FATECHAND TARACHAND Vs. PARASHRAM MAGHANMAL

JUDGEMENT

(1.) This is a chamber summons taken out by the Official Assignee of Bombay praying that a warrant of sale issued on January 10, 1951, be quashed and set aside and that the Sheriff of Bombay be directed to hand over to the Official Assignee the move-able property belonging to the defendant, viz. the assets, stock-in-trade, cash and other articles and things of Messrs. Northern India Radio Distributors of which the defendant was the sole proprietor and which had been attached by the Sheriff under a warrant of attachment under Order XXI, Fatechand Tarachand and Anr. vs. Parashram Maghanmal (22.02.1951 -BOMHC) Page 3 of 9 ghanmal (22.02.1951 -BOMHC) Page 3 of 9 Rule 43, on October 16, 1950, in execution of a decree obtained by the plaintiffs.

(2.) Fatechand Tarachand and Karamchand Tejumal, hereinafter called the plaintiffs, filed suit No. 1665 of 1949 against Parasram Maghanmal, hereinafter called the defendant, for a decree that the partnership between the plaintiffs and the defendant carried on in shop No. 75, of Old Oriental Building, Mahatma Gandhi Road, be dissolved and accounts may be taken of the assets and business of that partnership. On March 3, 1950, a consent decree was passed whereby it was inter alia declared, that the partnership of Northern India Radio Distributors was dissolved on November 21, 1949, and the defendant was directed to pay to the plaintiffs a sum of Rs. 55,450 with simple interest at three per cent, from September 1, 1949. The defendant was allowed to pay the amount of the decree by instalments. It was further decreed that in default of payment of a sum of Rs. 8,300 by the defendant to the plaintiffs on or before March 16, 1 950, and in default of furnishing sureties on or before May 3, 1950, or in default, of payment of any two installments on their respective due dates as provided in the decree the whole of the decree amount or the balance then remaining unpaid shall become immediately due and payable. The decree proceeded to state that in the event of the defendant making any default as aforesaid plaintiff No. 1 was to be appointed receiver to take charge of the business of the Northern India Radio Distributors with all its assets, stock-intrade, and other articles with liberty to sell or dispose of the stock or the business as a going concern or to carry on the business himself or through an agent on account of the defendant with all powers under Order XL, Rule 1 (d), Civil P. C. It was also provided that as security for repayment of the decretal amount due by the defendant, the defendant by the said decree created a charge over the stock-in-trade, and all goods, articles and things belonging to the defendant in the course of the radio business from time to time and lying in the shop at 75, Old Oriental Building, Mahatma Gandhi Road, and/or in any go down and/or at any other place or places wherein the said stock-in-trade, goods, articles or things are stored.

(3.) It appears that the instalments agreed to be paid by the defendant were not duly paid. Under the terms of the decree, it was open to plaintiff 1 to take possession of the business of the defendant with all its assets stock-in-trade, and other articles as a receiver; but, instead of following that course, on October 11, 1950, the plaintiffs applied for execution of the decree by attachment and sale of the assets, stock-in-trade, cash and other articles and things (except furnitures and fixtures) of the Northern India Radio Distributors, and the moneys in the banking account standing in the name of the defendant and/or the business under Order XXI, Rules 46 and 43, Civil P. C. On this application, a warrant of attachment was issued on October 16, 1950, and attachment on the property (except the amounts lying in the banks) was effected on October 17, and the amounts lying with the banks were attached on the day following. The assets, stock-in-trade, cash and other articles were attached by the Sheriff Tinder Order XXI, Rule 43, by seizure. On November 16 the defendant was adjudicated an insolvent on the petition of a creditor. The act of insolvency on which the petition was founded was the continuance of attachment on his assets and moneys at the instance of the plaintiffs. After the Fatechand Tarachand and Anr. vs. Parashram Maghanmal (22.02.1951 -BOMHC) Page 4 of 9 ghanmal (22.02.1951 -BOMHC) Page 4 of 9 defendant was adjudicated an insolvent, an application was made for the removal of attachment levied on October 17 and 18 respectively in respect of the assets and the moneys lying in the bank, and on December 20, 1950, an order was made directing the attachment to be removed. Thereafter another application was made on December 21 by the plaintiffs for delivery of the property in possession of the Sheriff to plaintiff 1 as receiver, but that application was not granted by the Court. On January 3, 1951 the plaintiffs filed another application for execution by sale of the property of the defendant without attachment and warrant of sale was issued on January 10, 1951. The Official Assignee has taken out this chamber summons to quash and set aside that warrant of sale, and for the relief's set out by me earlier.