CHATTU LAL MISSER Vs. MARWARI COMMERCIAL BANK LTD

JUDGEMENT

(1.) This is an appeal by Chattu Lal Misser against two orders of the 8 and the 27 of August, 1924. The order of the 27 of August, 1924 is the material order. It runs as follows: It is ordered in supersession of the order made in this suit and dated the eighth day of August instant that the defendants do pursuant to the said order on or before the twelfth, day of September next furnish security to the extent of eight lacs to the satisfaction of the Registrar of this Court in unencumbered immoveable property in Calcutta or in the town of Howrah; And it is further ordered that on such security being given within the time aforesaid the defendants shall have leave: to defend this suit; And it is further ordered that the said Registrar be at liberty to extend the time for furnishing such security as aforesaid on good cause being shown therefor: And it is further ordered that in default of the defendants furnishing security as aforesaid within the time aforesaid or within such, further time as may be allowed by the said Registrar as aforesaid a decree shall be drawn up in this suit against the defendants for the sum of rupees sixty-four lacs ninety thousand and nine hundred annas seven and pies eleven with the costs of this suit.

(2.) The suit was brought by the Marwari Commercial Bank, Ltd., which was in liquidation (the Liquidator being one Ranjit Roy who was appointed in April, 1923, against Chattu Lal Misser, Bisseswar Lal Halwasiya, Luchmi Narain Shroff and Onkarmull Shroff, who were alleged to be members of a firm called Binayek Misser & Co. It wag based upon three promissory-notes, dated the 23 of May, 1922, the 20 of July, 1922 and the 5 of September, 1922, alleged to have been executed by the defendant firm in favour of the plaintiff Bank. The total amount claimed for principal and interest up to June, 1924, was Rs. 61,90.900.

(3.) It was alleged that the defendant firm had deposited 3,08,581 shares in the Calcutta Industrial Bank, Ltd., as security for the amount due on the promissory-notes. The plaint was filed on the, 18 of June, 1921. On the 22nd of July, 1924, a summons was issued in accordance with the provisions of Chap. XXIIIA of the Rules of the High Court. Rule 3 of that Chapter provides: "Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the amount claimed, together with interest if any, or for the recovery of the land (with, or without rent or mesne profits) as the case may be and costs: Provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after the entering of appearance.