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Hem Nalini Devi Vs. Nishith Nath Kundu, Principal Defendant and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal256
AppellantHem Nalini Devi
RespondentNishith Nath Kundu, Principal Defendant and anr.
Excerpt:
- .....natore bank and rice mill ltd. the document was to this effect : 'to the managing agents, bank and rice mills ltd. i borrow from the dinajpur branch office the sum of rs. 100, etc.' afterwards, the natore bank and rice mills ltd., fell into bad position and could not meet all their depositors. thereupon, they held a special meeting of the share-holders whereby they sought the permission of the registrar of joint stock companies that they might pay their creditors by means of promissory notes, bonds and other documents instead of by cash. the registrar by his order dated october 1933, authorized them to meet their debts in that way and further he directed that the principal officer of the company should endorse the transfer of the notes and bonds. thereafter, the promissory note in.....
Judgment:
ORDER

M.C. Ghose, J.

1. This is an application under Section 25, Provincial Small Cause Courts Act, by the plaintiff whose suit on a promissory note has been dismissed by the trial Court. Upon hearing the learned advocates on both sides, it appears that the facts are as follows : On 30th January 1928, opposite party No. 1 borrowed Rs. 100 from the Dinajpur banch office of the Natore Bank and Rice Mill Ltd. The document was to this effect : 'To the managing agents, Bank and Rice Mills Ltd. I borrow from the Dinajpur branch office the sum of Rs. 100, etc.' Afterwards, the Natore Bank and Rice Mills Ltd., fell into bad position and could not meet all their depositors. Thereupon, they held a special meeting of the share-holders whereby they sought the permission of the Registrar of joint stock companies that they might pay their creditors by means of promissory notes, bonds and other documents instead of by cash. The Registrar by his order dated October 1933, authorized them to meet their debts in that way and further he directed that the principal officer of the Company should endorse the transfer of the notes and bonds. Thereafter, the promissory note in question was endorsed by the principal officer of the Natore Bank and Rice Mill Ltd. in favour of the plaintiff. It is said that thereafter in January 1934, the defendant paid Rs. 2 towards interest. The suit was instituted on 15th January 1937.

2. The trial Court dismissed the suit on 'two grounds, firstly, that the holder of the promissory note was not the Bank and Rice Mills Ltd., but their managing agents and as the endorsement was made not by the managing agents but by some one else, the plaintiff has no right to sue on the bond. Secondly, that the plaintiff is the wife of one Tarakeswar Chakravarty who was him self for a time a director of the Dinajpur branch and whose brother was a director of the head office, that they, when the Company was in an insolvent condition, fraudulently transferred the bulk of its assets to the plaintiff and other friends and thereby cheated the other creditors of the Company and in this position the plaintiff is not entitled to a decree against the defendant.

3. On the first point, the trial Court is clearly wrong. On a fair reading of the document, it is clear that the money was borrowed by the defendant from the Dinajpur branch office of Natore Bank and Rice Mills Ltd. The document was executed in favour of the managing agents of the said Bank and Rice Mills. This did not mean that the managing agents were the holders of the promissory note but the Natore Bank and Rice Mills were the holders. The money was paid by their branch office and they were the holders. The managing agents who had authority to accept documents on their behalf accepted these promissory 'notes on their behalf. Afterwards when the Company were in an insolvent position, they with the authority of the Registrar transferred these promissory notes along with numerous other notes and bonds to different creditors and they were endorsed by the principal officer of the Company. The plaintiff is therefore entitled to sue on the bond unless the suit can be resisted on the second ground, namely that she fraudulently obtained this bond. As to the fraud, what is alleged here is not that the Company, who were defendant 2 in the suit, ware defrauded by the plaintiff but that the Company gave undue preference to the plaintiff and thereby defrauded their other creditors. If the Company defrauded their other creditors of whom, it is said, the principal defendant is one, it is open to them to go to the proper Court against the Company, have them declared insolvent and ask the Court to order them to bring back to the Court all their assets including those which they fraudulently transferred to their creditors. But in this case, where the defendant is the debtor in respect of a promissory note of Rs. 100, it is not for him to raise that question of fraud and ask for an adjudication of the matter in this Court. He is clearly bound to pay this debt. If there has been a fraud, let him proceed with the other creditors in the proper Court. He cannot avoid paying his just debt by raising a cloudy issue of the fraud. The rule is made absolute. The plaintiff's suit will be decreed with costs, hearing fee in this Court being assessed at one gold mohur.


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