Kumaraswami Sastri, J - (1.)This is an application by the Nedungadi Bank, Ltd., for an order directing the Official Assignee to deliver possession of five motor cars specified in the application and to pay Rs. 44 which is alleged to be the amount realised by the sale of one motor car which was sold by the Official Assignee.
(2.)The affidavit in support of the application sets out that the insolvent Audisesha Naidu was the proprietor of the City Taxi Company, that he obtained an overdraft from the bank on the terms set out in a deed, dated the 1 of June, 1926, by which it was inter alia provided that the bank should allow accommodation to the insolvent to the extent of Rs. 5,000 on the security of six motor cars described in the schedule to the registered deed, that the bank became the mortgagee of the six cars to the extent of the advances made, that the deed also provides that the bank would be entitled to take possession of the cars whenever desired by it, that one Sambamurthi claiming to be a creditor of the insolvent filed C.S. No. 69 of 1928 on the file of this Court for the enforcement of his claim in that suit and Mr. K. G. Ramaswami Aiyangar, Advocate, was appointed receiver of the properties belonging to the insolvent and the receiver took possession of the cars which had been mortgaged to the bank, that the bank on being informed of it wrote to the receiver on the 22nd of June, 1928, demanding Rs. 2,225-3-11 due to the bank and asking that it should be paid on or before the 1 of July, 1928 and stating that in default possession would be taken, that the receiver applied for further time on the 26 of June, 1928, which was refused by the bank, that subsequently Audisesha Naidu was adjudicated insolvent on the 10 of July, 1928, that the Official Assignee has taken possession of the cars from the receiver, that the bank called on the Official Assignee to give possession of the cars, that one of the cars was sold by the Official Assignee for Rs. 44 and that the other cars are still with the Official Assignee.
(3.)The Official Assignee states that he is not aware of the claim of the bank, that the insolvent carried on the business of hiring motor cars in this City under the name of the City Taxi Company and for the purpose of that business he purchased and registered cars in his own name and the cars remained in his possession till the date of his adjudication, that under the deed of mortgage, dated the 1 of June, 1926, the cars were allowed to remain in the possession, order and disposition of the insolvent with the consent of the bank, the insolvent being the reputed owner thereof; that the receiver was appointed with a view to run the business under the guidance of the insolvent and pay certain creditors specified in the order including the bank, that the appointment of the receiver has not the effect of changing the ownership of the insolvent over the cars, that the acts of insolvency mentioned in the petition began from April, 1928, and the adjudication of the 10 of July relates back to April, that the insolvent was the reputed owner of the cars and that the bank has no claim. He says he did not take possession of one car No. 6110.