H NAIK OFFICIAL LIQUIDATOR PURI BANK Vs. PANCHANON DAS

JUDGEMENT

(1.) This is a suit filed by the Official Liquidator of the Puri Bank for recovery ,of an amount of Rs. 7988-5-0 from the defendant alleged to have been, due in respect of the current, mutual and open account No. 202 of the defendant in the Balasore Branch of the Puri Bank. The defendant was admittedly a person having a current account with the said branch of the Puri Bank. In addition to having a current account, he made certain fixed deposit's and was allowed overdraft facilities for double the amount thereof, on the security of the said deposits. The two fixed deposits are evidenced by Exts. B and B-1 and are for Rs. 2000/- each. Ext. B is dated 17-10-1944, and Ext. B-l is dated 21-9-45. That they were pledged as security for the overdraft account is evidenced by Ext. C dated 23-10-45. These facts are not disputed. The amount now sued for is what is due in respect of the said overdraft account with interest without any adjustment of the fixed deposit's. The defendant does not dispute the correctness of the principal amount shown in the account as having been advanced to him, nor does he dispute that the claim is in time. His defence is twofold: (1) That the interest should have been calculated at 71/2 per cent and not at 9 per cent as has been claimed in the plaint: (2) That the moneys due to him under the fixed deposit receipts, Exts. B and B-1 have in fact been adjusted as against his overdraft account and that he is liable to pay only the balance. (3) That even if the adjustment is found not to be a fact or not to be valid and binding on the liquidator, he is entitled as a matter of law to a setoff in respect of the amounts payable to him under the said fixed deposit receipt's.

(2.) So far as the dispute regarding interest is concerned, the defendant relied upon a letter Ext. A dated 18-9-45 written by the Secretary of the Bank to the defendant which shows that in respect of the fixed deposit amount, the defendant will get 7 per cent and that in respect of his over-draft account, he will pay 71/2 per cent. The advocate for the plaintiff-liquidator accepts the genuineness of this letterand states that he is willing to have the interest as from the date of this letter recalculated with reference to the terms of this letter, Ext. A and to reduce the claim in the plaint accordingly. Before therefore passing a decree in this case this recalculation will have to be made as above.

(3.) The main question raised in this case is about the truth of the factum of adjustment leaded by the defendant. On behalf of the Bank, learned counsel for the liquidator does not accept this adjustment as true. He also raises the plea that the adjustment is not valid and binding for two reasons, (a) By the date of the alleged adjustment, neither of the fixed deposits under Exts. B and B-1 had matured and the Secretary, who is said to have made the adjustment of the unmatured deposits has no authority to do so, without the orders of the Managing Director. Therefore the said adjustment is not valid and binding on him; (b) The application for winding up of the Bank was admittedly made on 24-7-47 and the adjustment is alleged by the defendant to have been made by the Secretary on 25-7-47. Hence the same is not valid and binding, unless the Court sanctions it.