RADHA GOVINDA RAI Vs. KHAS DHARMABAND COLLIERY CO LTD

JUDGEMENT

(1.) The defendants are the appellants, The admitted facts are these. In 1908, Raja Banwsrilal Singha granted a mining lease to one Devcndra Nath Ghosh for a period of 999 years in respect of coal lying subjacent to a block of mauza Dharmaband representing a share of fourteen annas in the mauza. In 1911, Devendra Nath Ghosh, in his turn, made a sub-lease of his interest excluding coal seams Nos. 17 and 18 to one Mr. Pringle, who also held a leasehold interest in respect of coal lying subjacent to a block of land (representing two annas share of mauza Dharamaband), adjacent to the block of fourteen annas. In April 1925 there was an agreement between Mr. Pringle and Raja Banwalilal Singha, father of Nilkantha Narayan Singha, under which for better facility cf winning and removing coal from the said adjoining land Mr. Pringle obtained permission to work and remove the same by out-stroke agreeing, inter alia, to pay to Nilkantha Narayan Singha way-leave rent or royalty at one anna per ton and in respect of coal which would be won and raised by the sub-lessees from the adjoining land through the said block of fourteen annas share. The agreement further provided that the interest of the sublessee in the coal mining rights of the fourteen annas block would remain charged for the payment of way-lease rent. Sometime later, Mr. Pringle assigned all his right, title and interest in the coal and coal mining rights as well as the rights under the said way-leave rent agreement to the New Teturia Coal Co., Ltd. While this company was in possession of the lease-hold right, Niikantha Narayan Singha sold his underground coal and coal mining right in the block representing the fourteen annas share on the 4th January 1931 to Mahendra Nath Roy, the predecessor-in-interest and karta of the joint family of the defendants. A few years later, there arose a dispute between Niikantha Narayan Singha and the defendants (hereinafer to be referred to as Roys.) as to who would receive from the sub-lessee the way-leave rent payable in terms of the registered agreement of 1925 and both demanded the same from the company. The company ultimately agreed to make the payment of the way-leave rent to the defendants on the latter executing a deed of indemnity indemnifying the former and their representatives and assigns against all claims, demands, actions and other proceedings against all losses, acts, charges, damages and expenses whatsoever that the said company might sustain by reason of the payment of the way-leave rent to Roys. Accordingly, defendant No. 1 executed a deed of indemnity in 1935 as karta of the joint family or the defendants in favour of the company. After some years, the company went into voluntary liquidation, and on the 6th October 1942 the liquidators assigned and conveyed to the plaintiffs all the right, title and interest of the company in the said fourteen annas block as also in the adjoining land together with the right of working and removing the coal of the adjoining land by out-stroke through the fourteen annas block as agreed under the way-leave agreement of 1925. In 1953 Nilkantha Narayan Singha instituted a suit for recovery of arrears of way-leave rent for the period from July 1931 to December 1942 and impleaded therein Mrs. Pringle, as Mr. Pringle was dead by that time, the New Teturia Coat Company Limited, which went into liquidation, the present plaintiffs, that is, Messrs. Khas Dharrnaband Colliery Company Limited, and the Roys as defendants. In spite of a serious contest by the defendants including the Roys, the suit was decreed by the trial court; and an appeal by the Roys up to the High Court was dismissed in February 1951. A final decree was passed in September 1951 and the decree-holder executed the decree with a prayer for realisation of the duos by sale of the charged block cf land representing the fourteen annas share, which was then owned and worked by the present plaintiffs as sub-lessees; and the present plaintiffs paid a sum of Rs. 23,500 only to the decree-holder in full satisfaction of the decretal dues and the decree-holder filed a satisfaction petition on the 2nd June 1953. The plaintiffs instituted the present suit in 1954 for recovery of the said Rs. 23,500 with interest at six per cent. per annum thereon on the ground that the Hoys are liable to pay the same to the plaintiffs according to the terms of the indemnity bond inasmuch as they were not entitled to the way-leave rent which they realised from the plaintiffs and their predecessor-in-interest, that is, the New Teturia Coal Company Limited.

(2.) The Roys, that is, the defendants, asserted in their written statement that the indemnity bond was void and without lawful consideration, inasmuch as it was executed by them under pressure and undue influence of the New Teturia Coal Company Limited. It was further alleged that the sub-lessees had not suffered any loss or damages on account of the payment cf way-leave rent to the defendants. The next plea of the Roys was that, inasmuch as the contract in the indemnity bond was personal between them and the New Teturia Coal Company Limited, the latter had no right to transfer the benefit arising to it under the bond to the plaintiffs and, in fact, the right acquired under the bond was not transferred to the plaintiffs. It was further asserted that the plaintiffs are not entitled to recover any amount, inasmuch as the payment of the decretal dues by the plaintiff was voluntary. An alternative plea was that the plaintiffs were entitled to recover only Rs. 9,875/3/-which the defendants had realised as way-leave rent from them and the Teturia Coa' Company Limited. The last plea was that the plaintiffs are not entitled to claim interest whatsoever.

(3.) The learned Subordinate Judge, who tried the suit, found that the indemnity bond was executed in the normal course of business without any pressure or undue influence and that the benefit arising to the New Teturia Coal Company Limited under the indemnity bond was in fact transferred to the plaintiffs and it could be legally transferred. The plea that the payment by the plaintiffs was voluntary was rejected and a decree for Rs. 23,500 without any interest was passed against the defendants.