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Jitendra Nath Mukherjee Vs. Commissioners of Baduria Municipality and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2878 of 1966
Reported inAIR1967Cal423
ActsCourt-fees Act, 1870 - Sections 7 and 8C; ;Bengal Municipal Act, 1932 - Section 103; ;Code of Criminal Procedure (CrPC) , 1898 - Section 144; ;Mulla's Transfer of Property Act; ;Transfer of Property Act, 1882 - Sections 53A and 105
AppellantJitendra Nath Mukherjee
RespondentCommissioners of Baduria Municipality and anr.
Appellant AdvocateChittatosh Mookerjee and ;Satyajit Banerjee, Advs.
Respondent AdvocateHari Narayan Mukherjee and ;Bijay Chandra Chowdhury, Advs.
DispositionPetition dismissed
Cases ReferredJ. and D. Eziekeil v. Annoda Charan Sen
- orderbijayesh mukherji, j.1. this is a rule i had issued on august 24, 1966, under section 115 of the procedure code, 5 of 1908, at the instance of the first defendant, jitendra nath mukherji, calling upon the plaintiff opposite party, the commissioners of baduria municipality, (simply 'the municipality' hereafter, for short), to show cause why an appellate order dated august 20, 1966, which confirmed the order dated july 25, 1966, of the trial court, appointing a receiver in a pending suit, should not be set aside.2. the suit by the municipality is a suit for, amongst others, for three declarations. one, the agreement executed by and between the petitioner jitendra, on one hand, and the then chairman of the municipality, nandalal sarkhel by name, on the other,--defendants both--,on april.....

Bijayesh Mukherji, J.

1. This is a rule I had issued on August 24, 1966, under Section 115 of the Procedure Code, 5 of 1908, at the instance of the first defendant, Jitendra Nath Mukherji, calling upon the plaintiff opposite party, the Commissioners of Baduria Municipality, (simply 'the municipality' hereafter, for short), to show cause why an appellate order dated August 20, 1966, which confirmed the order dated July 25, 1966, of the trial court, appointing a receiver in a pending suit, should not be set aside.

2. The suit by the municipality is a suit for, amongst others, for three declarations. One, the agreement executed by and between the petitioner Jitendra, on one hand, and the then chairman of the municipality, Nandalal Sarkhel by name, on the other,--defendants both--,on April 22, 1965, and put to registration on April 24, 1965, touching a hat of the municipality, is collusive, illegal, void etc. Two, on the foot of such an agreement, the petitioner Jitendra, the first defendant in the suit, has acquired no title to the hat in controversy. Three, the agreement aforesaid is not binding on the municipality.

3. Should the municipality get the first declaration, that the impugned agreement is void, the two other declarations follow as a matter of course. Leaving aside such prolixity, the other important reliefs, the municipality prays the court for, may be noticed. 'Confirm our possession of the disputed hat by collecting the tolls, as we are doing'-- is one such relief 'Restrain Jitendra by a permanent injunction from interfering with our possession'--is another relief.

4. The facts on which such reliefs are grounded need not be referred to further than as follows:

A. The hat in controversy yields an annual income of not less than Rs. 15,000. And the tolls of such a hat were farmed out to Jitendra for a 3-year term: 1372 to 1374 B. S., on a paltry consideration of Rs. 3,200 a year. [The year which runs now is 1373 B. S.]

B. The impugned agreement is over the signature of Sarkhel only, the then chairman, on behalf of the municipality, and that too without the common seal, infracting thereby the mandatory provisions of Section 103, Subsection (2), of the Bengal Municipal Act, 15 of 1932, by virtue of which the minimum requirement, amongst others, is twofold. One, every contract, involving a value which exceeds Rs. 500, shall be signed by at least two of the commissioners, one of whom shall be the chairman or vice-chairman. Two, it shall be sealed with the common seal of the municipality.

C. On April 14, 1966, the municipality, in its meeting, passed a resolution striking down the impugned agreement as void. On and from the day following, the municipality fixed the rate of tolls for the hat in controversy and started collecting the same, after Jitendra was apprised of the resolution dated April 14, 1966.

D. On June 10, 1966, at 7 p. m. or thereabouts, when the municipality's men were realizing the tolls, an ex parte and illegal order under Section 144 of the Code of Criminal Procedure, 5 of 1898, was served on them.

5. Hence the suit by the municipality on June 18, 1966.

6. That very day. die municipality applied under Order 40, Rule 1, of the Procedure Code for appointment of a receiver, reiterating the gist of some of the material averments in the plaint.

7. On July 5, 1966, Jitendra, the firstdefendant and now the petitioner before me,resisted such a prayer by a verified petition,emphasizing amongst other things the legalityand validity of the impugned agreement in thewake of a unanimous resolution passed by themunicipality in its meeting of April 17, 1965,and the futility of its resolution of April 14,1966, by which the agreement was in a manner rescinded.

8. No written statement has yet been filed.

9. The learned munsiff, 3rd court, Basirhat, by his order No. 9 dated July 25, 1966, allowed the municipality's application for appointment of a receiver and appointed Mr. Nityagopal Pal, the present chairman of the municipality, as the receiver. In so doing he held inter alia:

A. Breach of Section 103, Sub-section (2), of the Bengal Municipal Act, makes the impugned agreement prima facie not binding upon the municipality.

B. It is just and convenient that a receiver be appointed. Because, in absence of such appointment, Jitendra will go on realizing lolls, with the result that should the municipality win, as they have good grounds to do, they will be thrown into another suit with a view to recovering the moneys that Jitendra will realize meanwhile.

C. So that this may not happen, and Jitendra is not prejudiced either, in the event of his success, payment of Rs. 800 every quarter four such payments in a year will make Rs. 3,200: Just the annual rent stipulated in the agreement by the receiver to municipality is ordered. Is ordered too the deposit of the residue in court which will hold the amount deposited so. till the disposal of the suit.

10. Jitendra appealed. A learned additional District Judge who had heard the appeal Held as the munsiff did. He held further:

A. The legal form of the lease for a period exceeding a year failing, a monthly tenancy would not be created by delivery of possession and payment of rent, because infraction of Section 103, Sub-section (2), of the Bengal Municipal Act, would come full-circle back, preventing thereby the creation of even a monthly lease.

B. The impugned agreement being invalid ab initio, and not being bad for lack of registration simpllolter, Section 33A of the Transfer of Property Act, 4 of 1882, is out of Jitendra's way, for the simple reason that Section 53A cannot declare as valid that which a competent enactment has declared as invalid.

11. By his order dated August 20, 1966, the learned Judge, therefore, dismissed the appeal.

12. Hence this rule.

13. Mr. Chittatosh Mookerjee. appearing in support of the rule, addresses me on the following points:

1. The munsiff lacks pecuniary jurisdiction to try the suit.

2. Assuming he has the requisite jurisdiction, Section 103 of the Bengal Municipal Act, the learned Judges below have gone by, does not apply to the lease that is seen here,

3. Even if it does, Section 53A of the Transfer of Property Act, no less equitable estoppel, stands between the municipality and the reliefs they pray the court for.

4. A commissioner of the municipality, Md. Osmanali, figuring as an attesting witness to the impugned agreement, substantial compliance with Section 103, Sub-section (2), of the Bengal Municipal Act is there.

5. The municipality being the suing party, its chairman is a singularly unfit person to be appointed a receiver.

14. On no other point have I been addressed. Mr. Hari Narayan Mukherjee appears for the municipality opposite party. I notice his replies to the points listed above, as I examine them--which I now proceed to do.

15. To the question of pecuniary jurisdiction first. What the defendant petitioner Jitendra banks upon is the averment by the plaintiff municipality in the plaint's fourth paragraph, as also in the application dated June 13, 1966, under Order 40, Rule 1, that the hat's annual income is at the least, Rs. 15,000. If that be so, the contention concludes, fifteen times such amount will be Rs. 1.5,000 multiplied by 15--far, tar in excess of the munsiff's pecuniary jurisdiction which, at its highest, reaches Rs. 5,000 only.

16. That, in my judgment, is not the right way to look at the fiscal problem. The first thing to be looked into is the class which the suit in hand falls under. What the plaint is like has been reviewed in paragraph 2-4 ante. The plaint reveals that the suit is. in substance, a suit to obtain a declaratory decree where consequential relief has been prayed. And what is the consequential relief the plaintiff municipality prays the court for? A permanent injunction restraining the defendant Jitendra from interfering with the municipality's possession of the hat in controversy. So soon as that is said the suit falls under Section 7(iv)(c) of the Court-fees Act 7 of 1870. And the amount of fees shall be computed according to the amount at which the relief sought is valued in the plaint Here the relief has been valued in the plaint at Rs. 100.

17. But has not confirmation of possession, submits Mr. Chittatosh Mookerjee, been prayed for by the plaintiff municipality? Yes; that has been prayed for: see paragraph 3 ante. But that is redundant a prayer. Once the plaintiff municipality gets the declarations and the permanent injunction prayed for, the relief of confirmation of possession follows as a matter of course, prayer or no prayer to that end. So, excise that relief, and still if the suit succeeds, the plaintiff municipality gets all it wants.

18 . That a court is not a slave to the form of a plaint, but goes by its substance, is now the definite, clear and settled law. Take the Privy Council decision in Phul Kumari v. Ghanashyam Misra, (1908) 35 Ind App 22: ILR 35 Cal 202 (PC), where a simple suit by an unsuccessful claimant under what is now Order 21, Rule 63, of the Procedure Code was padded by ever so many reliefs: an injunction restraining execution, a prayer for release of the property from attachment etc. But, in essence, it was a suit under Order 21, Rule 63, to set aside a summary decision of the civil court. Therefore, the paddings were treated as surplusage and the suit, it was held, was governed by Schedule II, Article 17(i) of the Court-fees Act and leviable with a fixed court-fee prescribed therein.

19. Just so in the case in hand. In essence, it is a suit falling under Section 7(iv)(c) ibid, and leviable with Court-tees thereunder. In the circumstances, I am unable to treat the relief for confirmation of possession--a surplusage--as a relief for recovery of possession, as Mr. Chittatosh Mookeriee wants me to do, relying on the unreported decision of P. B. Mukharji J., in Ganesh Chandra Rajak v. Dhananati Seal, Civil Revn. Case No. 1880 of 1964, D/-3-3-1965 (Cal), the reported decision of James J., in Dwarka Prosad v. Krishna Chandra AIR 1939 Pat 254, and cases of that class. The doctrine of surplusage and essence, by which I am going, did not arise for their Lordships' consideration. And therein lies the distinction which distinguishes the cases from the one in hand. More, James J., followed, as indeed he was bound to, an earlier decision of a division of his Court. And his Lordship laid down the rule as under :--

'Where the suit (lor setting aside a decree) is instituted before execution, the value of the suit is the value of the decree. Where the suit is instituted after property has passed by execution proceedings, the value of the suit is the value of the property.'

But, with all respect, this is not interpreting law. This is legislating. This is making a statutory instrument. A statutory instrument, however, for governing a litigation to be governed by Section 7(iv)(c) of the Court-Fees Act (as here), has to be made by the High Court in a manner laid down by Section 9 of the Suits Valuation Act. 7 of 1887, not by interpretation while deciding cases. Such instrument has yet to be made by many of the High Courts including the one which I have the honour to serve. Precisely for this, a Full Bench of five judges of this Court, while conceding the Court's power to revise the plaintiff's valuation in suits of this class, lamented the absence of a standard on which the Court could act and expressed its helplessness in the matter. Narayangunj Central Co-operative Sale and Supply Society Ltd. v. Mafizuddin Ahmed : AIR1934Cal448 . If James J.'s rule is a good rule to go by, Maulvi Mafizuddin Ahmed, in the aforesaid Full Bench case, could not have escaped having valued his suit at Rs. 49 and paid Court-fees accordingly, though his was a suit to set aside an award (virtually a decree) to the time of Rs. 11,400, and that too after execution was levied and resisted by him with little success up to the High Court: Mafizuddin Ahmed v. Narayanganj Central Co-operative Sale and Supply Society, Ltd., 36 Cal WN 121: (AIR 1933 Cal 167). So James J.'s decision, Mr. Chittatosh Mokerjee relies upon, must be considered to have been wrongly decided, if I may say so, with respect, at any rate, so far this Court is concerned.

20. After all, it is a fiscal statute I am interpreting. So, a suit must be brought clearly within the language of the enactment, before you can decide what fiscal levy is to be imposed. The plaint before me contains not a word about recovery of possession. Still I shall say: 'it does not matter, the relief for confirmation of possession is there, and that is as good as recovery of possession, bringing the plaint within Section 7(v) of the Court-fees Act'. With respect, that would be legislating again, not interpreting the law--which 'only becomes me. And the relief being a surplusage is there too: Paragraph 16 et seq. ante. I, therefore, reiterate my conclusion that the suit in hand falls under Section 7(iv)(c) of the Court-fees Act. the more so, as

'The question of jurisdiction must be decided upon the allegations in the pleadings'

just the law laid down by Harries C. J., presiding over a division of this Court in Dominion of India v. Jagadish Prosad Pannalal, 84 Cal LJ 175: (AIR 1949 Cal 622).

21. Mr. Chittatosh Mookerjee then contends: 'Section 8C of the Court-fees Act is thert and it is for the trial court to determine the correct valuation which is certainly not Rs. 100, as set out in the plaint--a plaint which puts annual income to be Rs. 15,000. What does it matter, therefore, that the suit in hand falls under Section 7(iv)(c)?'

22. I see more than one fallacy in such a contention. First: the subject-matter in dispute is not necessary the subject-matter of the suit. See Biraja Charan Nanda v. Sailaja Charan Nanda : AIR1939Cal155 . The subject-matter of the suit in hand is no doubt the hat in controversy, fetching, as it is said Rs. 15,000- a year. But the subject-matter in dispute is the suing municipality's possession being clouded by an ex parte order of a magistrate. In the event of the municipality's success, the cloud is removed. That is all. What is the value of the cloud? Certainly not the value of the hat. Therefore, you cannot equate the one with the other. Second: true it is that benefit to the plaintiff is a material consideration in assessment of court-fees, But no less material a consideration is: 'Look to the relief only, not to the consequences of the relief.' If you look at the litigation so, all you see is the relief in the shape of the declaration voiding the impugned agreement followed by an injunction. Benefit? It is the consequence of the relief, not the relief itself. Were that not so, if I sue a troubleshooter for a declaration of my title, undisputed by all except he, and indisputable too, to my own house, say, worth a lakh of rupees, and restraining him from interfering with my possession, going by the benefit test, I shall have to pay ad valorem court-fees on a lakh of rupees A clear reductio ad absurdum. It is why I say look by all means to the relief, not to the consequences of the relief.' The relief sought is one thing, and the value of the property another. See Amrita Lal Chatterjee's case infra. Third: Rs. 15,000 furnishing an objective standard? To contend so is to go back upon the Full Bench decision just noticed. The award of Rs. 11,400, hanging against Mafizuddin: just the award he was up against, failed to furnish the objective standard. Thus a specified sum as that, awarded by an award, failed to do. And Rs. 15,000 is a nebulous figure in spite of its being Rs. 15,000. Apparently put in by guess by the municipality, as the language used [Anyuna Panero Hajar] goes to show, and stigmatised by Jitendra as false in his application dated July 18, 1966, what else can it be? Indeed what the firm sum will be is anybody's guess. In sum, where a sum fixed by an award cannot serve as an objective standard, a 'liquid' figure of Rs. 15,000 must fail a fortiori. Fourth: Rs. 100 smacks of being arbitraril But there being no standard yet, sanctioned by law, Section 9 of the Suits Valuation Act, for litigations of this class, what the court does will become no less arbitrary. Arbitrariness of a judge is no solution for the arbitrariness of a party I can do no better here than quote from Mukherji, J. in Panna Lal Lala v. Abdul Gani : AIR1930Cal473 :

'If the Plaintiffs valuation of the relief may at times appear arbitrary or too low, the assessment of the real value is often no less arbitrary and almost an impossibility.'

Fifth: much too much cannot be made of Section 8C which, as pointed out in a recent decision by a division of this court: Amritlal Chatterjee v. Hiralal Chatterjee, (1966) 70 Cal WN 857, has been brought in the statute book 'out of abundant caution.' '8C' or no '8C', the court's power to correct the wrong valuation is always there. The difficulty is about the exercise of such power, in absence of a standard laid down by law.

23. In vain does Mr. Cliittatosh Mookerjee refer me to Boidya Nalh Adya v. Makhan Lal Adya, (1890) ILR 17 Cal 680. where Petheram C. J. and Banerjee J. held that, by enacting Section 7(iv) of the Court-fees Act, the Legislature never intended to leave it to the plaintiff to choose the court in which he should bring his suit and this is the observation Mr. Mookerjee relies upon. In Musst. Umatul Batul v. Musst. Nanji Koer, (1907) 11 Cal WN 705, Mookerjee J. considered the view 'unquestionably well founded' and 'supported by the history of the section.' The Full Bench case, I have gone by, reviews these decisions, and says as much, but adds:

'..... .upon the existing stale of things it is not always possible for the Court to exercise this power of correcting the valuation in a case falling under the sub-section', that is to say, Sub-section (4) of Section 7 of the Court-fees Act.

With respect, I say just that. How will you value the cloud removed, in the event of the plaintiff municipality's success? [See paragraph 22 ante.]

24. All the contentions urged upon me by Mr. Chittatosh Mookerjee to negate the pecuniary jurisdiction of the munsiff, therefore fail. At the same time, Mr. Mookerjee has a point when he makes a grievance or the fact that the learned munsiff postponed the consideration of the question nf pecuniary jurisdiction till the filing of the written statement and challenging this vide orders numbering 7 and 14 dated July 18 and August 5, 1966, respectively. Fortunately, I find the pecuniary jurisdiction of the munsiff. Otherwise so much labour expanded in hearing the receiver matter would have gone fo waste. But, on things as they stand now, this has little importance. And I leave it at that.

25. I owe it to Mr. Harinarayan Mookerjee to record that he wants me to classify the suit in hand as one under Section 7(iv)(c) of the Court-fees Act, as inserted by Section 3 of the Court-fees (West Bengal Amendment) Act, 18 of 1963, come into force on May 3, 1963. I am unable to do so. I see no trespasser nor a licensee here. Jitendra is not either. So, Section 7(vA) dealing with suits for recovery of possession from such ones, can do no duty here.

26. In view of all that goes before, I hold, the munsiff has the pecuniary jurisdiction to try the suit in hand, rejecting Mr. Chittatosh Mookerjee's contention to the contrary.

27. Now to the second point on which this revisional case has been opened: See paragraph 13 ante. No doubt, the burden of Section 103, Bengal Municipal Act, is contract. But it is too nice a refinement to say, as Mr. Chittatosh Mookerjee says, that a lease is not a contract and as such keeps Section 103 ibid. away Say, if you will, a lease is a contract plus something more: something more than a contract. But a contract it is all the same. When executed, it passes from the lomain of contract into that of conveyance, a lease being a species of conveyance too. But the domain of conveyance is included in the domain of contract. To quote from Mulla's Transfer of Property Act. 5th edition, at page 637:

'The relation of lessor and lessee is one of contract, and in Bacon's Abridgement a lease is defined as 'a contract between the lessor and the lessee for the possession and profits of land, etc. on the one side and recompense by rent or other consideration on the other.' Section 105 of the Transfer of Property Act 4 of 1882, defining lease, is not so worded. But the definition is such that it is only a species of the genus: contract. This point, therefore, fails too.

28. I now reach the third point listed in paragraph 13 ante. Developing this point, Mr. Chittatosh Mookerjee argues:

Even assuming that Section 103 of the Bengal Municipal Act applies, four ingredients are to be there. One, a resolution by the municipality. Two, a document: an instrument of transfer. Three, execution of the same. Four, affixation of the requisite seal. What you miss here are ingredients: Three and Four: as is the challenge made by the municipality. So whatr Mine is an inchoate instrument. 1 have taken possession. I have paid rents. Section 53A, Transfer of Property Act. no less equitable estoppel affords me a shield. Ergo, the municipality has no prima facie title to the light claimed, that making the appointment of a receiver out of the question.

29. Such an argument breaks down, in my judgment, on the falsity of its premiss. The premiss is that there is an instrument of transfer: just as in the second alternative in the 4th paragraph of Section 53A.

'Or where there is an instrument of transfer.. . . .the transfer has not been completed in the manner prescribed therefor by the law for the time being in force.....'

words upon which Mr. Chittatosh Mookerjee strongly relies. But where is the instrument of transfer? The one I see before me--the one the plaint refers to as the agreement dated April 22, 1965,--cannot be elevated to that height. It cannot be, because of the infraction of the mandatory provisions of Section 103 of the Bengal Municipal Act. I do not rely merely on the auxiliary verb shall in Sub-section (2) thereof. Because that simpliciter is not conclusive: Collector of Monghyr v. Keshav Prasad, : [1963]1SCR98 . I rely on a lot more. The provision in Sub-section (2) that every contract, exceeding Rs. 500,

'shall be in writing, and signed by at least two of the Commissioners, one of whom shall be the Chairman or Vice-Chairman, and shall be sealed with the common seal of the Commissioners.'

is supplemented by that which follows in Subsection (3):

'Unless so executed such contract shall not be binding on the Commissioners.'

Thus consequences tor non-compliance with Sub-section (2) are provided for. Which plainly means: if you enter into a contract with the municipality in violation of Sub-section (2), it is no contract; it is no instrument of transfer, as here; it is waste paper. Hence I dwell on the falsity of the premiss and find no instrument of transfer.

30. Laying down apart of the consequences of Sub-section (2)'s breach, there is a far more important principle behind such law; the principle of public interest. Take Section 175, Sub-section (3), of the Government of India Act, 1935. No consequences are laid down there for its non-compliance. Still its provision was considered as mandatory on the paramount consideration of public interest, the principle being that the State should not be liable for unauthorised contracts: Bbikraj Jaipuria v. Union of India, : [1962]2SCR880 , to cite but one authority only.

31. Just so here. The Legislature has made these salutary provisions for the protection of the rate-payers of the municipality by requiring the strict observance of the solemnities and formalities prescribed, so that no shady deal there fan be. To hold otherwise, by making light of such requirements, will virtually be repealing Section 103 of the Bengal Municipal Act and denying the rate-payers the protection which the Legislature intended to secure for them. I have often been reminded of the unanimous resolution passed by the municipality in its meeting on April 11, 1965. That in my judgment, is all the more a reason why all the solemnities and formalities prescribed by Sub-section (2) should have been scrupulously observed. How is it then that the only signature of the executant, on behalf of the municipality, is that of the then chairman Nandlal Sarknel? How is it then Commissioner Md. Osman All signs as an attesting witness only, and not as an executant? How is it again that the common seal, three paradigms of which ara on record, is not pressed into service? Is pressed into service instead, a diminutive seal, having little in common with the common seal. Prima facie, and only prima facie, all this has a bad look.

32. Upon the whole of the limited materials now available, the finding, for the limited purpose of this interlocutory matter (appointment of a receiver), must, therefore, be that there is no instrument of transfer. Thus, when no instrument of transfer is there, no question can arise of the transfer having not been completed in the manner prescribed therefor by law. I see no inchoate document. I see instead a trash which masquerades as a document.

33. Once the conclusion is so, on the limited materials and for the limited purpose,--and the conclusion cannot but be so--, neither Section 53A nor equitable estoppel can show its head in order to come to the succour of the petitioner Jitendra in this interlocutory matter.

34. In view of the accepted principles I go by, it is hardly necessary for me to review at length the authorities cited by Mr. Chittatosh Mookerjee. But, out of deference to his able arguments, noticed they must be, very briefly though. Maneklal Mansukbhai v. Hormusji Jamshedji Ginwalla and Sons, : [1950]1SCR75 , lays down that Section 53A does apply to leases. But I see no lease here. I have stated why. In Collector of Bombay v. Municipal Corporation of the City of Bombay, : [1952]1SCR43 , what bulked large was possession, and adverse possession at that, under the colour of an invalid grant of the land in controversy --nothing like which can be predicated of the case in hand--and the precise scope and effect of the principle of equity, in the light of well-known English cases and Ariff v. Jadunath Majumdar , was kept open, as Mr. Mookerjee points out with his usual fairness. The decision in Dr. H. S. Rikhy v. New Delhi Municipal Committee, : [1962]3SCR604 , which Mr. Chittatosh Mookerjee seeks to distinguish, in anticipation of Mr. Harinarayan Mukherjee citing it (as indeed he cites in fact), turns on the construction of Section 47 of the Punjab Municipal Act, 3 of 1911, the language of which bears striking similarity with Section 103 of the Bengal Municipal Act. A decision as this goes heavily against Mr. Chittatosb Mookerjee's contention noticed above. In short, there the contention about estoppel is rejected, strict compliance with the mandate of the statute in the making of a contract is emphasized, and the legal significance of the expression 'shall not be binding' is held to mean that the contract which is so not enforceable in law, is void. True it is, as Mr. Mookerjee contends, that there the suing party were the allottees in the position of plaintiffs whereas here Jitendra is the party sued. But the contract going down as void, it makes no difference what category a party belongs to: the plaintiff or the defendant. Another distinguishing feature in Rikhy's case is said to be that the documents created no title. But that feature is here also. The impugned agreement creates no title either, prime facie.

35. Mr. Harinarayan Mookerjee refers me to two cases: Chairman of the Municipal Commissioners of South Barrackpore v. Amulya Nath, (1907) 12 Cal WN 50, a case under the old Municipal Act and Akshoy Kumar Banerjee v. Municipal Commissioners of Tollygunge Municipality, (1942) 46 Cal WN 393, a case under the present Municipal Act, which supports his contention and the view I have taken of the construction of Section 103. The third point of Mr. Chittatosh Mookerjee must, therefore, fail too.

36. The fourth point (paragraph 13 ante) on which Mr. Mookerjee has opened his case appears to be equally, if not more, ineffective. (1907) 12 Cal WN 50 apart, the very case Mr. Mookerjee cites: J. and D. Eziekeil v. Annoda Charan Sen, AIR 1923 Cal 35, contains a significant passage in Sir Asutosh Mookerjee's judgment, after a review by his Lordship of various English cases on what a signature at law should be. The passage at page 38 of the report, right-hand column, bears:

'But these instances do not weaken, much less do they abrogate, the primary rule that where the name occurs in the document, not as authenticating the whole, but only for a particular purpose or only with reference to a part it is not an effective signature.'

So, Commissioner Md. Osmanali's signature as a witness to the impugned agreement cannot be an effective signature within Section 103, Sub-section (2), of the Bengal Municipal Act. I hold accordingly therefore, the fourth point of Mr. Chittatosh Mookerjee fails as well.

37. The fifth and last point now remains. The reasons given by the learned munsiff for appointing the present chairman as the receiver seem, in my judgment, to be unanswerable. Nothing that Mr. Cnittatosh Mookerjee contends against such appointment impresses me. The pendency of a criminal prosecution against him for violation of an order under Section 144 of the Criminal Procedure Code--itself the offshoot of bad feelings over the matter in controversy here--appears to be nothing like so important as has been imagined. At all events, he commits no jurisdictlonal error in doing what he has done. So, the fifth point cannot succeed too.

38. First and last, it is just and convenient that a receiver must be appointed. In the event of the plaintiff municipality's success, an matters are smoothened out so muoh completely eliminating thereby multiplicity of suits and proceedings. In the event of Jitendra's success, he gets the surplus money from the court in whose custody It will be. So, what is there to nurse a grievance aboutP It is, indeed, an ideal specimen of a case where a receiver should be appointed.

39. In the result, the rule fails and do stand discharged, but without costs, upon all I see here.

40. Let the records be sent down with the utmost expedition. The learned munsiff will do all he can to complete the hearing of the suit within six months from the date of service of notice of arrival of records in his court to the parties through their advocates, reporting compliance with this directive to this court through the Registrar, Appellate Side.

41. The issue on pecuniary jurisdiction is concluded by the finding recorded above and closed. All other matters in controversy are open. The learned munsiff will decide them, on his own, untrammelled by the limited observations made in the foregoing lines for the limited purpose of the interlocutory application for appointment of a receiver.

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