

6. Now, under those circumstances I think in such proceedings as these, when they have failed in consequence of the decision of this Court, and when, if the costs are taxed, there are no means of getting them paid by Sarat Kumari Debi, she having no property, and when we find that the real people behind her were first of all her husband, and secondly, her brother-in-law, who have used her name in connection with these proceedings, it would be most unjust if we were prevented from making a proper order as to costs. In my judgment there has been an abuse of the process of the Court. Consequently the costs which have been taxed with respect to this matter, which I understand, amount to Rs. 1,872, should be recovered from Nagendra Nath Banerjee and Surendra Nath Banerjee.

7. There is one final point taken by the learned Counsel, and that was that his client was not present when the taxation of the costs took place. It is, however, admitted that notice was given to Sarat Kumar Debi of the fact that the taxation of the costs was going to take place, and if either of his clients had desired (she being the wife of one and the sister-in-law of the other, and the facts must have been known to them) to dispute any item of the taxation, they should have appeared through their attorney to investigate the costs. I do not think in this case any further taxation of costs ought to take place.

8. My learned brother Mr. Justice Mookerjee reminds me that there was one other point to which I have not referred, and that was this: It was contended by Mr. Bose that inasmuch as the appeal was heard by a Bench constituted by myself, Mr. Justice Woodroffe and Mr. Justice Mookerjee this matter could not be disposed of by the Bench constituted as at present by my learned brother Mr. Justice Mookerjee and myself. There is nothing in that contention for this reason. This is not a question of review of the judgment which was passed by us sitting together with Mr. Justice Woodroffe. This is a substantive application made to us to-day, and in my judgment there cannot be any doubt that the Bench as at present consitituted has full jurisdiction to deal with this matter. It would probably have been more convenient if the application could have been made to the Bench when Mr. Justice Woodroffe was sitting with us, and we could have been glad to have had his assistance but I have no doubt that the Bench as at present constituted has full jurisdiction to deal with the matter.

9. The Rule is made absolute with costs.

Mookerjee, J.

10. I agree.


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