GAUHATI BANK LTD. Vs. RAJENDRA NATH MAJINDAR BARUA AND ANR.
LAWS(GAU)-1958-12-6
HIGH COURT OF GAUHATI
Decided on December 11,1958

Gauhati Bank Ltd. Appellant
VERSUS
Rajendra Nath Majindar Barua And Anr. Respondents


Referred Judgements :-

D.B. BALLABH DAS V. SETH NARAIN PRASAD [REFERRED TO]
UNION OF INDIA V. BANK OF THE EAST LTD. [REFERRED TO]
BANK OF THE EAST V. STATE OF ASSAM [REFERRED TO]
NATHAN LAL VS. DURGA DAS [REFERRED TO]


JUDGEMENT

Deka, J. - (1.)THIS Rule was obtained by the Gauhati Bank Limited against an order of the Subordinate Judge, Upper Assam Districts at Jorhat passed in Miscellaneous Claim Case No. 42 of 1957 whereby the claim of the opposite party No. 2 - -Assam Co -operative Apex Bank Limited, Sibsagar town, was allowed in respect of a sum attached by the decree -holder Bank in execution of a decree passed against Rajendra Nath Majindar Barua opposite party No. 1. The order itself is not very specific as to the amount under claim which has been allowed and accordingly there had been some confusion even as to the point to be decided.
On a reference to the record and after hearing the learned Advocates for the parties, we are satisfied that this amount in claim refers to the sum of Rs. 2,742.53 naya paise in respect of which a claim was filed by the Assam Co -operative Apex Bank Limited, Sibsagar by an application dated 20 -11 -1957, For the purpose of precision, I quote below the order of the learned Subordinate Judge dated 20 -11 -1957 :

"Record put up today. A cheque No. 405028 for Rs. 2,742.53 has been received from the Ex -Engineer, Sibsagar Dn. Office to arrange to acknowledge the cheque by returning the Hand receipt.

Keep the cheque in safe custody until necessary orders are passed.

One claimant appears (Assam Co -operative Apex Bank Ltd.) through lawyer and by a petition No. 1402 files claim against the attached amount of the J. D.

Put up in presence of the lawyers on the date already fixed (i.e. 25 -11 -57)."

(2.)THE case of the claimant was that the decree -holder Bank had attached some bills of the judgment -debtor for works done by him under the Public Works Department. The money for the contract was advanced by the claimant and the judgment -debtor had no interest over the amount covered by the said bills as the works were financed by the claimant in whose favour the judgment -debtor Rajendra Nath Majindar Barua executed an irrevocable power of attorney to collect the money due to the judgment -debtor till the entire sum of Rs. 15,000/ - or more advanced by the claimant was covered.
The decree -holder bank filed an objection stating that the amount under attachment was for works done before the execution of the power of attorney which was executed in favour of the claimant on 29 -12 -1956. The claimant adduced evidence to prove that the money due on the bills were for works done after the receipt of the money by the judgment -debtor from the claimant and they were not outstanding amounts on bills for other works done previous to the advancement of the money by the claimant to the judgment -debtor.

The learned Subordinate Judge accordingly found that the decree -holder bank failed to prove that the money was in connection with some other work done by the judgment -debtor previous to his execution of the power of attorney in favour of the claimant and it represented the dues to the judgment -debtor for works done with the advance received from the Assam Apex Bank Limited.

Two points were urged before the Subordinate Judge for decision, namely - -(1) whether the money represented the dues of the judgment -debtor for the works done previous to the acceptance of the accommodation by the judgment -debtor from the claimant and (2) whether a charge was created in respect of the money that was due on the bills for the works done with the money received from the claimant. Both the points were decided in favour of the claimant, and as such, the claim was allowed and the decree -holder's objection was rejected.

(3.)THE decree -holder bank has come to this Court against this order in revision alleging that the order has been without jurisdiction and is fraught with material irregularity. Mr. S.C. Das appearing for the decree -holder bank agitated before us both the points as were raised before the learned Subordinate Judge. We are reluctant to disturb the finding that the money was for the works done after the Apex Bank bad advanced the money to the judgment -debtor as alleged.
As to the second point however, we are not satisfied that either a charge was created in regard to the money due from the Public Works Department for works done by the judgment -debtor with the claimant's money or that the money covered by the cheque under attachment had in fact passed to the possession of the claimant in their own rights under the power of attorney executed by the judgment -debtor in favour of the Apex Bank on 29 -12 -56. Though the learned Subordinate Judge has referred to the above power of attorney in his judgment, he failed to interpret it strictly and in accordance with law. The finding on this point in the language of the learned Subordinate Judge is as follows :

"It is clear from the power of attorney and the evidence of the witnesses that the money was advanced on the clear understanding and condition that the claimant's dues would be the first charge on the bills and that the claimant would collect the money on the bills. The account Ex, 3 shows that the claimant advanced more than Rs. 15,000/ - under the terms of the power of attorney. The claimant has a. lien over the bills so long this amount is not paid. Virtually the amount in the bills to the extent of claimant's dues belongs to the claimant."



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