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Satya Kumar Mukherjee Vs. the Manager, Benares Bank, Limited, and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.335
AppellantSatya Kumar Mukherjee
RespondentThe Manager, Benares Bank, Limited, and ors.
Cases ReferredBansidhar v. Kharagjit
Excerpt:
injunction, ex parte, issue of, on affidavit, validity of - affidavit, sufficiency of--provincial insolvency act (iii of 1907), section 16(c)--court, power of, to order enquiry by receiver, extent of. - .....1273, as an authority that in a case of this kind the insolvency court has authority to decide a question of title without forcing the receiver to bring a suit to have this matter decided. it is not necessary for us to decide this question at the present time or whether we are prepared to follow the allahabad decision. it is sufficient for us to say that we think that there is no evidence upon which an injunction should have been granted and the injunction is accordingly dissolved. so far as the second point is concerned, we treat the order of the district judge as being simply a direction to the receiver to enquire and report to him for his, the judge's own, information and we see no harm in that being done. when the report has been made it will be for the judge to consider whether.....
Judgment:

1. This is an appeal against an order of the District Judge of Hooghly, dated the 17th April 1917, whereby he refused an application to dissolve an ex parte injunction granted by him restraining the appellant before us from dealing with certain promissory notes of the value of Rs. 26,000 odd standing in the name of the appellant. The facts are shortly as follows. The appellant has a brother Surjya Kumar Mukerjee, and he states before us that be separated from him in the year 1897 and it appears that the brother carried on business at Muzafferpur with two other persons. This partnership was dissolved by the Court and the Benares Bank, who are the respondents before us, were creditors of the firm. I may remark in passing that the appellant was also a creditor of the firm. Surjya Kumar was adjudicated an insolvent on his own petition by the Hooghly Court. After his adjudication the Benares Bank applied to the Court in the insolvency, alleging that the Government securities already referred to were held by the appellant benami for his brother and they obtained the ex parte injunction already referred to as restraining the appellant from giving away or endorsing the Government securities. AS already stated, the appellant applied to dissolve this injunction and his application was refused, and the Judge has referred to the Receiver to enquire and determine within a month whether the Government promissory notes were the property of the insolvent or not. He purported to make the order under Section 16(c) of the Provincial Insolvency Act. Two grounds are urged before us, first, with regard to the injunction, it is said that there is no evidence upon which any such injunction should have been granted, and secondly, it is said that the effect of the order of the District Judge was to refer the question to the Receiver for finally determining between the parties the rights with regard to the ownership of these Government promissory notes. It is urged that there is no jurisdiction in insolvency to decide a question of this kind and that the proper course would have been for the Receiver to have brought a suit against the appellant to determine the title to the securities in question.

2. So far as the first point is concerned, we do not think that there was sufficient evidence before the Court to justify an order for the appointment of a Receiver. The petition and the affidavit in support of it are in identical terms and the only allegation is that the petitioners have come to know from reliable information that the insolvent has got promissory notes of the value of Rs. 26,000 odd in the name of his brother, the appellant. The affidavit filed by the appellant denies this and states that the promissory notes are his own property. There is a further affidavit in reply but I do not think that it carries matters any further; and here again we also find statements made based on information and belief. It is said that under the High Court Rules this is sufficient and that it is open to a person who swears an affidavit or verifies a petition either to make a statement founded merely on information and belief or to disclose the source of the information. Whether that is so or not we do not decide, but we are of opinion that in a case of this kind where questions of title to property are involved, it is not sufficient to state merely that the petitioner is informed and believes that such and such is the case and that it is necessary to state the source of his information upon which he relies.

3. So far as the second point is concerned, if the construction put by the learned Counsel for the appellant upon the order of the District Judge is correct, namely, that he intended to refer for final adjudication between the parties to the Receiver the question with regard to the title to these promissory notes, then we think that the order is clearly wrong. But we think that it may bear the interpretation put upon it by the learned Vakil for the respondent that the matter was only referred to the Receiver with a view to his making an enquiry and report to the Court in order to assist the Court in finally determining the rights of the parties. We have been referred to the case of Bansidhar v. Kharagjit 26 Ind. Cas. 926 : 37 A. 65 : 12 A.L.J. 1273, as an authority that in a case of this kind the insolvency Court has authority to decide a question of title without forcing the Receiver to bring a suit to have this matter decided. It is not necessary for us to decide this question at the present time or whether we are prepared to follow the Allahabad decision. It is sufficient for us to say that we think that there is no evidence upon which an injunction should have been granted and the injunction is accordingly dissolved. So far as the second point is concerned, we treat the order of the District Judge as being simply a direction to the Receiver to enquire and report to him for his, the Judge's own, information and we see no harm in that being done. When the report has been made it will be for the Judge to consider whether upon the facts before him he should direct the Receiver to bring a suit in order that the question of title may be decided, or whether the case is so clear, that is to say that the title is not really in dispute that it can be dealt with in the insolvency without the necessity of a suit. If the question of title is seriously in dispute, we state for the information of the Judge that we think he should direct the Receiver to bring a suit to have the question determined. The result is that the appeal succeeds in part and the injunction is dissolved, But the order of the District Judge referring the matter to the Receiver for enquiry, and report to him is not, we think, binding upon the appellant. The appellant is entitled to his costs of this appeal, We assess the hearing fee at three gold mohurs.

Walmsley, J.

4. I agree.


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