- (1.) THE Special Appeal No. 132 of 1956 came on for hearing before the Division Bench consisting of Agarwala and Upadhya JJ., The Court delivered the following differing judgments : AGARWALA, J. :This is a special appeal against the judgment of the learned Company Judge dismissing in part the appeal preferred by the appellant Jwala Prasad against the rejection of his claim by the Official Liquidators.
(2.) THE Jwala Bank was originally a private bank. It was converted into a limited concern in the year 1938. At the time of conversion an agreement was entered into between the Jwala Bank Limited and Sri Jwala Prasad appellant whereby it was agreed that Jwala Prasad shall be the Chairman of the Board of Directors of the Jwala Bank Limited, for twenty years certain with a salary of Rs. 2000/ - per month, a free furnished house and certain travelling allowances. The Bank continued to function for about 10 years when on the 12th April, 1948, it stopped its business on receipt of a direction from the Government to do so, and on the 1st August, 1949, an application for winding up was made. The Bank was wound up by an order of the 17th February, 1950, and official liquidators were appointed to take charge of the assets of the Bank. Jwala Prasad lost no time in preferring a special appeal against this order and on the 24th February, 1950, the operation of the winding up order was stayed by the appellate Bench, The appeal was, however, dismissed on the 24th October, 1950. The Official Liquidators took charge of the assets of the Bank on the 1st November, 1950. The next day Jwala Prasad filed his claim for a sum of Rs. 8 lacs 75 thousand, in respect of his (a) monthly salary from 1 -7 -1939 to 30 -6 -1946, from 1 -6 -1950 to 31 -10 -1950 and from 1 -11 -1950 to 30 -6 -1958, (b) compensation for free furnished house, (c) travelling expenses and (d) the price of goodwill of his private concern transferred to the limited concern. The Official Liquidators allowed his claim for salary for the period between 1 -6 -1950 and 31 -10 -1950 and also allowed him salary for May 1950 which he had by mistake not claimed but which was found due to him. They also allowed the claim for travelling expenses between 1 -5 -1950 and 31 -10 -1950 at the rate of Rs. 300/ - per mensem. They did not allow the remaining amount for which Jwala Prasad filed an appeal under S. 183(5) of the Indian Companies Act before the learned Company Judge. The learned Company Judge allowed the claim for travelling expenses incurred in going to places beyond Greater Bombay on account of the business of the Bank during the period beginning from the 1st June, 1950, and ending with 31st October, 1950, with a halting allowance at the rate of Rs. 50/ - per day. He rejected the rest of the claim. In this appeal the appellants grievance is with regard to three items only : (1) Past salary from 1 -7 -1939 to 30 -6 -1946 at the rate of Rs. 2,000/ - per mensem ............ .......... Rs. 1,68,000/ - (2) Future salary from 1 -11 -1950 to 30 -6 -1958 at the same rate ...... Rs. 1,84,000/ - (3) Price of good -will .......... Rs. 5,00,000/ -
(3.) AS regards the past salary the case for the official liquidators is that Jwala Prasad had given up his claim for this amount. This plea is fully borne out from the material on the record. The learned Company Judge has pointed out that in the Balance -sheets of 1946, 1947 and 1949 there are statements on behalf of the Board of Directors signed by Sri Jwala Prasad as Chairman to the effect that the salary due to Sri Jwala Prasad has been foregone by him and that the total amount comes to Rs. 1,92,000/ -. Sri Jwala Prasad admitted his signatures on these statements and the correctness thereof. Under S. 63 of the Indian Contract Act a promisee may dispense with or remit in part in whole the performance of a promise made to him. The sum payable to Sri Jwala Prasad having once been foregone cannot be claimed now even though the act of foregoing was done without any consideration. ;