JOSNA BANK LTD Vs. ASIAN BANK LTD

JUDGEMENT

(1.) The 3rd defendant, namely, the Josha Bank Ltd., is the appellant and the main question in controversy is whether the appellant is entitled to priority on the amount in court deposit or whether the plaintiff-1st respondent, namely the Asian Bank Ltd., has priority. The lower court decided the question in favour of the latter and the former bas come up in appeal. The 2nd respondent before me is the 1st defendant and the 3rd respondent the 2nd defendant. The 4th respondent is the liquidator of the 1st respondent-Bank in voluntary liquidation.

(2.) The facts that led to the appeal, which are not In dispute may be briefly stated. The 1st defendant had an open loan account with the 3rd defendant from 1946. While so, the 3rd defendant filed O. S. No. 156 of 1124 against the 1st defendant; and the 1st defendant filed the statement Ex. II on 1st Meenam 1124 to the effect that he would deposit in court half the amount realised by sale of timber involved in the suit. Thereafter the 1st defendant executed a document of hypothecation and pledge of goods, namely Ex. A, on 27th February 1950 in favour of the plaintiff. Subsequent thereto the 2nd defendant, another simple creditor of the 1st defendant, filed O. S. No. 154 of 1950 against the 1st defendant; and in that suit an order for attachment before judgment was passed. On 31st January 1951 the Amin went to effect the attachment, when he found the agent of the plaintiff on the spot. The said agent objected to the attachment claiming that the plaintiff had a mortgage over the goods and was in possession of the goods. The Amin reported the matter to the court and the court ultimately directed the appointment of a receiver. The receiver was directed to take possession of the goods and sell them in public auction. This was done and the money realised was deposited in court. Now the contest is as to who, whether the plaintiff or the 3rd defendant, is entitled to the said amount in deposit.

(3.) The 1st defendant remained ex parte in the lower court and is ex parte before me. No relief is claimed in ap-peal against the 2nd defendant, though he is also impleaded in the appeal. The dispute is between the appellant-3rd defendant and the plaintiff-1st respondent, who is now represented by the Josna Bank Ltd. vs. Asian Bank Ltd. and Ors. (21.03.1962 -KERHC) Page 3 of 7