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TMI Blog1933 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to the assignment of a decree made by the said Company in favour of the respondents. A preliminary objection has been raised to the hearing of this appeal. In order to understand the soundness or otherwise of the preliminary objection it is necessary to state a few salient facts. The Pabna Dhanabhandar Co., Ltd., had a decree against the judgment debtors Nobin Kishori Chaudhurani and another. The respondents had certain deposits in the Company. On the 5th of June, 1929, they conveyed the decree to Jagneswar Sanyal, the respondent to the present appeal. On the 8th of July, 1929, an application was made by one of the creditors of the Bank for winding-up. On the 18th of November, 1929, the High Court in its' Original Side passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bommanapati v. Chinta Kunta :(1909) I.L.R. 31 A 82 ; 6 A.L.J. 71 ;1 IC 416, in support of the opposite view. It is not necessary to decide finally on the preliminary objection as we are of opinion that the appeal should fail on the merits. It appears that by a resolution of the share-holders and depositors of the Company passed on the 28th February, 1926 it was resolved by the majority that if a depositor happens to, be a debtor then the said sum may be set off and that the Bank should not go into liquidation and that every attempt will be made to sell it. On the 7th of March, 1926, there was another resolution in a special general meeting of the share-holders and depositors of the Pabna Dhanabhandar Co., Ltd. and it was resolved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . See Sharp v. Jackson (1899) A.C. 419; 68 L.J.Q.B. 866 ; 15 T.L.R. 418 . It has been argued in this case that the Subordinate Judge was wrong in holding that there was pressure from the creditors, seeing that the notice given on the 9th of January, 1929 (Ex. "E") referred to a realisation of current deposits and deposits without interest of a much smaller sum than Rs. 23,000 for which the assignment of the decree was made, and that a fixed deposit for two years of Rs. 5,000 had not become due on the 14th of May, 1929, the date of Exhibit "B." The test is whether there was an overriding intention to prefer one particular creditor or creditors. Even if the bank had committed the mistake of making the assignment in favour of a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is contended that the proceedings relating to the execution should not have been allowed to go on in view of the provisions of section 171 of the Indian Companies Act which requires that leave must be obtained after a winding-up order has been made to commence any suit or other legal proceeding against the Company. It is contended on behalf of the judgment-debtors that such leave not having admittedly been obtained, the execution proceedings cannot go on. It appears, however, that this objection was not taken by the judgment-debtors in the Court of first instance and this objection, in our opinion, does not lie in the mouth of the judgment-debtors. The objection was taken by the Pabna Dhanabhandar Company, Limited (in Liquidation) but was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, no substance in this objection and it was not even raised in the Court below. It was admitted that the third instalment fell due. The last objection is founded on the provisions of section 67 of the Transfer of Property Act read with section 99 as it stood before the amendment of the Act by which section 99 was repealed. It is said that from the provisions of paragraph No. 4 of the consent decree at page 4 of the paper-book it is clear that the execution proceedings could not terminate in the sale of the properties mentioned in paragraph 4 unless a suit was brought as contemplated by section 67. This point was not taken in the Court below nor was it taken originally in the grounds of appeal; but that ground was served on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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