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Kissen Gopal Bogree Vs. L.J. Bavin - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in89Ind.Cas.735
AppellantKissen Gopal Bogree
RespondentL.J. Bavin
Excerpt:
transfer of properly act (iv of 1882), section 130 - assignment of chose in action, what amounts to--indorsement on bill directing debtor to pay third person on behalf of creditor, effect of. - .....of augus 1924.2. the summons was in an unusual form. it was taken out by the liquidator of the eastern machinery and engineering co., ltd., which is in liquidation, and it was addressed to kissen gopal bogree : and, the application was for a direction whether a sum of rs. 1,800-2-0 as stated in the petition in support of the application should be paid to l. g. bavin the liquidator or to kissen gopal bogree.3. the petition was presented by l.j. bavin the liquidator of the company and was countersigned on behalf of messrs. kilburn and co.4. it appears that the eastern machinery and engineering co. ltd., had sold a lathe to the diamond drill syndicate ltd., through messrs. kilburn and co. and the price of the lathe was rs. 2,000-2-0 : a sum of rs. 200 was to be deducted for a reason.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal by Kissen Gopal Bogree against the judgment of my, learned brother Mr. Justice C.C. Ghose delivered on the 25th of Augus 1924.

2. The summons was in an unusual form. It was taken out by the liquidator of the Eastern Machinery and Engineering Co., Ltd., which is in liquidation, and it was addressed to Kissen Gopal Bogree : and, the application was for a direction whether a sum of Rs. 1,800-2-0 as stated in the petition in support of the application should be paid to L. G. Bavin the liquidator or to Kissen Gopal Bogree.

3. The petition was presented by L.J. Bavin the liquidator of the Company and was countersigned on behalf of Messrs. Kilburn and Co.

4. It appears that the Eastern Machinery and Engineering Co. Ltd., had sold a lathe to the Diamond Drill Syndicate Ltd., through Messrs. Kilburn and Co. and the price of the lathe was Rs. 2,000-2-0 : a sum of Rs. 200 was to be deducted for a reason which it is not necessary for me to mention and Messrs, Kilburn & Co. were prepared to pay the sum of Rs. 1,800-2-0. But this sum was claimed by the appellant:. It was alleged that he had lent money to the Eastern Machinery and Engineering Co. Ltd., and that the-Company had endorsed the bill in respect of the lathe and had handed the bill to the appellant in order that he might collect the money on account of the debt due to him from the Eastern Machinery and Engineering Co., Ltd.

5. The endorsement was in these terms: Messrs. Kilburn & Co., kindly remit to Babu Kissen Gopal Bogree who will collect on our behalf.' The learned Judge came-to the conclusion that the endorsement was not an assignment of the debt which was owing by Messrs. Kilburn to the Eastern Machinery and Engineering Co. Ltd., and that it was nothing more than an order to pay.

6. In the first instance the learned Counsel who appeared for the appellant took an objection that the procedure, which was adopted in this case, was wrong, and that the learned Judge had no jurisdiction to deal with the matter upon the summons which was issued but after further discussion it was agreed by the learned Counsel representing the appellant and respondent that the statement of facts which appear in paras. 2 and 3 of the affidavit of Rajani Kanta Banerjee affirmed on the 28th July 1924, should be admitted and that this Court should finally dispose of the dispute between the parties.

7. In my opinion this was a wise course for the parties to adopt having regard to the fact that the amount of money in dispute is Rs. 1,800 only and it is undesirable that further costs should be incurred in the litigation of this question.

8. In my judgment the question depends upon what interpretation is to be placed upon the endorsement.

9. The endorsement was signed by Messrs. Metcalfe & Co., who were acting as secretaries of the Eastern Machinery and Engineering Go. Ltd., and in that respect the provisions of Section 130 of the Transfer of Property Act were complied with.

10. But the question remains whether the words which were used, were sufficient to cause Messrs. Kilburn & Co. to understand that the debt which was owing from them to the Company, had been made over by the Eastern Machinery and Engineering Co., Ltd., to the appellant. The learned Judge put the interpretation, which I have already mentioned upon the above-mentioned words. In my opinion they are clearly susceptible of that interpretation. It is impossible to leave out of consideration the words ' who will collect on our behalf which in their ordinary meaning would go to show that Kissen Gopal Bogree was not to collect the money on his own behalf but was to collect it on behalf of the Eastern Machinery and Engineering Co. Ltd.

11. I am, therefore, of opinion that the interpretation which the learned Judge put upon the words was correct and that this appeal should be dismissed with costs. The liquidator's costs will be taxed as between Attorney and client and paid out of the assets of the estate in his hands; any costs recovered from the appellant to be credited to the estate.

Buckland, J.

12. I agree.


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