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Rajkishore Gope and ors. Vs. Bhabatosh Chakravarty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal225
AppellantRajkishore Gope and ors.
RespondentBhabatosh Chakravarty and ors.
Cases ReferredMallikarjuna Prasad Nayadu v. M. Virayya
Excerpt:
- .....direct. in that way a certain amount of security for the loan would b& made realizable to the loan society. this arrangement has been held by the munsif to have been an arrangement that the builder would barrow sums up to rs. 5,000 but it is quite clear from the agreement which was eatered into with the building owners the ganja cultivators co-operative society, that the authority to pay the money to the lenders would not be withdrawn except by the consent of the loan sceiety until the completion of the works and the final adjustment of the whole amount.2. now, two creditors of the builder for rs. 313-8-9 & rs. 349-14-0 respectively attached money in the hands of the building owners the co-operative society for the debt of the builder asutosh chakravarti and thereupon the lenders.....
Judgment:

Rankin, J.

1. In this ease it appears that one Asutosh Chakravarti was a builder and he had a building contract with the Naogoan Ganja Cultivators' Co-operative Society for the construction of a charitable dispensary. He had other works in hand and in order to finance the building work he proposed to take a loan from the Naogaon Loan Office. He submitted a petition to the Naogaon Ganja Cultivators' Co-operative Society saying that he desired to take a loan and asking them to enter into an arrangement that when their bills were certified as due they would pay the money to the Loan Company direct. In that way a certain amount of security for the loan would b& made realizable to the Loan Society. This arrangement has been held by the Munsif to have been an arrangement that the builder would barrow sums up to Rs. 5,000 but it is quite clear from the agreement which was eatered into with the building owners the Ganja Cultivators Co-operative Society, that the authority to pay the money to the lenders would not be withdrawn except by the consent of the Loan Sceiety until the completion of the works and the final adjustment of the whole amount.

2. Now, two creditors of the builder for Rs. 313-8-9 & Rs. 349-14-0 respectively attached money in the hands of the building owners the Co-operative Society for the debt of the builder Asutosh Chakravarti and thereupon the lenders put in a claim. The proceedings were under an attachment before judgment and the effect of the judgment of the Munsif is shortly this. Looking to the original proposal he has come to the conclusion that the original intention was to borrow the sum of Rs. 5,000 and the builder having borrowed the sum of Rs. 5,000 and having paid it back under the arrangement he-has held that the contract was exhausted. In my judgment he has taken an entirely erroneous view. When the question is as regards a claim one is to have regard to the directions contained in Rule 60, Order 21 of the Code, and has to find whether or not the property was in possession of the judgment-debtor or of some persons in trust for him. No doubt when an attachment is of a debt it is difficult to apply the notion of possession but one has. in that case also to consider the matter upon the basis that the judgment-creditor the attaching creditor can have no right except his right as one standing in the shoes of his debtor. One has to ask oneself whether between Asutosh on the one hand and the lender on the other hand, Asutosh could possibly maintain that he had a right to take this money direct from the building owners or whether the position was that the lender was entitled to say:

the building owners are to pay me and I shall have the security for the amount advanced.

3. It is quite clear on the finding of the learned Judge that this transaction did not stop with one sum of five thousand rupees. The learned Munsif found that the lender had taken from the Ganja Cultivators' Co-operative Society directly some 16 or 17 thousand rupees. It is quite clear, therefore, that whatever be the construction of the original document whether it be for one sura not exceeding five thousand rupees or whether it be that the loan at any one time would not exceed Rs. 5,000 these parties were acting under the original arrangement which was continuing and it is impossible to say that Asutosh, who had never withdrawn the authority to the lender to take the money direct from the Ganja Cultivators' Co-operative Society and who had promised not to withdraw it until the completion of the work could claim this money as against the Loan Society. In these circumstances I have no doubt what-ever that the Munsif was wrong in rejecting this claim.

4. The question then arises whether this is a case that can be interfered with under Section 115, Civil P.C., I have great difficulty on that point, because it is not a case like the one cited before me: Hindley v. Joy Narain Marwari [1919] 46 Cal. 962, where the error of the Court below consisted in the misconstruction of its own power. This is in some sense a case of mistake upon the fact or law on the merits. At the same time having considered this matter and examined some of the cases in this Court I think it is open to me upon this occasion to hold that the Munsif has not directed his attention properly to the rule in question and that under Rule 60, Order 21, Civil P.C., he should not merely have applied his mind to the question whether the original contract existed or not. In my judgment that would not end the Imatter at all. The Munsif ought to have applied his mind to the question whether this was a property which was in the judgment-debtor's possession so that the creditor of the judgment-debtor would be entitled to resist the claim. On the whole it appears to me that these applications should succeed. I desire to say that there is no doubt or difficulty in applying Rule 63, Order 21 to a case of attachment before judgment. The matter is the subject of a Full Bench case of the Madras High Court: Mallikarjuna Prasad Nayadu v. M. Virayya [1918] 41 Mad. 849. So far as I can see that has been the law of this Court also since Sir Barnes Peacock's time.

5. In these circumstances the rules should be made absolute, the orders of the Munsif should be set aside and both the claims should be allowed with costs both in the lower Court and in this Court. Hearing fee one gold mohur in each case.


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