ANIL KUMAR GUPTA Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) THIS suit was filed by Anil Kumar Gupta in this Court on 14-9-1966 in continuation of Company application No. 24 of 1965 (Under Order XXI, Rule 58. C. P. C. read with Sec tion 45-B of the Banking Companies Act) which on 22-8-1966 was ordered to be converted into a suit. The defendants are the Benares Bank Limited (in Liqui dation) and the Official Liquidator; and the relief sought is a declaration that the plaintiff is the owner in possession of the premises at No. 30 Burtolla Street, Calcutta, and that the aforesaid premises are not liable to attachment and sale in execution of a decree passed by this Court in September. 1942 against Jyoti Bhushan Gupta (father of the plaintiff) and Gokul Chand on an application under Section 187 of the Indian Com panies Act, 1913 for a sum of Rupees 97.178-5-9, with future interest, as contributories of the Bank (in liquidation). The amount claimed represented call money due on the shares in the Benares Bank Limited held by Jyoti Bhushan Gupta and Gokul Chand, the call having been made by the official Liquidator in the year 1941. After the decree had been passed, it was transmitted to Calcutta for execution; and on 8-4-1946 the Calcutta High Court attached the pre mises at No. 30 Burtolla Street in those execution proceedings. The sale of the premises in pursuance of the attachment, however, appears to have been stayed by reason of an order passed by this Court in August 1950 in connection with an other execution matter; and the stay was only vacated when an appeal arising out of that other execution was dismissed by the Supreme Court in October, 1964. The plaintiff claims that the attach ed property is not liable for the satisfac tion of the decree, being an ancestral property, in which he is one of the co-sharers; and he further pleads that the decree against his father Jyoti Bhushan is not binding on him. because it arose out of speculation resulting in an avyavaharik debt. It has further been contended by the plaintiff that the ex ecution proceedings are incompetent be cause of the pendency of proceedings under the U. P. Encumbered Estates Act, which were initiated by Jyoti Bhushan Gupta and Gokul Chand in the year 1936 and are still pending. All these aver ments are denied in the written state ment filed by the defendants, who fur ther plead that the suit is barred by limitation, is not maintainable by the plaintiff and is beyond the jurisdiction of this Court, since the property involv ed is situated at Calcutta. In addition, objection has been taken by the defen dants to the valuation (Rs. 10, 000/- plac ed on the suit) and to the impalement of defendant No. 2.

(2.) THE issues framed in this suit on 19-8-1968 are somewhat confused and repetitive, but I do not consider it neces sary to amend them, since most of them are either not pressed or have become unsustainable by reason of the fact that the parties have not chosen to produce either documentary or oral evidence in this case. The issues framed are as follows:-

(3.) ISSUES 1, 2. 3 and 4. Learned counsel for the plaintiff concedes that since no evidence has been produced to substantiate the pleas on which these issues were based, they cannot be decid ed in his favour. There is nothing belore me to show that the disputed pre mises are ancestral property, in which the plaintiff has only a share, or that the debt that forms the basis of the impugn ed decree was avyavaharik. And since the house is not shown to be ancestral, the question of Jyoti Bhushan's acting in a representative capacity as head and karta of the family does not arise.