- (1.) Whether a moveable property in possession of custodian or Supurdar, in pursuance of an order of attachment-before-judgment can be restored in favour of Plaintiff-Respondents 1 to 3, after withdrawal of their suit, particularly when they were neither decree-holder or judgment debtor, nor they have any legal claim, is the main question for our determination in this custodian's First Appeal Under Section 96 read with Order 21 Rule 43-A(2)(e) of the Code of Civil Procedure, 1908, (for short the Code), directed against the judgment and order dated 14-5-84, rendered by the Additional Civil Judge. Allahabad in Misc. Case No. 34 of 1982 arising out of suit No. 219 of 1978 Under Section 20 of the Arbitration Act, 1940 (for short the Act), filed by Plaintiff Respondents 1 to 4 which was withdrawn directing the Appellant to produce and hand over 10 tonnes of tissue papers given in his custody on 30-12-1978 by the Commissioner, or in the alternative to deposit a sum of Rs. 1, 30.000 as the present price of ten tonnes of tissue papers by 15-7-1984. In case there was any default, the Appellants, Respondents 1 to 3 shall have right to get it produced or released through the process of the Court
(2.) Factual matrix of the case is that Respondents 1 to 4 were partners of M/s. Varshney Roto Printers Alld and respondent No. 4 was the Managing Partner. The firm took loan of Rs 2,70,00/- from M/s Madan Agencies between 30-5-78 to 19-7-78 and also applied to Vijai Bank. Nizamabad (Andhra Pradesh), for a variety of loans. The firm gave a sum of Rs. 85000/- as advance to M/s. Pradeep Paper Agencies, Nizamabad, Andhra Pradesh to purchase 10 tonnes of tissue papers. The firm also purchased machines for printing and other materials. On 22-8-79 and 11-9-79 the Vijai Bank sanctioned a loan of Rs 100,000/-. This amount was paid to M/s. Madan Agencies against their loan to the firm. Again on 30-10-78 the firm took key loan of Rs. 56000/- from the Bank through Sri Bipin Behari, respondent No. 4, the Managing Partner, and it was transferred to Pradeep Paper Agency. Nizamabad. Sri Bipin Behari, the Managing Partner also took loan of Rs. 50000/- on 12-9-78 from the Bank and transferred it to his firm namely Bipin Behari Paper Agencies, Nizambad.
(3.) Respondent Nos. 1 to 3 as the partners of the firm entertained sus-picision against respondent No. 4 Bipin Beharl. the Managing Partner. Consequently they filed a suit No. 219 of 1978 Under Section 20 (twenty) of the Arbitration Act, 1940 in the Court of Civil Judge, Allahabad, and also gave a notice of dissolution of the firm. A copy of the said notice was also sent to the Bank. On 10-12-78 the Plaintiff Respondents 1 to 3 moved an application for passing an order for attachment-before-judgment in respect of machines and 10 tonnes of tissue papers and also furnished security for a sum of Rs. 75,000 to Bipin Behari, respondent No. 4, lying with. Rohtas Industries, New Delhi. The Additional Civil Judge, Allahabad passed an order for attachment on 18-12-78 (page 24 of the first paper book). Thereafter an application was filed by Plaintiff-respondent Nos. 1 to 3 for appointment of Jagat Pal Singh, as Commissioner to execute its order dated 18th December, 1978. The parties gave consent for the appointment of Sri K.A. Alwa, Appellant, the Branch Manager of the Vijai Bank, Nizamabad, Andhra Pradesh, as custodian (Supurdgar). Consequently, a number of articles including Rotary machines (printing) and other articles which were earlier hypothecated to Vijai Bank, were given in his custody on 30-12-78 (Paper 27-C, pages 25 and 26 of the first paper book). That supurdginama indicates that these articles were given in his Supurdgi, but no conditions were indicated for supurdgi, nor there was any indication about the liability of supurdgar. The Commissioner submitted his report on 22-1-79 (Paper 27-C). Other grievances were satisfied with the consent of parties and only 10 tonnes of tissue papers in the custody of custodian are in dispute. The suit was withdrawn by the Plaintiff respondent Nos. 1 to 3 on 28-2-79. Thereafter an application Under Section 145, 151 read with Order 21 Rule 43-A of the Code was moved by the Plaintiff respondent on 26-5-82. There after Misc Application No. 24 of 1982 Under Section 145 read with Order 21 Rule 43-A of the Code was filed by Sri J.P. Varshney, Plaintiff respondent against Sri Bipin Behari and the present Appellant Sri K.A. Alwa (page 9 of the first paper book), with the prayer that notice may be issued to Sri K.A. Alwa to produce and supply 10 tonnes of tissue papers by 30-8-78 to Jagat Pal Singh, the Commissioner, or to deposit a sum of Rs. 1,30,000/- as price of the aforesaid tissue paper. That application was sup-ported by an affidavit (Paper 14-C page 19 of the first paper book).;