TMI Blog1935 (8) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... Fund Act in 1925 by Notification No. 844 of 19th April 1927 to the provident fund constituted by the Dacca University. Defendant 1 obtained a simple money decree against defendant 2 on 16th February 1929 for ₹ 2,759-10-0 and in execution of the said decree attached the money standing to the credit of defendant 2 in the provident fund. The plaintiff preferred a claim under Order 21, Rule 58, Civil P. C, on 5th March 1929. The claim was disallowed on 22nd March 1929. Out of the provident fund money standing to the credit of defendant 2 the Dacca University deposited ₹ 2,773-11-3 in the executing Court on 11th March 1929. Defendant 1 withdrew the said sum of money on 23rd March 1929. The plaintiff thereafter obtained a decree on the hand-note executed by defendant 2 in his favour for ₹ 8,383-10-1 on 25th April 1929 and in execution of the said decree realised ₹ 6,902.2.0 by attaching the balance left in the Provident Fund deposit. On 22nd March 1930 the plaintiff instituted the suit out of which this appeal arises with the following prayers: (1) that the plaintiff may be declared to be entitled to the sum of money which defendant 1 withdrew from the executing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a limitation. This limitation is based on the inconvenience which would ensue if a valid title could not be obtained by the transfer of current coin in the ordinary course of circulation:... see Williams on Personal Property, p. 25. 5. Section 76, Contract Act, lays down that the word goods means and includes every kind of movable property. By Section 2, Clause 7, Sale of Goods Act, Goods means every kind of movable property other than actionable claims and money. Money is necessarily excluded from the definition not only because it constitutes the price in exchange for which the goods are sold, but because it is governed by wholly different principles of law owing to its being currency. It is therefore not regarded as a chattel but as something sui generis.... It does however partake in a limited manner of the nature of a chattel when a definite sum is entrusted to another to use or lay out in a particular manner on behalf of the person who so entrusted it. In such a case the latter may treat the equivalent of the sum so entrusted as his property and not merely as a debt due to him from the person to whom he entrusted it. He may therefore follow it if it is lent or giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate is necessary for collecting Provident Fund money after the death of the subscriber or depositor. In Atul Chandra Sen v. Sm. Kaunammal, 1935 Cal 271 it was not disputed that the Provident Fund money was a debt within the meaning of Succession Certificate Act. It is very difficult to distinguish in principle any particular sum of money standing to the credit of a subscriber in a Provident Fund from a balance standing to the credit of the depositor in a Bank. The depositor to the fund cannot claim ownership to the particular coins which he deposits. The moneys which are deducted out of the pay of an employee or which are contributed by the employer are not certain specific coins which are in deposit with the employer. It is true that owner of a movable property may continue to be the owner though he may be deprived of its possession against his consent or may voluntarily part with its possession. Coins are no doubt movable properties. But the law puts a limitation on the ownership of money or coins in view of the inconvenience which would ensue if a valid title could not be obtained by its transfer. As soon as a man parts with the possession of the coins or the money and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips of the Judicial Committee have observed that: The section covers transfers by way of security as well as absolute transfers. When a creditor 'purports to create a lien or a charge' on the debt due to him' in favour of another person, the words 'lien or charge' had no meaning except as giving to the latter a right to recover the debt from the debtor. The transaction in reality is one whereby the owner of what in English law is called a chose in action transfers it to another. 9. Also Ardesir Bejonji Surti v. Sirdar Ali Khan (1909) 33 Bom 610 at p. 628 and Ramaswami Pillai v. Muthu Chetti (1911) 34 Mad 53. Section 134, T.P. Act, also contemplates a transfer of an actionable claim for the purpose of securing an existing or future debt. When an actionable claim is mortgaged or charged for the purpose of securing a debt, the assignee stands in the shoes of the assignor and is entitled either to realise the debt from the debtor or to sue him for recovery of the debt if the debtor does not pay it when it becomes due. The plaintiff therefore by virtue of the assignment in question acquired all the rights which defendant 2 had in the Provident Fund money. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforce that charge in the suit which he brought for recovery of the debt for payment of which the Provident Fund money was hypothecated. If however the assignment was only an assignment of an actionable claim by way of security he cannot claim any right on the basis of the said assignment as he is a legal practitioner. If he would not have been hit by Section 136, T.P. Act, he could recover the debt from the Dacca University and he could sue the Dacca University as well as the defendant who realisad a portion of the Provident Fund money with notice of the assignment for recovery of the money due to him. He however did not do so. He elected to sue defendant 2 only on the basis of a hand-note obviously to avoid the bar under Section 136 and obtained a decree for the whole amount due on the promissory note against defendant 2 only. He attached the Provident Fund money in the hands of the University as a debt under the provisions of the Civil Procedure Code and realised under 0, 21, Rule 46 of the Code the balance standing to the credit of defendant 2 by execution. There cannot be any doubt that the plaintiff abandoned his rights under the deed of assignment in view of the legal diff ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
