Sinnan Chetty And Anr. vs G.S. Alagiri Aiyer And Ors. on 23 April, 1923

Bombay High Court
Sinnan Chetty And Anr. vs G.S. Alagiri Aiyer And Ors. on 23 April, 1923
Equivalent citations: (1923) ILR 46 Bom 852
Author: Oldfield
Bench: W S Schwabe, Kt., K.C., Oldfield, Ramesam


Walter Salis Schwabe, Kt., K.C., C.J.

1. This suit having been dismissed on the ground that on the facts stated by the plaintiff there was no cause of action, we must assume for the purpose of this appeal that those facts are correct. On this assumption the plaintiff was the owner of a ring of the value of Rs. 1,000 and lent it to the first defendant. The plaintiff was liable to the first defendant on a promissory note for Rs. 2,500 and the first defendant was liable to the plaintiff for Rs. 2,072-8-0 being the first defendant’s contribution in respect of a joint bond which the plaintiff had discharged. The first defendant assigned the promissory note to one Mikka Pillai who brought an action on it, Original Suit No. 21 of 1915 in the Salem District Court against the plaintiff. On the 7th of March 1913 the plaintiff presented an insolvency petition against the first defendant. In that petition he alleged that the first defendant was indebted to him for Rs. 3,072-8-0 made up of the Rs. 2,072-8-0 and Rs. 1,000, the value of the ring which he alleged the first defendant refused to return. He alleged that there was no consideration for the assignment of the promissory note to Mikka Pillai and that it was a fraud on the creditors and he proposed to set it off against his claim, which would thereby be reduced to Rs. 572-8-0. Three days after the presentation of the petition the first defendant pledged the ring with the second defendant, who is now represented by the fifth and sixth defendants, it is said, for Rs. 725. The second defendant took it without notice of any claim to it by the plaintiff. In Original Suit No. 21 of 1915 the plaintiff set up against Mikka Pillai’s claim on the promissory note the Rs. 2,072 due by the first defendant and also Rs. 1,000 the value of the ring, no doubt on the basis that Mikka Pillai was not a holder in due course of the note.

2. The insolvency petition was heard, the first defendant not appearing; and he was on the 2nd of December 1915 adjudicated insolvent, the District Judge holding that the assignment of the promissory note to Mikka Pillai was fraudulent and also holding, though he gave no reasons, that the plaintiff was entitled to Rs. 1,000 in respect of his ring with the result that he became a creditor of the insolvent for Rs. 572-8-0 instead of being his debtor in Rs. 427-8-0, the difference against him in respect of the two other cross claims for Rs. 2,500 and Rs. 2,072-8-0.

3. In due course the plaintiff put in his proof for Rs. 572-8-0 and it has been admitted. Subsequently he alleges that he discovered that the ring was in possession of the second defendant and brings this suit for its recovery. Owing to certain criminal proceedings the ring is in fact in the custody of the Magistrate’s Court at Attur, but for the purpose of this suit it must be treated as still in the possession of the pledgee, the second defendant. The second defendant contends that the plaintiff has definitely elected to treat the ring as the property of the first defendant—first by his petition in insolvency and subsequent proof whereby he has treated the value of it as a debt due to him and used part of it as a set off against the balance of the insolvent’s claim against him, and on the other part has filed his insolvency petition, and that the Court by allowing the petition and subsequently admitting the proof has accepted his contention, and that this involves a decision that the property in the ring has passed to the first defendant from which it follows that the plaintiff has no longer any claim to it. Secondly reliance was placed on the plaintiff having in the suit by Mikka Pillai used the Rs. 1,000 or part of it as a debt due from the first defendant and therefore available for him as an answer to Mikka Pillai’s claim on the promissory note. I think there is nothing in the latter contention. Apparently Mikka Pillai had no claim at all and no such set off has, in fact, been allowed against him, it being unnecessary to consider the question in view of the fact that the negotiation to Mikka Pillai has been held to be fraudulent. We have not got the full facts as to this before us. But I assume this to be the position from the fact that the plaintiff has only been allowed to prove on the basis that he is indebted on the promissory note to the first defendant and not to Mikka Pillai. But the use that the plaintiff has made of his right against the first defendant in respect of the ring in the insolvency petition stands on a different footing and gives rise to a difficult question in respect of which there is little authority.

4. The District Munsif has held that the plaintiff has lost his title to the ring and the District Judge has held to the contrary and on appeal Krishnan, J., agreed with the District Judge and Venkatasubba Rao, J., with the District Munsif.

5. The matter is not rendered more easy by the fact that in my judgment the first defendant ought not to have been adjudicated on this petition. I know of no principle on which a debtor can turn himself into a creditor for the purpose of presenting an insolvency petition by setting off the value of property unlawfully detained or converted by another against a liquidated claim by that other against him, and so leave a balance due to him in respect of the dealings between them. For it must be remembered that it is only in respect of liquidated demands that insolvency petitions can be presented. But he has been allowed to do so in this case and we must deal with it accordingly. The plaintiff cannot by this apparently irregular order of adjudication be in a better position than he would have been if he had recovered judgment for Rs. 1,000 damages for conversion of the ring and, in my judgment, we must look upon the adjudication as equivalent to such a judgment for the conversion of his ring by failure to deliver it up on demand and we must look upon that judgment as satisfied to the extent of Rs. 427-8-0 by being used to that extent to extinguish the balance which would otherwise be due from the plaintiff to the first defendant. For the balance of this claim for Rs. 1,000 the plaintiff has attempted to obtain satisfaction by proof in the insolvency but so far has received nothing by way of dividend in respect thereof.

6. The question then arises whether a judgment in conversion passes the property to the defendant unless and until it is satisfied, I think not. The leading case on the subject is Brinsmead v. Harrison (1871) L, R., 6 C.P, 584. In that case there had been an action for conversion and detention of a piano which resulted in a money judgment for an amount presumably the value of the piano, and the judgment being unsatisfied a second suit was brought in detinue to recover the piano from another person in whose possession it was. The defendant set up that by the judgment in the former suit the property in the piano passed to the defendant in that suit and that therefore the plaintiff could not sue. But the Court of Common Pleas held that the property did not pass under such a judgment without satisfaction, the judgment being treated as an assessment of the value and the satisfaction of the judgment as the payment of the price. This case has always been treated as good law. It is worth calling attention to the fact that there are two distinct forms of action which could be brought against a defendant who has or should have moveable property of the plaintiff in his possession. They are known as detinue and conversion, the latter being in the old law also called trover. In the former the suit is primarily for the return of the chattel to which is usually added a claim for its value in default of its return. The decree in such an action takes two alternative forms with the same effect. One is for the return to the plaintiff within a limited time of the chattel or its value together with damages, if any, for its detention, and the other is for a sum being the value plus the damages for its detention, to be reduced to the damages only if the chattel is returned in a certain time. In either case the option to return or to pay is in the defendant, but the Court may, in proper cases, order the specific delivery of the chattel which the defendant must comply with on pain of contempt, or it may order the issue of a writ of delivery to the sheriff directing him to seize the chattel. The action for conversion or trover is for damages only and is as a rule for the value of the chattel and is based on an allegation that the defendant has converted the chattel to his own use by some wrongful dealing with it, one instance of which is the refusal to deliver up on demand, and on a decree of this kind the defendant has no option to deliver up the chattel nor has the plaintiff a right to demand it.

7. I have called attention to this distinction because it has been suggested that the rule in Brinsmead v. Harrison (1871) L.R, 8 C.P., 581. applies only to actions in detinue and not to actions in conversion. I confess that to me the suggestion is attractive, but in my judgment the weight of authority is against it. Brinsmead v. Harrison (1871) L.R, 8 C.P., 581. itself is a clear authority to the contrary. In re Gunshourg (1920) 2 K.B., 428 at p. 486., Sterndale, M. R., says,
The order lie has obtained amounts to nothing more than judgment in detinue or trover for the value of the goods and it has not been satisfied. It, has been clear law since the case of Brinsmead v. Harrison (1871) L.R, 8 C.P., 581. that such a judgment unsatisfied does not operate to transfer the property to the person against whom judgment was obtained or prevent the true owner from suing a third person not the original wrongdoer for the return of the plaintiff’s goods which that third person continues to detain from him. That was the exact point determined upon the new assignment in Brinsmead v. Harrison (1871) L.R., 8 C.P.,584. and that decision is conclusive sgainst the appellants on this point.

8. It is true that Warrington, L.J., at page 447 says “I think it is settled that a judgment for the recovery of goods or their value, or for the value of the goods to be reduced if the goods are delivered, does not of itself transfer the property to the defendant, but only if and when it is satisfied by actual payment of the value (Brinsmead v. Harrison (1871) L.R., 6 C.P., 584.)”; thus confining his judgment to cases of detinue. In Ex parte Drake, In re Ware(1877) 5 Ch. D., 866., which is not unlike the present case, in which Brinsmead v. Harrison (1871) L.R., 6 C.P., 584. was followed, it was unnecessary to discuss this point as the previous action had been in detinue.

9. Some doubt, however, is thrown on the matter by Bradley and Cohen, Limited, v. Ramsay & Go. (1912) 106 L.T., 771. In that case Piitllimore, J., held that the principle of Brinsmead v. Harrison (1871) L.R., 6 C.P., 584. applied only to cases of detinue and in the Court of Appeal Kennedy. L.J., with whose judgment Cozens Hardy, M.R., agreed, says that he agrees with Phillimore, J., on this point. But he adds that the earlier judgment obtained was for the price of the goods in question and that therefore the judgment obtained was different from the judgment in Brinsmead v. Harrison (1871) L.R., 6 C.P., 584. and prevented the plaintiff suing again. But Buckley, L.J., points out that the judgment in that case was not a judgment for damages but for the price of the goods as on a sale, and he so explains the judgment of Phillimore, J. The defendant in the earlier case had at one time at any rate had the property from the plaintiff on sale or return and I think that the decision in that case can be explained without in any way cutting down the effect of the judgment in Brinsmead v. Harrison (1871) L.R., 6 C.P., 584., on the ground, that the earlier judgment was based on the election by the plaintiff to treat a contract of sale or return of the goods, which had in fact been determined as still alive and resulting in a sale, for the judgment was for the price and not for damages, as is quite clear from the fact that the value us opposed to the price which would be the measure of damages for conversion was not considered: It may be that if this point ever comes before the highest tribunal the operation of the principle of Brmsmead v. Harrison (1871) L.R., C C.P., 584. will be confined to the judgment in detinue. But in the present state of authorities I do not think we can so limit it.

10. Mere proof in Bankruptcy does not amount to satisfaction so as to pass the property. See Ex parte Drake. In re Ware (1877) 5 C h. D., 866. Nor does it seem that part satisfaction by execution or by receipt of dividend in bankruptcy would have that effect.

11. It is, however, clear from Ex parte Drake, In re Ware (1877) 5 C h. D., 866. that the plaintiff can after judgment elect to look only to his chance of obtaining satisfaction by execution or by proof and give up his claim to the property: In re a Debtor, En parts Petitioning creditor (1907) 97 L.T., 140 the plaintiff obtained a judgment for the return of a cup forthwith or for payment of £50 its value and for £5-5-0 for damages and for costs. The cup not being returned he signed judgment for the full amount and issued a bankruptcy notice for non-compliance with that judgment. After that date the debtor sent the cup to the plaintiff and on the hearing of the petition claimed that there was no longer a good petitioning creditor’s debt as it ought to be treated as reduced by the value of the cup. The Court ordered adjudication and Bigham, J., said,
It has been contended that the property in the cup is still in the petitioning creditor. I think, however, that by issuing the bankruptcy notice and presenting the bankruptcy petition the creditor finally elected to abandon the property in the cup to the debtor and that it now vests in him and will form part of the estate in Bankruptcy.

12. This was not necessary for the decision of the case because the debtor failed to exercise the option that was given of returning the cup forthwith, with the result that the judgment became a money judgment only and he having lost his option was liable for the full amount of the judgment and could properly be adjudicated for non-compliance, and I am not satisfied that if the plaintiff had subsequently found the cup in the hands of a third party, he could not on the principle of Brinsmead v. Harrison (1871) L.R., 6 C.P., 584. have sued that person for it. But, however that may be, I think there is much more here. The plaintiff when he petitioned in insolvency had no judgment at all nor any thing equivalent to one. But what he did was to allege that the first defendant owed him Rupees 1,000 as a liquidated amount and set off about half of that amount against a debt due from him to the insolvent and then used the balance as a liquidated amount to support his insolvency petition, and in my judgment that amounts to a definite election to abandon all right to the ring in favour of the first defendant, and to look only to the advantage of getting rid of the balance of his own debt to the first defendant, and the hope, by the pressure of insolvency proceedings, of getting payment of the balance from the first defendant. It follows that, at the date of the pledge to the second defendant, the first defendant had a good title to the ring and the plaintiff had none, that at least on the date of the adjudication the plaintiff gave up all further interest in the ring, and that if the first defendant had no title at the date of the pledge he got one on the date of adjudication on the principle of feeding the title as it is called in Whitehorn Brothers v. Davison (1911) I.k.R., 463. or forwarding the title as it is called by Phillimore, J., in In re a Debtor, Ex parte Petitioning Creditor (1907) 97 L.T., 140. the principle being that if there is a sale or pledge to a bona fide purchaser or pledge for value by one who has no title, if that person subsequently obtains a title it enures to the benefit of the purchaser or pledgee.

13. On these grounds I think that the judgments of the District Munsif and Venkatasubba Rao, J., are correct and the appeal must be allowed with costs throughout.

Oldfield, J.

14. I agree.

Ramesam, J.

15. I agree.

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