BANK OF BIHAR LTD Vs. OMITAVE CHATTARJI

JUDGEMENT

(1.) This is a plaintiff's appeal from concurrent decrees of the Courts below dismissing the suit for enforcement of a certain charge. The facts of the case can be shortly stated as follows: The plaintiff Bank appointed Ashutosh Chattarji, the father of the contesting defendant, as manager of their Gaya Branch. Ashutosh Chattarji, before he took up his duties, executed on 19 July 1918, a document which is merely described as an indenture. The document opens with a recital in these words: Whereas the said Babu Ashutosh Chattarji agreed that on being appointed manager of the Bank of Bihar, Gaya Branch, on a salary of seventy five (Rs. 75) per mensem he, the said Babu Ashutosh Chattarji, would furnish security to the aforesaid Bank of Bihar, Ltd., amounting to the value of Rs. 4000 (Rupees four thousand) for the due and proper discharge of his duties and whereas the said post of manager of Bank of Bihar, Ltd., Gaya Branch, on a salary of Rs. 75 (seventy-five) has been conferred on him. Then follows: This indenture witnesseth that in pursuance of the aforesaid agreement and in consideration of the said post of manager....the said Babu Ashutosh Chattarji doth hereby grant, convey and transfer unto the said Bank of Bihar, Ltd., or its successor in-office his house named Kirk view ....valued at Rs. 4000 (rupees four thousand) and all the estate, right, title and interest of the said Babu Ashutosh Chattarji...in the said house and every part thereof. To have and to hold as security for the said post of manager....provided always that in the event of the removal of the said Babu Ashutosh Chattarji from the poet of manager, Bank of Bihar, Ltd., Gaya, by resignation, dismissal, death or otherwise, the said Bank of Bihar, Ltd., Patna, or its successors in-office shall reconvey the kebala of the aforesaid house unto and to the use and possession of the said Babu Ashutosh Chattarji?.

(2.) The document was registered, and Ashutosh Chattarji took up the post of manager. On 15 May 1924, Ashutosh Chattarji was discharged, and in the year 1926 the plaintiff Bank brought a suit against him in the Court of the Subordinate Judge for accounts and for amounts due in respect of losses suffered by the plaintiff Bank through the conduct of Ashutosh Chattarji. The litigation had a somewhat long history, but eventually, on 23 February 1930, an award was made in favour of the plaintiff Bank by Babu Rajendra Prasad for Rs. 4500 with future interest at six per cent, per annum. The dispute had during its course been referred to Babu Rajendra Prasad as the sole arbitrator.

(3.) On 21 March 1931, this award was filed in Court and a decree passed in its terms. The plaintiff Bank realized various sums from time to time and in the year 1934, Ashutosh Chatterji died. The present suit was filed on 25 February 1936, against the defendants who were the sons of Ashutosh Chattarji. The claim was for Rs. 4864-6-6, being the balance due on the decretal amount, and the plaintiff claimed that this amount should be realized out of the house, which it was said was charged by the document of 19 July 1918, to which I have already made reference.