Alkash Ali Khalifa vs Nath Bank Ltd. and Another

Ram Labhaya, J.—This is an appeal from the judgment and decree of the Sub-Judge L.A.D. dated 29-3-1949 by which plaintiffs claim for a declaration that certain bills got attached by defendant 1 in execution of a money-decree against defendant a were not liable to attachment at the instance of defendant 1 was decreed.

Mafzal Ahmed, defendant 2, was a military contractor. He needed money for carrying on his contract business. He made an arrangement with the plaintiff, Messrs. Nath Bank, Ltd, Gauhati, by which the Bank was to advance-him money on over drafts amount or otherwise on the security of his contracts and supplier with the military and also against bills dawn in his favour or against drawn up bills to drawn in his favour of the Bank for discounting, and collection, etc. But these advances were to-be made by the Bank on defendant 2''s (Mafazal Ahmed''s) executing an irrevocable power of attorney in favour of the said Bank In pursuance of the arrangement an irrevocable power, of attorney was executed in favour of the Bank, on 31-10-1946. The power of-attorney had bean marked Ex. 2 The relevant portion of the power of attorney is as follows :

I, Mafzal Ahmed...carrying on business at military contractor having his office at Gauhati, District Kamrup...whereas (or the purpose of my various contracts with the Military Messrs. Nath Bank,. Ltd., a company incorporated under Companies Act, 1913, having its Head Office at 135 Canning Street, Calcutta, and Branches at various other place a indifferent provinces In British India hereinafter allowed the said Bank agrees to lend and advance me money f for my said business on overdrafts amount or otherwise on the security of contracts and supplies with the Military and also against bills drawn in my favour and or against drawn up bills to be endorsed in favours of the said Bank for discounting and collection on my agreeing to execute an irrevocable power-of-attorney in favour of the said Bank on terms and in the manner hereinafter mentioned.

After this follow usual clauses appearing in a power of attorney by which the Bank was autherised

to recover and receive from any and every person or persona, firm, company, Government, Military and railways all and any money or moneys now or hereinafter to be duo or payable to him in the said business or any account whatsoever on presentation of the bills thereof as will be endorsed and handed over by him to the said Bank and upon bills which any person or persons, body, firm, Government and Military will draw in his behalf.

The Bank was further autherised to sign and endorse the above mentioned bills if necessary on his behalf and receive payment thereof.

Defendant 1 got a money decree against defendant 2 and in execution of his decree had certain bills due to Mafzal Ahmed from the Military department attached. The Bank preferred an objection to the attachment. The objection was disallowed. The Bank then instituted the suit out of which this appeal arises for a declaration that the bills attached were not liable to attachment as they had been hypothecated in favour of the Bank which had a preferential charge on them. The suit was resisted by defendant 1 His pleas were not very definite though it seems that he disputed the Bank''s allegations about the validity of the hypothecation or charge. He also pleaded that defendant 2 owed no money to the Bank and that in any case he was entitled to have the bills attached. The amount of the bills attached at the instance of defendant 1 was Rs. 16,000. The learned Sub-Judge found that the amount of the bills payable to defendant 1 had been hypothecated to the Bank before the attachment. He decreed the claim. Defendant 1 has appealed. One important contention raised by the learned Counsel for the appellant is that a transaction by which money due or to become due in future is hypothecated or a charge created on it amounts to a transfer of an actionable claim within the meaning of Section 130, T.P. Act, and that such a transfer must be in writing. It is pointed oat that the power of attorney which forms the basis of the Bank''s claim is not such writing as is required by Section 130 and therefore there is no valid charge or hypothecation. In Mulraj Khatau v. Wishwanath 37 Bom. 198 their Lordships of the Privy Council held that the right to the proceeds of a policy of insurance on the life of a debtor which had been paid into Court was an ''actionable claim'' and Section 130 covered transfers of such a right by way of security, as well as absolute transfers. In this case the right to the proceeds of a business was alleged to have been, hypothecated. The right to such proceeds would be an ''actionable claim� within the meaning of the decision of their Lordships of the Privy Council any transfer of such a right even by way of security will also be covered by Section 130, T.P. Act. The learned Counsel for the plaintiff, therefore, is on sure ground when he contends that the charge or hypothecation on which the Bank relies must be in writing which should satisfy the requirements of Section 130. The learned counsel for the appellant does not dispute this proposition.

The next question is whether the power of attorney is such a writing as will satisfy the requirements of Section 130, T.P. Act which lays down that:

the transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly autherised agent.

The section does not prescribe any particular form that the instrument in writing must take The requirements of the section would be satisfied if there is a writing from which the intention to create a charge or hypothecation can be I gathered. In Tripura Modern Bank Ltd v. Nawadwip Chandra 49 C.W.N. 494, a contractor arranged with the plaintiff Bank for certain advances to be made to him against tenders of his work for which he had undertaken to execute for a municipality. In accordance with the arrangement, the Bank was to advance money from time to time to the contractor. He agreed that the Bank would receive payment from the municipality of bills as and when they became due for payment by the municipality. The arrangement made between the parties was embodied in two documents. One of these was a power of attorney granted by the contractor to the Agent of the Bank to draw the bills as they became due, and the other was a letter addressed to the Agent of the-Bank by the contractor. This document was referred to in the case as a letter of lien. It was held by the learned Judges in this case that it was not essential that any particular word or words be used or that the assignment creating the charge be contained in a single document. In the view of their Lordships of this intention of the parties the real test is as to whether an assignment had been created or not the two documents read together were held to amount to writing within the meaning of Section 130, T.P. Act. In the present case the arrangement is contained in one document, Ex. 2. It is distinctly stated in this document by the executants Mafzal Ahmed that he needed money for his contracts and the plaintiff Bank of (sic) money him for the purpose his business on overdrafts accounts or other wise on the security of contracts and supplies with the Military and also against bills drawn up in his favour to be endorsed in favour of the Bank on his agreeing to execute an irrevocable power of attorney. He, in consideration of the Bank agreeing to advance money on the aforesaid security, executed an irrevocable power of attorney autherising the Bank to receive and receiver payment of all bills as they became due from the Military The business, it is obvious, was being financed by the Bank. The proceeds of the business were to serve as security for the advances. The payments on account of the contract as they became due were to be made a pursuance of the arrangement to the Bank. The fact that the proceeds of the business were to serve as security was distinctly stated in the power of attorney. It might have been put in a separate document. But as things are there is no difficulty in gathering the intention of the parties from the document, Ex. 2 the Bank agreed to advance the money on the security mentioned in the document. The rest of the arrangement which deals with collection of bills was made mainly to enforce the security. The document read as a whole leaves no room for doubt that advances were to be made on the security of the bills. As the Bank had to make the advances on the security of the bills that were to accrue due to defendant a, it got the necessary authority for collection in the shape of Ex. 2, the power of attorney, which embodies the entire arrangement. I entertain no doubt that the power of attorney in this case does serve the purpose of a writing such as is required by Section 130 T.P. Act and it fulfils all its requirements.

Mr. Roy, the learned Counsel for the appellant, has relied on B.N. Rly., Employees'' Urban Bank Ltd. v. Erie Walter Stager AIR 29 1942 Pat for showing that an equitable charge can be created only by a writing as required by Section 180, T.P. Act. The learned Judge of the Patna High Court held that an equitable assignment or equitable charge could only be created by a document in writing as provided by Section 130, T.P. Act. There can be no quarrel with this proposition. The matter is concluded by the decision of their Lordships of the Privy Council referred to above. On facts, the Patna case is distinguishable. In this, a Railway Guard of B.N. Railway, who was a member of B.N. Railway Employees'' Urban Bank Ltd. applied to the Bank for a can of Rs. 2500. In his application ha offered to give as security his salary bills which would be due from time to time. The application was granted. He executed a bond in favour of the Bank. By this bond (sic) installments and further agreed so be bound by and to observed the bye taws And Rules Urban Bank. In this bond there was no condition of clause that the 48 installments should be paid by deductions from his salary which will be due to him from the B.N. Railway. The terms of the bond left the debtor free to pay the amount from other sources On that very day a letter tot authority was written by the debtor to the B.N. Railway requesting them and autherising them to deduct from the amount of his salary bills or any other sums with may be due to hint by the Railway Company, all or any part of any sum or sums of which the B.N. Railway Employees'' Urban Bank Ltd., may apply to the company for payment as due by him to the Bank on account of principal, interest, etc The two documented, the bond and the letter to the Railway authority, embodied the entire contract between the parties. It was not stated in the bond that the salary that was to become due in future was hypothecated. No statement of hypothecation or charge appeared in the letter either. The authority was given for purposes of collection. The offer that was made by the debtor when applying for the loan did not find any place in the bond or in the letter. The learned Judges, therefore, held that the two documents did not create a charge in favour of the Bank. In the present case, defendant a distinctly stated that he was giving an irrevocable power of attorney to the Bank for collection of bills as they became due as the money for the contract business was supplied by the Bank on the security of the business itself. The writing in this case contains the necessary statement about hypothec action or charge which was lacking in the Patna case. The contention of the learned Counsel that no valid charge was created, therefore, should not prevail.

It is not disputed that a charge may be created on property which is to come into existence in future and may be enforced when it comes into existence. This point seems to be concluded by authority, vide Lagdir Nauji Vs. Surendra Mohun Nag and Another, , Sonaram Dutta Vs. Sitaram Chamaria and Others, and Tripura Modern Bank Ltd. v. Nabadwip Chandra 49 C.W.N. 494 . The learned counsel has next contended that some of the bills at least write endorsed in favour of the Bank after the attachment. In these circumstance, he argues, the charge so far these bills are concerned, should be taken as having been created after the attachment, and it should have no effect against claims enforceable under the attachment. He baa relied on Ganu Singh v. Jangilal 26 Cal. 631 and Tarak Nath Mukherjee Vs. Sanat Kumar Mukherjee and Others, in support of this proposition. It is correct that transfers made after the attachment have no effect on claims enforceable under the attachment. But in this case we have found that the charge or hypothecation was created not when the bills were endorsed but on the date the power of attorney was executed. The attachment came long after the execution of the power of attorney by which the charge was created. This contention has no merit.

The last contention raised was that the statement of account placed on the record by the Bank was not certified in the manner required by the Banker''s Books Evidence Act. The failure to certify it in the manner required by the law rendered the copies of accounts produced inadmissible according to the learned counsel. The certificate is not strictly in accordance with the requirements of the law. But the failure in this respect does not justify discarding the statement of accounts as inadmissible at this stage. If copies of accounts were certified as required by law, the Bank would have been entitled to have them treated as prima facie evidence of their contents. By its failure to certify properly the statement of accounts it no doubt lost this privilege. The copies of the accounts could not then be treated as covered by that Act. The defendant appellant in these circumstances got the right to object to their admissibility on the ground that they constituted secondary evidence. He may have insisted on the production of the originals. But the copies of amounts were allowed to be produced by the accountant of the Bank without any objections from him. The secondary evidence was thus allowed to be let in. In appeal it is not open to the defendant to object to its admissibility for the first time. If the objection had been raised, the defect could have been cured at that time. Even in the grounds of appeal no objection has been taken to the admissibility of the statement of accounts in question.

This appeal, therefore, must fail and it is dismissed with costs.

Thadani, C.J.

I agree, but would add a few words.

It was contended by Mr. Roy for the appellant that the power of attorney, Ex. 2, in this case, merely contains a covenant to charge the bills due to defendant 2, Mafazal Ahmed, from the Military authorities, and that a mere covenant to charge specified moveable property does not amount to an assignment by way of security. It is true that in the opening para, of Ex. 2, there appears the statement that bills are to be endorsed by defendant 2 in favour of the plaintiff bank, and on the strength of this statement, Mr. Roy contends that as the bills were at one time endorsed by defendant 2 in favour of the plaintiff bank, there was no assignment in respect of them by way of security in favour of the plaintiff bank.

If the case had rested merely upon this particular statement contained in the power of attorney, I might have been inclined to hold that there was at best a covenant to charge the bills in favour of the plaintiff bank. But it appears from the boy of Ex. 2 that defendant 2 also authorised the Military authorities to endorse the bills on his behalf as they became due, in favour of the plaintiff bank. This act of defendant 2 in authorising the Military authorities to endorse the bills in favour of the plaintiff bank gave effect to his covenant contained in the opening para of Ex. 2--a covenant, which Mr. Roy contends, was no more than a mere covenant to create a charge on the bills. The act of defendant 2 authorising the military authorities to endorse the bills as they became due in favour of the plaintiff bank for encashment, amounts, in my opinion, to creating a valid charge : vide Ghosa on the Law of Mortgage in India, Edn. 4, vol. II, p. 839.

It is this aspect of the case which in one respect distinguishes the case reported in Tripura Modern Bank Ltd. v. Nabadwip Chandra 49 C.W.N. 494 and in other respect lends support to the contention that by Ex. 2 a valid charge was created. In the case before us, while it is true that the statement contained in the opening para of Ex. 2 might be susceptible of the construction that it amounts to no more than a mere covenant to create a charge, the covenant having been acted upon by defendant 2 in authorising the military authorities to endorse the bills, when they became due for encashment, in favour of the plaintiff bank, EX. 2 executed by defendant 2, notwithstanding the fact that it is described as a power-of-attorney, creates an assignment of the bills due to him by the military authorities by way of security in favour of the plaintiff bank.

I, therefore, agree that the appeal should be dismissed with costs.