AMAL SHANKAR SEN Vs. DACCA CO-OPERATIVE HOUSING SOCIETY LTD(IN LIQUIDATION) BY INSPECTOR LIQUIDATOR, CO-OPERATIVE SOCIETY

JUDGEMENT

(1.) The Dacca Co-operative Housing Society Ltd. (now in liquidation) a society established under the Co-operative Societies Act (Act 2 of 1912); brought a suit against the appellants as the legal representatives of one Bhaba Sankar Sen. The case of the plaintiff is that Bhaba Sankar Sen who was a member of that co-operative society borrowed money from the society on three occasions and for securing re-payment thereof he executed three mortgage bonds for Rs. 8000, Rs. 2240 and Rs. 5560, on 10 July 1929, 30 June 1932 and 30 June 1932 respectively. Those bonds have been marked as Exs. 3(e), 2(h) and 1(h) respectively. All the bonds provided for payment of interest at the rate of 8 per cent. per annum and the monies were payable according to the terms of the mortgage instruments in ten yearly installments. The further allegation made in the plaint was that a sum of Rs. 150 was paid by Bhaba Sankar as interest on 15 September 1937 on the first bond, another sum of Rs. 150 on 9th November 1937 on the second bond, and a further sum of Rs. 180 was paid on 22nd November 1937 on the third bond and that no further payments had been made by him. The suit is for the enforcement of the said bonds against the appellants who are the legal representatives of the said Bhaba Sankar Sen. Many defences were taken to the suit. They were all overruled by the learned Subordinate Judge who decreed the plaintiff's claim in full by his decree, dated 17 September 1941. The appeal is directed against the said decree.

(2.) Mr. Mukherji, who appears for the appellants raises four contentions before us namely, (1) that there is no legal evidence to prove the attestation of the second and the third mortgage bonds Exs. 2(h) and 1(h); (2) that on the evidence the learned Subordinate Judge should have held that no consideration had passed; (3) that in view of Section 5(b), Co-operative Societies Act, (Act 2 of 1912) no decree could be passed on the second and third mortgage bonds inasmuch as Bhaba Sankar could not in law hold all the shares on the basis of which the loans had been given to him and (4) that in any event installments should have been granted under the Bengal Money-Lenders Act inasmuch as Rule 25 of the rules framed by the Local Government under the said Co-operative Societies Act had been contravened. We will take up the points in the order enumerated above. (1) As we have already stated, this point does not cover the mortgage bond for Rs. 8000 which was executed by Bhaba Sankar on 10 July 1929, for one of the attesting witnesses to that bond, namely Jnan Ranjan Ghose Choudhury, has been examined. He has proved that in his presence and in the presence of other two attesting witnesses whose signatures he proved Bhaba Sankar had signed the said bond. The position with regard to the second and third mortgage bonds stands thus: The attesting witnesses, who are three in number, are common. They are Mati Lal Dey Majumdar, Supati Nag, and Babu Lal Basak. None of those persons could be examined in the circumstances which we will relate later on. Their signatures only were proved by Jnan Ranjan Ghose Choudhury. It is proved by evidence that all the three witnesses are alive and, at least two of them, Mati Lal and Supati were then living in the town of Dacca where the suit was instituted. It is in these circumstances that Mr. Mukherji contends that the attestation has not been proved in view of enactment contained in Section 68, Evidence Act. The learned Subordinate Judge got over the difficulty by stating that the case fell within the proviso to that section. The learned Subordinate Judge's reasons are as follows: that as Bhaba Sankar admitted the execution in the presence of the Sub-Registrar at the time when the said two mortgage bonds were presented for registration attestation need not be proved by calling any one of the attesting witnesses even if alive and available. In the suit however the legal representatives of Bhaba Sankar have specifically denied execution. We cannot agree with him as the proviso would apply only if there is no specific denial of execution in the suit itself. If, however, in the written statement in the suit filed either by the mortgagor or by his legal representative there is denial of execution the mortgagee must examine at least one of the attesting witnesses if any one of the attesting witnesses be alive and be subject to the process of the Court unless the matter comes within Section 69, Evidence Act. The question therefore will have to be considered by us apart from what the learned Subordinate Judge has said in his judgment on the subject.

(3.) The suit was instituted in 1937. It became ready for hearing in 1941. The first relevant date for hearing was 18 August 1941. That date had been fixed at the instance of the plaintiff on the ground that summons upon one of the attesting witnesses had been returned unserved. On 3 July 1941, the plaintiff applied for summons on all the three attesting witnesses, Mati Lal, Supati and Babu Lal. The Court issused summons on the said witnesses requiring them to be present in Court on 18 August 1941, the date fixed for the hearing. The summons on all the three witnesses were duly served but they failed to appear in Court on 18 August 1941. The plaintiff thereupon applied for a short adjournment in order that he may take out summons again. The Court had no other work for the day and so it insisted upon the case going on. On that date the plaintiff examined his witness 1 Jnan Ranjan. This witness occupied the whole of that day and as the Court was likely to be engaged in sessions the plaintiff's prayer for adjournment was allowed at the fag end of the day. The hearing was fixed for 25 August 1941. On 21 August 1941, the plaintiff again applied for summons upon those witnesses and agreed to pay urgent fees for summons. Summons was issued and urgent fees for service were duly paid. The witnesses were again served but they failed to appear on the date fixed for hearing, namely, 25 August 1941. On 25 August 1941, the Court was however engaged in trying a sessions case. The hearing was therefore adjourned to 1st September 1941. As the Court was in the midst of a sessions case, the matter was mentioned in order to ascertain whether the case would be taken up on 1 September 1941 as originally fixed. The Court intimated that it would not be free till 5 September 1941. The hearing was accordingly postponed till that date. On 2 September, 1941, the plaintiff again applied for summons on the said witnesses and paid special costs. Summons was again issued by the Court requiring the witnesses to attend on 5 September 1941. The summons was duly served but again the witnesses did not appear. The case was taken up on that date. The plaintiff's witnesses who were present were examined on that date and on the following day, namely 6 September 1941. On 6 September, the plaintiff applied to the Court to issue warrant or to take such other steps under Order 16, Rule 10, Civil P. C., as it thought fit in order to compel the attendance of the three attesting witnesses. The Court however summarily rejected the prayer. The plaintiff recalled their witness Jnan Ranjan who proved the signatures of the attesting witnesses Mati Lal, Supati and Babu Lal. The Court thereupon marked the signatures on the three mortgage bonds as exhibits in the case. 7 September was a Sunday and 8 was a local holiday. The diary of the Court showed that the 9 was a day fixed for the sessions. In fact, this case could not be taken up on account of that sessions case till 11 September when the defendants first led their evidence by examining Anil Sankar Sen, one of the sons of Bhaba Sankar. These are the facts on which we are to determine whether examination of at least one of the attesting witnesses were imperative. Mr. Mukherji contends that in view of the interpretation given to Secs.68 and 69, Evidence Act, in a series of cases it must be held that attestation has not been proved. It is not necessary for us to notice all the cases cited before us by Mr. Mukherji, because the law is settled. One of the cases cited by him would be sufficient. That is the case in 31 C. W. N. 215 ( 27) 14 A. I. R. 1927 Cal. 102: 98 I. C. 147: 31 C. W. N. 215, Gobinda Chandra V/s. Pulin Behari. In that case Mukherji J., in delivering the judgment of the Division Bench, observed thus at p. 218 of the report: The mere fact that only the surviving attesting witness is considered hostile by the party does not relieve him from the duty of examining him as a witness, and this has been held in 1 Pat. L. J. 369 ( 16) 3 A. I. R. 1916 Pat, 102:1 Pat. L.J. 369:38 I. C. 604, Tula Sing V/s. Gopal Singh.. Nor is it enough that summonses and warrants had been issued upon the witness and the witness had failed to appear; and it has been so held by the Court in 27 C. W. N. ix ( 23) 27 C., W. N. ix (Notes), Piyari Sundari Radha Krishna merely taking out summons and warrants is not enough to comply with the provisions of Section 68, but the processes of the Court such as are mentioned in Order 16, Rule 10, Civil P. C., have all got to be exhausted.