9911796707
TMI Blog1929 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... anian or financial agent. He was to find up to a certain limit moneys necessary for carrying on the business of the company. He was to be the person who had the sole right to collect all sums due to the company in respect of the oils supplied. He was to have the various rights mentioned in that agreement in order to obtain for himself refund of the advances which he undertook to make. The plaintiff's case was that having been appointed under that agreement, he acted under that agreement through out the rest of the year 1928 until the month of October but that in the month of October, the defendant company, instead of allowing him to collect the out standings, collected it themselves in breach of the agreement. He further claimed that he had owing to him a sum exceeding ₹ 42,000 for which he asked for a decree and he asked for the appointment of a receiver. The defendant company who were at that time the sole defendant by their written statement admitted that the agreement of 18th April 1928 had been entered into. They referred to its terms for a proper construction and denied that it conferred a charge but they claimed that they had acted faithfully in terms of the agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laiming in execution to obtain ₹ 15,000 out of the hands of the receiver in this suit and denying that there was any charge given by the agreement upon which the plaint is founded and he made an order accordingly which made these Chowdhuries defendants to this suit for the purpose of trial of a certain issue. That issue is stated in the order dated 7th March 1929 in this way whether the plaintiff has a prior charge on the outstanding bills mentioned in the said plaint and the moneys realized thereunder or which still remain to be realized: and which moneys are in the hands of the receiver and now in the have been attached in execution of the decree made in suit No. 1357 of 1928. Accordingly the case came On for trial. 5. As between the plaintiff and, the company it does not appear that there was any dispute to be litigated as to the amount of the debt due to the plaintiff and in the decree appealed from definite figure is fixed the amount due by agreement the fight took place between, the plaintiff ion the one hand and the added defendants the Chowdhuries on the other hand and the question was whether the plaintiff in respect of his advance to the company had under the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the plaintiff at the hearing of the case. 7. The learned Judge has proceeded to discuss first the question whether, if the document is good, it gives an equitable charge. It has been contended before us on this appeal by Mr. S.C. Bose on behalf of the respondents that it does not give the plaintiff any charge at all in respect of his advances and he has relied, in particular, on the case of Palmer v. Cary [1926] A.C. 703, and on certain observations of Lord Truro in the old case of Rodick v. Gandell [1852] 1 De. Gex. M. G. 763 at p 778. It appears to me, without discussing the special facts of the case of Palmer v. Carey that if I apply She doctrine quoted thereon from Rodick v. Gandell the answer to the question of the meaning and effect of the letter of 18th April 1928 is in no way obscure: An agreement between a debtor and a creditor that the debt owing shall be paid out of a, specific fund coming to the debtor will create a valid equitable charge upon such fund. 8. I take these words from the passage quoted by Lord Wren bury in Palmer v. Carey, and I look at the document of 18th April in this light. I find there that the Banian was to collect all moneys, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that such an agreement is, under Section 130 T.P. Act, a transfer of an actionable claim'. But in any case it is certain that an agreement in writing is sufficient to effect the purposes of such an instrument as this. 11. In the next place, the evidence in this case that the Company and all the three Directors have acted under this agreement from the date thereof until the end of the year is overwhelming. The plaintiff has received all the moneys outstanding He has obtained constantly endorsements from the Directors be enable him To pay the company's moneys into his bank He has provides, as we see, advances to a large extent for the company. The company, when it came to file its written statement, accepted the lent and claimed at length that the agreement had been acted upon and that it had faithfully performed its part under the agreement There can be no doubt, therefore that this agreement was acted upon to the knowledge of all the Directors of the company. 12. Now, in these circumstances, the mooning of the learned Judge is this : Although there was no meeting of the Erectors by which the learned Judge Should appear to mean a formal meeting If the Directors to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. The draftsman in a muddleheaded way ends up by saying Given under our hands and seal of the company. We do not know when the seal was impressed but there is space for two Directors to sign. That is the draft. When Mr. Thomas came to execute it he did not carry out part of its inconsistent design. He did not carry it out properly as an instrument to be executed by the company. He did not get the other Director to sign it. He put in what is called the Directors rubber stamp and signed his own name under that apparently ignoring the seal The question arises whether, though the seal of the company was not validly affixed, the bargain is not one of which there is a perfectly good memorandum made on behalf of the company and so as to bind the company. In my judgment the case In re Fireproof Doors, Limited Umney v. The Co. [1916] 2 Ch. D. 142 shows that the mere defect in respect of the seal does not make the document for all purposes bad even if it was intended to be under seal. In that case the debentures were improperly sealed and the defect could not as such be cured by ratification, The defect was apparent to anyone reading the articles; but there being no provision requirin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
