Decided on December 08,1941



Gentle, J - (1.) The plaintiff is a limited company and it claims in this suit : (1) A declaration that a decree in suit No. 1-498 of 1935 in the Court of the First Class Subordinate Judge of Lahore in favour of a joint family firm of the name of Prohladdas Bhagj wandas against the plaintiff company and defendant 3 is a nullity and unenforcible, (2) A declaration that the decree has been fully satisfied; (3) That an assignment of the balance due under the decree in favour of defendant 1 is void and should be set aside, and (4) An injunction restraining defendant 1 from proceeding with a winding-up petition against the plaintiff company on the basis of any claim under the decree. Defendant 3 has neither filed a written statement nor appeared. Defendants 1 and 2 have severally filed written statements and appeared by counsel. In substance, the defences of these f two defendants admit the allegations regarding the decree being obtained in the Lahore Court and its assignment in favour of defendant l, the defendants however deny that it has been fully satisfied, and further, on behalf of defendant 1 it is pleaded that in any event by reason of the conduct of the plaintiff company it is estopped from denying the validity of the decree.
(2.) The firm of Prohladdas Bhagwandas is comprised of members of a joint Hindu family and is represented in this suit by Rajaram its karta. It is convenient hereafter to refer to this entity as the firm. The firm owned j the Elphinstone Theatre, Lahore, which it leased to the plaintiff, who in turn sublet to defendant 3. A receiver of the firm filed Suit No. 1-498 of 1935 in the Lahore Court seeking to recover from the plaintiff and defendant 3, arrears of rent. Pending the proceedings the receiver was discharged and the joint family firm, in its name, was brought upon the record or substituted for the receiver as the plaintiff in the suit. The record was not amended by including as plaintiffs each individual member of the coparcenary or that Rajaram the karta represented the firm but the name of the firm alone was added as plaintiff. The amount claimed in the suit was Rs. 14,370 and on 30 November 1937 an ex parte decree was passed for a sum of Rs. 15,662 including costs. By 11 July 1939 a total sum of Rs. 10,950 had been paid towards the decree and satisfaction for that sum was duly recorded. In the plaint the plaintiffs say that this sum of Rs. 10,950 was paid by the company. On 11th July 1939, the balance remaining was RS. 4412.5-0 due under the decree and on that date the firm assigned the decree and the balance remaining due, to defendant 1 in consideration of the payment of RS. 1000 in cash and giving a promissory note for a further sum of Rupees 850.
(3.) In November 1939 an order was passed by the Lahore Court bringing defendant 1 on; the record in substitution for defendant 2 as; the decree-holder. It is common ground that; no notice of this application was given to the plaintiff company, the judgment-debtors. One week after the assignment was executed in favour of defendant 1, his attorneys wrote to the plaintiff company a letter dated 18 July 1939, in which it is clearly stated that defendant 1 was the assignee of the decree in respect of which a sum of Rs. 4512-4-0 remained due and owing. This may be a typist's error for Rs. 4412-5-0. The plaintiff company were called upon by the letter to pay this sum, failing which proceedings to wind up the company would be taken. The letter expresses itself to be a notice under Section 163, Companies Act. No payment was made, and on 3i August, 1939, defendant 1 presented a petition in this Court to wind up the company on the ground that it was unable to pay its debts and non-compliance with the notice dated 18 July 1939 was relied upon to justify the allegations in the petition. On 4 March 1940 proceedings in the winding-up petition were stayed pending disposal of the present suit. It is to be noticed that the Elphinstone Theatre, the rent of which was the subject-matter of the Lahore suit, is situated at Lahore where all the defendants reside. The decree which it is now sought to set aside was passed by the Lahore Court. The plaintiff company has its registered office in Calcutta, and the presentation of the petition to wind it up took place in this Court. Before commencing the present suit, the company applied for and obtained leave to sue under Clause 12, Letters Patent of this Court on the ground that the presentation of the winding-up petition was part of the cause of action in the suit.;

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