RASH BEHARI GHOSE Vs. OFFICIAL ASSIGNEE

JUDGEMENT

(1.) This appeal is directed against an order made by Mr. Justice Rankin under Section 36 843M D & VI. 45 : at p. 4 C : 5Q B. 401 : 13 L, J, Q B. 95;8 Jur 35 : H.E. 0 of the Presidency Towns Insolvency Act, 1909. The subject-matter of the order is War Bands to the value of Rs, 20,000 deposited by Jacob and Co., with the Registrar of this Court on its original side as security for the due performance of a decree obt(sic)oul against them by the appellant, Raid Behari Gloss, or of such decree as may ultimately be made in the litigation between them. The events, which have lad up to the order, may be briefly narrated.

(2.) On the 3rd July 1913 Nitai Charan Ghose, father of the appellant, was adjudicated an insolvent on his own petition. On the 11th January 1916, the insolvent same up for his discharge and the order of the Court was that his discharge be suspended for 18 months, that is, till the 11th July 1917. The order was completed and filed on the I8th July 1917. Now it transpires that Nitai Charan Gross was employed as Manager in the firm of W. A. Lie and Co., who were the first Managing Agents of the Nalbona Coal Co. Ltd, Nitai Charan Ghose had assisted in the formation of the Company, and it was arranged amongst the promoters the as remuneration he would receive three fourths of the snares witan might be allotted to one Meinal Dasi also two-third of shan shares as might be alloted to Kaladamoyi Dasi, who ware vendor of lands to be transferred to the Company when formed. The shares, however, were issued neither in the names in these two ladies nor in the name of Nitai Charan Ghose. They were in fact issued in the name of Rash Bahari Ghose and have always stood in his name in the books of the Company. On or about the 15th May 1917 Rash Bahari Ghose dealt with these shares as his own property and self them to Jacob and Co., for Rs. 15,920. On the 20th November 1917 Rash Bahari Ghose instituted a suit against Jacob and Co., for recovery of the value of the shares, which he alleged, had been delivered to them pursuant to the agreement for sale. Jacob and Co., admitted possession of the shares, bat denied that they had obtained them from Rash Behari Ghose, they set up in fast an entirely different story as to how they had acquired title to the disputed shares. The suit was heard by Mr. Justice Ghose and on the 27th August 1919 a decree was made in favour of Rash Behari Ghose against Jacob and Co. This decree was confirmed on appeal on or about the 20th April 1920 We have been informed that Jacob and Co., have carried the matter further and have preferred an appeal to His Majesty in Council. Daring the pendency of this litigation Jacob and Co., deposited with the Registrar War Bonds of the face value of Rs. 20,000 for the performance of such decree as might ultimately become binding on them. On the 8th June 1920 the Official Assignee commenced the present proceedings with an application (which had been drawn up apparently on the 3rd May) in which he alleged that the War Bond, in so far as they covered the price of the sharer, appertained to the estate of the insolvent. He accordingly prayed that the Registrar might be directed to sell the War Bonds and to pay him the sum of Rs 15,920, The application was opposed by Rash Behari Ghose who asserted that the shares were in no cense the after acquired property of the insolvent and that their, price never formed part of his estate. Mr. Justice Rankin examined Rash Behari Ghose, overruled his objection, and declared that he was the trustee for the Official Assigns in resaved of the decree obtained by him on the 27 h August 1919 against Jacob and Co., and also in respect of the security deposited by the latter. On this basis, Mr., Justice Rankin has restrained Rash Behari Ghose (and the Official Assignee also) from taking out of Court or dealing with the security until further orders. Rash Behari Ghose has appealed against this order and Mr. Pugh has contended on his behalf that an order of this description should not have been made after summary enquiry in a proceeding under Section 36 of the Presidency Towns Insolvency Act, 1909. Mr., Avatoom has controverted this argument, and has further urged that if the contention of the appellant should prevail, the Court should direct the revival of the regular suit which had been instituted by the Official Assignee for determination of the title to the shares but was withdrawn or abandoned in view of the turn taken by the present proceedings. We are of opinion that the order under appeal should not have been made, in the circumstances of the present case, under Section 36 (5) of the Presidency Towns Insolvency Act.

(3.) Section 36 authorises the Court to summon before it any person, known or suspected to have in his possession any property belonging to the insolvent, and to examine the person so brought before it concerning the insolvent, his dealings or property Sub Section s 5 and 6 then provide as follows : - (a) If, on the examination of any such person, the Court is satisfied that he has in his possession any property belonging to the insolvent, the Court may, on the application of the Official Assignee, order him to deliver to the Official Assignee that property or any part thereof, at such time, in such manner and on such terms as to the Court may seam just. (6) Orders made under sub-Section s I A 209 : 3 P C. 783 9 Sar. P. C. T. 727 8 Moo. P.C. (N. s.) 127 20 E. Rule 76 : 17 E. Rule 2 ,0. and (5) small be executed in the same manner as decrees for the payment of money or for the delivery of procedure under the Code of Civil Procedure, 1908, respectively.