Ramendra Mohan Datta, J. - (1.)The defendant company (hereinafter culled NISCO) hypothecated with the plaintiff bank about 4500 pieces of Special Graphite Stopper Heads imported from West Germany with intent to create security for the repayment of a sum of Rupees 28,85,978.16 p. due on an overdraft account. For the recovery thereof the plaintiff filed the suit herein in this Court.
(2.)On February 26, 1968, on the application of the plaintiff Bank Mr. B, K. Chakravarty, Barrister-at-Law was appointed the Receiver, inter alia, over the whole of the stocks of iron and stores of NISCO whether then manufactured or in the process of manufacture and goods or moveablc properties of any kind stored in the premises and/or godown of NISCO or whereever situate or in transit as mentioned in the deed of hypothecation dated September 21, 1959. Mr. Chakravarty took possession thereof. He was directed by an order of this Court to sell the hypothecated goods which included the said about 4500 pieces of Special Graphite Stopper-heads imported from West Germany. Notification for sale was issued and the same was advertised in the newspapers. The conditions of sale were also settled. The offer of Messrs. Modi Steels, owned by Modi Industries Limited was the highest and at the meeting of the parties it was decided that the said offer should be accepted. Accordingly, the Receiver accepted the said offer by his letter dated April 27, 1971. The price was payable within 10 days from the said date of acceptance. On May 12, 1971 this Court ordered: "Let the payment be made in course of tomorrow and the cheque be made over to Messrs. Khaitan and Co., in the name of the Receiver. Such cheque is to be drawn by Mr. B. M. Bagaria and delivery would be effected after the cheque would be encashed. All parties to act on a signed copy of the minutes."
(3.)A cheque for Rs. 1,27,508.85 by Mr. B. M. Bagaria was sent to Messrs Khaitan & Co. in terms of the order dated May 12, 1971. The cheque was encashed. The Receiver bv his letter dated May 17, 1971 asked Messrs. Jecna & Co. the clearing agents, with whom the goods were stored, to allow Messrs. Modi Steels to take delivery of the said goods immediately upon receipt of intimation about the encashment of the said cheque. A copy of the letter was sent to Mr. B. M. Bagaria, Solicitor for Modi Steels and also to Messrs. Khaitan & Co. Solicitors for the Bank for their information and necessary action.