NATIONAL COAL CO LTD Vs. GYAN RANJAN BHATTACHARYA

JUDGEMENT

(1.) In this appeal the defendant company appeals against a judgment of my learned brother Mr. Justice Ghose decreeing the suit in favour of the plaintiff for a sum of Rs. 5,160-13-4 together with interest and costs. The suit was brought on a Hundi dated the 24 September 1923 which is in these terms: Ninety days after sight without grace we promise to pay Babu G.R. Bhattacharjee or order the sum of rupees ten thousand only for value received.

(2.) It is signed for and on behalf of the National Coal Co. Ltd., J.N. Mookerjee Managing director, and accepted as due on 22 December, 1923, by the same gentleman, J.N. Mookerjee. The learned Judge in the Court below has found first that there was presentation to the company; and I think he was entitled to so find, having regard to the affidavit of Srimani which is an exhibit in the case; secondly he has found that the plaintiff paid to the company through J.N. Mookerjee a sum of Rs. 5,000 which was claimed in the suit; thirdly, that these moneys were utilised for paying the debts for which the company had incurred legal liability, and fourthly, he has found that the plaintiff's version as to what passed at the director's meeting held on the 10 October 1923 is correct and that the entry in the minute book is not correct. The effect of this last finding he holds is to establish the plaintiff's contention that Mookerjee's borrowing of the sum of Rs. 5,000 was confirmed by the directors of the company. As a result of these findings the learned Judge has applied the equitable principle that as legal liabilities of the company had been paid off out of the money advanced the plaintiff was entitled to stand in the place of these creditors who had been paid off with such money.

(3.) The main contentions urged on behalf of the appellant are as follows : (1) that the directors as a body under the Articles of Association had no power to borrow and consequently the directors meeting of the 10 October 1923 had no power to ratify the borrowing. (2) There was no presentment to the acceptor or notice of dishonour to him and therefore no cause of action is disclosed on the pleadings. (3) Th at on the facts the equitable doctrine applied by the learned Judge had no application (4) that the company were guarantors and not principal debtors and that if the sum in suit was taken by Mookerjee and spent to recoup himself for the money advanced by him to the company, the plaintiff had not in fact paid the company's debts as it was really money advanced to Mookerjee himself. The finding of the learned Judge as to the factum of the advance and as to the correctness of the entries in the minute book as to the resolution of the 10 October 1923 were also called in question and we were asked to hold that on the facts and circumstances of the case the equitable principle applied by the learned Judge should not have been applied. In my view the learned Judge was justified in finding on the evidence that the advance was made and that the plaintiff's version of the resolution of the 10 October 1923 was correct and I do not think we should be justified on the evidence in differing from these findings.