GOVIND DAS PITY Vs. JARDINE SKINNER AND CO

JUDGEMENT

(1.) In this matter there are three appeals, Nos. 151 of 1922, 25 of 1923 and 26 of 1923. Appeal No. 51 of 1922 is against an order made by my learned brother Mr. Justice Greaves, on the 31 of August 1922, whereby he directed the Appellant Govind Das Pity to pay the sum of Rs. 3,750 to Messrs. Jardine Skinner & Co., on or before the 13 of November 1922.

(2.) The next appeal, No. 25 of 1923, is against an order made by the learned Judge on the 6 of February 1923, whereby the learned Judge directed that a previous order, which he had made on the 21 of November 1922, should be vacated, and the third appeal, No. 26 of 1923, is against an order which the learned Judge made on the 7 of February 1923, directing that a writ of attachment should issue against the person of the Appellant to the Sheriff of Calcutta authorizing him to attach the person of the Appellant and bring him up before the Court to be dealt with according to law for having failed to comply with the order, dated the 31 August, 1922.

(3.) The facts of this case are, to say the least, unusual. It appears that certain persons, Bhimraj Ramprotap and Bangsidhar, carrying on business in co-partnership in piece goods in Calcutta, were adjudicated insolvents on the 31 of October 1910. On the 10 of December 1910, a deed of composition was entered into by the insolvents of the first part, the Appellant, Seth Govind Das Pity, referred to therein as "Guarantor" of the second part, and the several creditors whose names were entered in the second column of the schedule to the deed, who had executed that deed, of the third part. It recited the insolvency, that the estate of the insolvents had vested in the Official Assignee, that the debtors had proposed to pay a composition to their creditors on their debts set forth in the schedule of six annas in the rupee payable at that time and in the manner mentioned in the deed and, then there was; this recital : "Whereas the said guarantor has agreed to join in these presents for the purpose of guaranteeing to the creditors the due payment of the said composition, this indenture witnesseth as follows : 1 That the debtors and the guarantor jointly and severally covenant with the creditors and each of them to pay to the said creditors and each of them a composition of six annas in the rupee upon the amounts of their respective debts fixed and settled at sums mentioned in the said schedule, such payment to be made within a month from the date of the order revoking, annulling or setting aside the aforesaid adjudication order or determining, dismissing or putting an end to the aforesaid insolvency proceedings now pending in the said High Court of Judicature at Fort William in Bengal in its Insolvency Jurisdiction." Then there was the ordinary covenant by the creditors that they should abstain from bringing actions in the events provided for Clause 3 provided : "If and when the said composition shall have been duly paid to the creditors respectively then the debtors and their heirs executors, administrators, representatives and their estate and effects shall be released and discharged from the several debts and liabilities now owing from or incurred by the debtors to the creditors respectively and from all actions, claims of demands in respect or on account thereof." Clause 5 provided : "The guarantor will be considered as the trustee of the settlement and is hereby empowered and authorised by the debtors to take over the estate of the said insolvents from the Official Assignee of Calcutta or from any other person or persons who has or have or may hereafter have may of the properties, estate or effects or the debtors or any of them and also to demand, realise, recover, sue for and have all debts and out- standings which the debtors or any of them or which the said Official Assignee by virtue of the aforesaid vesting order is now entitled to and also to give all effectual receipts and discharges...." Clause 7 provided : "The debtors each of them will see and take steps to have all their properties and estate and effects now vested in the Official Assignee vested in the guarantor and will execute all deeds and documents that may from time to time be required by the guarantor in that behalf." The last Clause, Clause 9, provided; "If the debtors and the guarantor make default in payment of the composition or the costs in accordance with their covenants in that behalf hereinbefore respectively contained or if the adjudication or insolvency proceedings aforesaid be not set aside, annulled, quashed, dismissed or determined by the e February, one thousand nine hundred and eleven the foregoing release shall be void and of no effect and the creditors and each of them respectively shall be remitted to and be entitled to exercise as regards their respective debts all such rights, and remedies as they and such of them would have been entitled to exercise if these presents had never been executed but without prejudice in any way to the rights of the creditors against the guarantor or to his liability under the covenant by him hereinbefore contained."