NATIONAL INSURANCE CO LTD Vs. DHIRENDRA NATH BANERJEE

JUDGEMENT

(1.) This is an application by the plaintiffs in an interpleader suit. The plaintiff company is an Insurance Company who on 14 October 1931 lent to D. N. Banerjee a sum of Rs. 10,000 and Banerjee deposited with them in Calcutta certain documents of title relating to a property at Ballyganj. It has been alleged that Banerjee was a partner in S.G. Mukherjee & Co. This he denies, and he states that he was in the employ of Probodh Lal Mukherjee who was the sole proprietor of the firm of S.C. Mukherjee & Co., and that he obtained the loan on behalf of his employer. The loan was admittedly repaid by the firm and Mukherjee alleges that he stood surety for its repayment and is now entitled to be subrogated to the rights of the creditor. The loan was repaid in July 1935, and in August 1935 Banerjee and Mukherjee both claimed the title deeds. In the correspondence they have set out their claims and the grounds on which those claims are based. On 23 August 1935 the attorneys for the plaintiff company wrote to the defendants that the loan had been paid off and the mortgage redeemed by Mukherjee & Co., that both Banerjee and Mukherjee claimed the title deeds and that the company was willing to make them over to either party if he could establish Ms title. The letter concludes: The matter is one which ought to be settled between you and unless some agreement is arrived at our clients will bare no other alternative than to file an interpleader suit and deposit the title deeds in Court for delivery to the claimant who will be declared rightfully entitled thereto.

(2.) The suit was eventually filed on 18 February 1937. This application is opposed by both the defendants. The procedure which should be followed in interpleader suits is laid down in Section 88, Civil P.C. and Order 35 of Schedule 1. Section 88 is as follows: Where two or more persons claim adversely to one another the same debt, sum of money or other property, moveable or immovable, from another person who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself.

(3.) Order 35, Rule 1 provides that in every interpleader suit the plaint shall state that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs; the claims made by the defendants severally; and that there is no collusion between the plaintiffs and any of the defendants. Those pleas have all been taken in the plaint. In his affidavit on this application the defendant Banerjee makes a bare allegation, without any supporting facts, that the plaintiffs are very friendly with the other defendants and that they have in collusion and in conspiracy with each other been trying to harass him. It is noteworthy that although there was a definite statement in the plaint that there was no collusion, that statement has not been denied or even pleaded to by Banerjee in his written statement, and no issue as to collusion could be raised on the pleadings. The plea of collusion has however been pressed by learned Counsel on behalf of Banerjee in this application, in order to support his claim that the plain. tiff company should not be dismissed from the suit and should pay the costs of this application. It is alleged that the application is misconceived and that allegation is based on two grounds. It is contended (1) that it is unnecessary, and that it will have the effect of increasing the costs. Reference is made to the case in Crawford V/s. Fisher (1842) 1 Hare 436 in support of the contention that the plaintiff in an interpleader suit must bear the costs of any proceedings which he may take in the suit that are productive of needless expense. For the plaintiff company, it has been pointed out that not only is this application not productive of extra costs but that it will in all probability save costs, for if matters were allowed to proceed to a hearing, briefs would have to be delivered and hearing fees incurred, and there would be costs of the various interlocutory proceedings preliminary to the hearing of a defended suit. They contend that its is in the interest of all parties, and in my opinion that contention is correct, that they should be removed from the proceedings at the earliest possible opportunity. It is nest urged that this is not the proper time within the limits laid down by the ode for a matter of this sort to be decided and considerable material has been placed before the Court as to the meaning of the words "first hearing" which are to be found in Order 35, Rule 4, viz: At the first hearing the Court may declare that the plaintiff is discharged from all liability to the defendant in respect of the thing claimed, awarding him his costs, and dismissing him from the suit.