HOE KIM SEING Vs. MAUNG BA CHIT
LAWS(BOM)-1935-7-12
HIGH COURT OF BOMBAY
Decided on July 11,1935

HOE KIM SEING Appellant
VERSUS
MAUNG BA CHIT Respondents

JUDGEMENT

Shadi Lal, J. - (1.) THIS appeal from a judgment of the High Court of Judicature at Rangoon raises the question whether the property in certain paddy belonging to one Maung Po Ni had passed to the appellant, Hoe Kim Seing, before the date on which the estate of the former vested in the Official Receiver who was appointed by the Court adjudging him an insolvent.
(2.) THE circumstances, which have led to the dispute, may be briefly stated. Maung Po Ni (hereinafter called Po Ni) was a cultivator of paddy in Burma and also dealt in the purchase and sale of that commodity. He made his purchases with borrowed capital, and in 1930 he was indebted to several persons, including the appellant, who was a merchant doing business on a large scale in the purchase of paddy. He had advanced about two lakhs of rupees to Po Ni for the purchase of paddy, which was to be delivered by the debtor to the creditor in satisfaction of the debt. It appears that Po Ni was unable to discharge his liabilities, and, accordingly, on July 22, 1930, he presented to the Court of the District Judge at Pegu a petition to be adjudged an insolvent. On August 16, 1930, the Court made an order of adjudication, and appointed the respondent Maung Ba Chit to be the Receiver of the insolvent's estate. This order took effect from July 22, 1930, the date of the presentation of the petition ; and it is clear that the whole of the property, which belonged to the insolvent at that date, vested in the Official Receiver. Now, it may be stated at ;he outset, that this appeal is not concerned with the insolvent's paddy which was stored at Nyaunglebin in the Pegu District, and that the dispute between the parties is now confined to the paddy which was stored at another place called Peinzalok situated in the same District. That paddy consisted of 28,000 baskets, and it is common ground that 21,000 baskets thereof were stored in a granary having three compartments, each containing 7,000 baskets, and that the remaining 7,000 baskets were stored in another godown. The paddy stored in the granary of three compartments was originally the property of one Po Thin, who, on April 24, 1930, entered into a contract with Po Ni for its sale. On that date the seller executed in favour of the buyer a document called " Sold Note," and the latter executed a corresponding document called " Bought Note. " These notes recorded the sale of the paddy to Po Ni at the price of Rs. 160 for 100 baskets, and the receipt by the seller of Rs. 2,100 as earnest money. The parties are agreed that the seller subsequently got, in part payment of the price, Rs. 12,000 on May 24, Rs. 2,000 on June 15, and Rs. 9,000 on June 22. After making these payments, the purchase- was liable to pay only Rs. 8,500, which represented the balance of the price for 21,000 baskets of paddy.
(3.) THE second lot of paddy measuring about 7,000 baskets belonged to one Hubba, and he sold it to Po Ni on April 25, 1930, at the same rate, viz. , at Rs. 160 for 100 baskets. THE notes exchanged between the parties contained similar terms, except that the seller received on that date Rs. 600 as earnest money. THEre is ample evidence, and indeed it is not disputed, that the buyer paid to the seller also another sum, Rs. 100, on that very date, and Rs. 6,000 on May 21, 1930. THE balance of the price to be paid by him was, therefore, reduced to Rs. 4,500. Of this lot of paddy, 1,600 and 720 baskets were received by him on May 26 and 27, 1930, respectively, and consigned by him to the appellant at Rangoon. THE paddy which then remained in the godown was about 5,116 baskets. This was the state of things on July 5, 1930, when the appellant, Hoe Kim Seing, learned at Pegu that the creditors of Po Ni had attached the paddy which was stored at Nyaunglebin. The appellant, who had to recover from him a large sum of money, was naturally anxious to obtain immediate possession of the paddy stared at Peinzalok, which his debtor had purchased, either at his instance, or with the money advanced by him. Accordingly, he forthwith sent his agent, Bun Kyan, with Rs. 15,000 to Peinzalok, and instructed him to pay the balance of the price due to Po Thin and Hubba, in order to take delivery of the goods sold by them. On the afternoon of that day, Bun Kyan accompanied by Po Ni arrived at Peinzalok, and paid Rs. 8,500, the balance of the price, and Rs. 300, interest on that sum to Po Thin, and Rs. 4,500 to Hubba ; and thereby satisfied in full the claims of both the vendors. The receipt of the money was duly endorsed by each vendor on his "sold Note".;


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