FORBES, FORBES, CAMPBELL AND CO Vs. OFFICIAL ASSIGNEE

JUDGEMENT

(1.) This is an application under Section 115, Civil Procedure Code. It arises out of a suit filed by the Official Assignee, in whom the estate of Raoji Nanchand, who was adjudicated an insolvent, was vested, in respect of a hundi. The hundi in question was drawn in favour of one Ramdas Keshavji or bearer on Forbes Forbes Campbell & Co. Ltd, That hundi was indorsed on the back as "sold by Ramdas Keshavji to Raoji Nanchand." We are not concerned with the indorsement on the face of the hundi at the top. The hundi was presented by the Munim of one Madhavdas Keshavji to Forbes Forbes Campbell & Co Ltd. It was treated as a hundi payable to bearer and the money was paid to Madhavdas; Keshavji's Munim, This Madhavdas Keshavji was a third person in whose favour there is no indorsement on the hundi. The Official Assignee claimed the amount of this hundi as belonging to the insolvent Raoji Nanchand. The learned . Chief Judge of the Small Causes Court, Bombay, who heard the suit, passed a decree in favour of the plaintiff, holding that by the last indorsement, which was not an indorsement in blank, but an indorsement in full, the hundi ceased to be payable to the bearer, and that at the time of the presentation it was payable in law only to Raoji Nanchand or his order. There was an application to the Full Court, and the Full Court also came to the same conclusion and discharged the rule which was granted by that Court.

(2.) An application was made to that Court to make a reference to this Court under Section 69 of the Presidency Small Cause Courts Act; but the learned Judges constituting the Full Court apparently did not entertain any reasonable doubt as to the point and decided it against the defendants.

(3.) The defendants have now applied to this Court under our extraordinary jurisdiction, and have also prayed in the alternative that this application may be treated as an application under Section 45 of the Specific Relief Act for directing the Full Court to refer the case to this Court under Section 69 of the Presidency Small Cause Courts Act. The alternative prayer is clearly one which cannot be entertained by this Court. An application under a 45 of the Specific Relief Act would have to be made, not to this Court, but to a Court on the Original Side, and I do not desire to say anything as to whether an application under Section 45 of the Specific Relief Act could properly be made in a case of this kind.