SUDHINDRA KUMAR RAI CHAUDHURI Vs. GANESH CHANDRA GANGULI

JUDGEMENT

(1.) This is an appeal from a judgment of the Subordinate Judge of the 24-Parganas in Title Suit No. 124 of 1935 wherein the learned Judge found for the plaintiffs and decreed the sale of a certain property under a mortgage. The facts are stated as follows by the learned Subordinate Judge in his judgment: Defendant 1 had a half share in premises No. 1 Pudmapukur Lane and 46 Lansdowne Road; his mother Jaikali had a right of maintenance from and Residence in the same properties. On 22 September, 1916, they mortgaged their interest in the properties to Kalidas Roy Chowdhury for Rs. 10,500 and on 16 February 1919, they executed a second mortgage in his favour for Rupees 1350. The mortgages were taken by Kalidas Roy Chowdhury in the benami of one Girindra Nath Mitra, who executed a deed of release in favour of Kalidas. From their dues to the plaintiff Bank, Kalidas and his-son Jitendra, defendant 3, executed in favour of the plaintiff Bank a bond on 27 June 1925, sub- mortgaging the above mentioned two mortgages. By partition the interest of defendant 1 and Jaikali was restricted to schedule kha properties of the plaint. They executed a third mortgage in favour of Upendra Nath Kundu, the father of defendants 6 to 11 and a fourth mortgage in favour of defendant 12. Jaikali died leaving behind defendants 1 and 2 as her sons and heirs and Kalidas died leaving defendants 3 to 5 as his sons and heirs. The plaintiff Bank alleged that their claim exceeds Rs. 50,000 but after remission they claimed only Rs. 23,700.

(2.) Defendants 6 to 11 and defendant 12 filed two separate written statements denying knowledge of the plaintiff's allegations and, in case of a decree, praying for recovery of Rs. 2000 and Rs. 3000 respectively from the surplus sale proceeds. These defendants however did not appear at the trial. Defendants 3 to 5 pleaded inter alia that the plaintiff Bank brought a non-compoundable criminal case against Kalidas and Jitendra and that the case was com. promised or withdrawn on condition of Kalidas and Jitendra submitting to arbitration and executing the mortgage bond dated 27 June 1925 and that that bond was accordingly void and unenforceable. The learned Judge found that, having regard to the facts and circumstances, the debt in satisfaction of which the bond in suit was executed was a genuine one and existed previous to the criminal case and that the bond in suit was valid and enforceable in law. He therefore made an order for sale. Against that decision the appellants, defendants 3, 4 and 5, namely Jitendra, Sayendra and Sudhindra, all sons of the said Kalidas, deceased, have appealed.

(3.) The question for decision in the case is whether the mortgage bond in question is invalid and unenforceable by reason of the alleged agreement to compromise a non-compoundable criminal charge. Kalidas Roy Chowdhury was a pleader whose brother Tara Das Roy was the Manager of the Bhowanipore Bank. Two nephews of Kalidas and Taradas, namely Birendra and Parendra, were employed in the Bank and Kalidas was the legal adviser of the Bank. Kalidas and Jitendra, it is common ground, had been speculating in shares and for that purpose had over-drawn their accounts at the Bank without, it is alleged, having given proper security. This had happened previous to 1924 and had been the subject of discussion between the Bank and the Chowdhuris. From 1 April 1924 onwards, the settlement of the claims between Kalidas Roy Chowdhury and the Bank was discussed between the parties. On 1 April 1924, Kalidas wrote to the Bank asking to discuss the matter with the Directors. On 22 July, 1924, Kalidas wrote to the Bank about the securities of his that they held and asked for a complete list thereof. On 29 August 1924, the Bank wrote to Kalidas enclosing a docquet of Kalidas's account and asked him to sign it. The docquet was as follows: I have examined my account with the Bhowanipore Banking Corporation Ltd., Calcutta, as per Bank Pass Book showing balance of Rupees 2,42,700-7-11 only due by me as at 30 June 1924 which is correct.