RAJBARI BANK LTD Vs. RANI HARSHAMUKHI SINHA

JUDGEMENT

(1.) Kumar Arun Chandra Sinha was the proprietor of 8 annas share of the Paikpara Raj Estate known as the Bhulua Estate. His properties consisted of revenue paying estates in the districts of Noakhali, Bakergunge, Faridpur and other districts. He mortgaged all his properties in favour of Raja Janaki Nath Roy and his co-sharers. Raja Janakinath Roy and his co sharers instituted a suit on the said mortgage in the Original Side of this Court in the year 1934 and recovered a preliminary decree for Rs. 25,00,000 and odd. By the decree Mr. Meyer was appointed a receiver with a direction to pay a sum of Rs. 750 month by month to Kumar Arun Chandra Sinha and to apply the balance in deduction of the mortgage dues. In pursuance of this decree, Mr. Meyer as Receiver took possession of the Bhulua Estate and at the material point of time, namely September 1938, Rs. 19,00,000 and odd was due to the mortgagees. Kumar Arun Chandra Sinha had other debts. He borrowed a sum of Rs. 45,000 on a promissory note from the Rajbari Bank Ltd., and another subs. tantial sum on another promissory note from the Faridpur Bank, Ltd. The Rajbari Bank Ltd., and the Faridpur Bank Ltd., are respectively, defendants 1 and 2 in the suit in which this appeal arises. In the year 1929, the former brought a suit in the Original Side of this Court on the said promissory note and recovered a decree for Rs. 53,000 and odd against the Kumar, The Faridpur Bank Ltd., also sued the Kumar and got a decree in the same year in the Original Side of this Court for a sum of Rs. 54,000. In 1938, the Rajbari Bank Ltd., got its decree transferred to Faridpur. After the decree had been transferred, it started execution in the Court of the Subordinate Judge, Faridpur, in August 1938. That execution case was numbered 118 of 1938. Nothing came out of this execution case. It was dismissed for default on 17-12-1938. On 20-12-1938, the Rajbari Bank Ltd., started execution again. This execution case was numbered 136 of 1938 and, in the course of that execution, touzi No. 3756 of the Faridpur Colloctorate which was one of the properties which had belonged to the Kumar was attached on 16 and 31-3-1939. On 30-8-1939, Rani Harshamukhi Sinha, the plaintiff in the suit and the respondent in the appeal before us, preferred a claim to the property attached, but that claim was summarily rejected on the next day on the ground that it had been filed too late. The property attached was sold on 10-4-1940, and was purchased for the sum of Rs. 1000 by the Rajbari Bank Ltd., and the Faridpur Bank Ltd.

(2.) In execution case 136 of 1938 the last mentioned Bank had applied for rateable distribution under Section 73, Civil P.C. Rani Harshamukhi filed this suit in which the appeal arises on 4-7-1940, under the provisions of Order 21, Rule 63, Civil P.C. Her case is that she is the owner of the said touzi as the Kumar had by a registered deed of conveyance dated 20- 9-1938, conveyed the said property along with other properties of the Kumar for a consideration of Rs. 50,000. From the dates that we have given above, this conveyance was executed some time before the property in question was attached by the Rajbari Bank Ltd. The defendants to the suit are the Rajbari Bank Ltd., the Faridpur Bank Ltd., Kumar Arun Chandra Sinha and Mr. Meyer, the Receiver appointed in the mortgage suit of 1934. Neither the Receiver nor the Kumar entered appearance. The Rajbari Bank Ltd., and the Faridpur Bank Ltd. filed two separate written statements. They contend that the conveyance by the Kumar in favour of Rani Harshamukhi was a fictitious transaction, that is to say, without consideration, and secondly, even if consideration had passed, that conveyance was executed by the Kumar with the intent of defeating and delaying his unsecured creditors and Rani Harshamukhi did not act in good faith. The learned Subordinate Judge found that the conveyance represented a genuine transaction, the conside-ration having, in fact, been paid by Rani Harshamukhi to Kumar Arun Chandra Sinha and that the case made by the defendants under Section 53, T.P. Act, had not been established.

(3.) The Rajbari Bank Ltd, and the Faridpur Bank Ltd., have preferred this appeal. While the appeal was pending a scheme under Section 153, Companies Act, was framed in respect of the Faridpur Bank Ltd., and as a result of the sanctioned scheme the Calcutta Bank Ltd., took over the Faridpur Bank Ltd. The Calcutta Bank Ltd., has been added by an order of this Court as a party appellant and is separately represented. The appellants argued two points before us : (1) that the conveyance in favour of the respondent Rani Harshamukhi by the Kumar dated 20-9-1938, was without consideration and (2) that in any event the conveyance represented a fraudulent transaction which is of no effect against the creditors of the Kumar. We take up these points in the order stated above. [After considering the evidence on the first point, their Lordships concluded.] We accordingly hold that the conveyance of 20-9-1938, by Kumar Arun Kumar Sinha to Rani Harshamukhi represented a real transaction and the price of Rs. 50,000 was actually paid to Kumar Arun Chandra Sinha.