Decided on July 30,1946



Simonds, J. - (1.)IN this appeal, which is brought from a judgment and decree of the High Court of Judicature at Bombay in its Appellate Jurisdiction dated October 8, 1942, reversing two judgments and a decree of that Court in its Ordinary Civil Jurisdiction, their Lordships are confronted with an unfortunate difference of opinion upon what appears to be a pure question of fact. The Appeal Court (Beaumont C. J. and Chagla J.) reluctantly and with a full appreciation of the weight to be attached to the decision of the trial Judge (Kania J.), who had seen and heard the witnesses, felt constrained to take a different view of the facts from that which he had taken, and their Lordships are clearly of opinion that they were right in doing so.
(2.)THE substantial question can be shortly stated.
The joint Hindu family, of which the appellant is the karta, carried on certain family business, including an agency firm in the name of Jhajharia Dhandhania and Company, which had until February, 1939, acted as selling agents for the Sholapur Spinning and Weaving Company, Limited, which will be called "the company", and in the month of June they owned 163 shares of Rs, 1,000 in this company which stood as to 56 in the name of the appellant,, as to 106 in the name of his son Nandkishore and as to the remaining one in the name of another nominee.

At the same date these shares were pledged as to 104 with the Allahabad Bank, Limited, Calcutta, and as to 59 with the Punjab National Bank, Limited,. Calcutta, to secure certain overdrafts. But the company claimed a lien upon them in respect of a large sum alleged to be due from the agency firm. On the other hand the firm had a large claim against the company in respect, as they alleged, of an unlawful termination of the selling agency.

(3.)ON March 9, 1939, the company resolved to exercise their lien and notice of this resolution was duly given to the agency firm.
At about the same time the pledgee banks were pressing for payment of the overdrafts. From other quarters also the appellant's family were being harassed. It is beyond doubt that they were in grave financial embarrassment.


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