{"id":18341,"date":"1969-09-17T00:00:00","date_gmt":"1969-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/punjab-national-bank-limited-vs-bikram-cotton-mills-anr-on-17-september-1969"},"modified":"2018-08-14T15:42:13","modified_gmt":"2018-08-14T10:12:13","slug":"punjab-national-bank-limited-vs-bikram-cotton-mills-anr-on-17-september-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/punjab-national-bank-limited-vs-bikram-cotton-mills-anr-on-17-september-1969","title":{"rendered":"Punjab National Bank Limited vs Bikram Cotton Mills & Anr on 17 September, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Punjab National Bank Limited vs Bikram Cotton Mills & Anr on 17 September, 1969<\/div>\n
Equivalent citations: 1970 AIR 1973, \t\t 1970 SCR (2) 462<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nPUNJAB NATIONAL BANK LIMITED\n\n\tVs.\n\nRESPONDENT:\nBIKRAM COTTON MILLS & ANR.\n\nDATE OF JUDGMENT:\n17\/09\/1969\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nGROVER, A.N.\n\nCITATION:\n 1970 AIR 1973\t\t  1970 SCR  (2) 462\n CITATOR INFO :\n D\t    1982 SC1497\t (7)\n\n\nACT:\n    Contract  Act 1872, s. 126--Company\t director  executing\nbond to repay 'ultimate\t balance'  found  due  from  company\nto   Bank  on  cash-credit   account--Simultaneously   other\ndocuments   executed  by company  undertaking  repayment--If\nbond  indemnity or contract, of guarantee--Whether  suit  by\nBank   prior  to  determination\t of  ultimate  balance\t was\npremature.\n    Companies  Act,  1956,  s.\t391--Scheme  of\t composition\nbetween\t company  and creditors--If  binding  on  dissenting\ncreditors.\n\n\n\nHEADNOTE:\n    The\t first\trespondent  company   opened  a\t cash-credit\naccount\t with\tthe appellant bank and on June\t7,  1953  to\nsecure\trepayment   of the balance due at the  foot  of\t the\naccount\t  the  first  respondent  company   executed   three\ndocuments  through  its managing agents\t i.e.  a  promissory\nnote,  a  deed of hypothecation and a  letter  assuring\t the\nappellant   bank  that\tthe  company  would  remain   solely\nresponsible  for  all loss, damage or deterioration  of\t the\nstocks\thypothecated  with  the bank. On the same  day\tR  a\nDirector  of  the  managing agents executed  a\tbond  called\n\"agreement  of\tguarantee' agreeing to pay  on\tdemand\t all\nmonies\twhich may be due as the \"ultimate balance\" from\t the\ncompany\t to the bank.  In December, 1953 the company  closed\nits business.  The stocks pledged  were disposed of by\t the\nbank  and the amount realised was credited in the  company's\naccount.  A balance of approximately Rs. 2.56 lakhs remained\ndue at the foot of the account.\n    Some  creditors of the company in the meantime  filed  a\npetition  for winding up the company.  On February 22,\t1956\na scheme of composition was settled among the creditors\t and\nwas later sanctioned by the High Court On May 21, 1956 under\nsection 391 of the Companies  Act,  1956 after rejecting the\nopposition  of\tthe appellant bank.  The bank then  filed  a\nsuit against the company and R for a declaration that on the\ndate  of  the  suit a sum of over Rs.  2.56  lakhs  was\t due\nagainst\t the  company and for a decree for  payment  of\t the\namount\tagainst R.  The trial  court dismissed the suit\t and\non  appeals  filed by both the parties the High\t Court\theld\nthat  the  scheme having been confirmed by  the\t court,\t had\nstatutory  operation  and  was\tbinding\t on  all   creditors\nincluding  the\tbank;  the  bank  had  become  an  unsecured\ncreditor  for  the amount remaining due after  sale  of\t the\npledged goods and it was for the board of trustees under the\nScheme to determine the amount for payment to the bank.\t The\ncourt  also held that the suit against the  company  without\nobtaining  leave of the\t court\twas  not  maintainable.\t  It\nfurther\t held that R had executed  an  indemnity   bond\t and\nthat  even assuming he was a surety under the terms  of\t the\nbond  he  was only responsible for ensuring payment  of\t the\n\"ultimate  balance\" which still had to be  determined.\t The\nHigh  Court accordingly confirmed  the decree of  the  trial\ncourt and held that the suit against R was premature.\nOn appeal to this Court,\n    HELD:  (i) The suit must be remanded to the trial  court\nto  determine  \"the  ultimate  balance\"\t and  for   disposal\naccording to law.\n   463\n    The appellant bank was entitled to claim at any time the\nmoney  due  from the company as well as from  R.  under\t the\npromissory note and the bond.  The suit could not  therefore\nbe  said  to  be  premature.   The  High  Court\t instead  of\ndismissing the suit should have stayed it till \"the ultimate\nbalance\"  due to the bank from the company  was\t determined.\n[471 E-F]\n    (ii) The binding obligation created under a\t composition\nunder  s.  391\tof the Companies  Act,\t1956,  'between\t the\ncompany\t and its creditors does not affect the liability  of\nthe  surety  unless  the contract  of  suretyship  otherwise\nprovides. [471 F-G]\n    Halsbury's Laws of England, Vol. 63 rd. Edn., Art.\t1555\nat  p.\t 771;  Re. Garner's Motors Lid,.  [1937]  Ch.  59'4;\nreferred to.\n    (iii)  The\tbond  executed\tby R was  one  of  the\tfour\ndocuments  executed  on the same day and was  part   of\t the\nscheme\t to ensure  payment of the amount found due  to\t the\nBank.\tAlthough  the  bond was not  also  executed  by\t the\ncompany, the 'fact that it was executed simultaneously\twith\nthe  other  documents and the conduct of R as  well  as\t the\ncompany indicated that R agreed to guarantee payment of\t the\ndebt  due by the company.  It must be held,  therefore\tthat\nthe  Bank, the company and R were parties to  the  agreement\nunder which for the dues of the company, R became a  surety.\n[470 A-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1957\t and
\n1958 of 1966.\n<\/p>\n
    Appeal  by\tspecial leave ,from the judgment  and  order
\ndated September 6, 1965 of the Allahabad High Court, Lucknow
\nBench in First Civil Appeals Nos. 62 and 71 of 1957.
\n    H.R.  Gakhale, M.M. Kshatriya and G.S.  Chatterjee,\t for
\nthe. appellant (in both the appeals).\n<\/p>\n
    M.C. Chagla, A.K. Verma, B. Datta and 1. B.\t Dadachanli,
\nfor the respondents (in both the appeals).
\nThe Judgment of the Court was delivered by
\n    Shah,  J. Ranjit Singh was a director of Ranjit Singh  &
\nSons.  Ltd.–which acted as a Managing Agent of Shri  Vikram
\nCotton Mills Ltd. Shri Vikram Cotton Mills Ltd.–hereinafter
\ncalled\tthe Company, opened a cash-credit account  with\t the
\nPunjab National Bank, and to secure repayment of the balance
\ndue  at\t the  foot  of the account on  June  27,  1953\tfour
\ndocuments  were\t executed-three by the\tManaging  Agents  on
\nbehalf\tof the Company and one by Ranjit Singh.\t The  three:
\ndocuments   executed  by  the  Managing\t Agents\t  were\t (i)
\npromissory  note for Rs. 13,00,000\/-  payable with  interest
\nat  the\t rate of 21\/2% over the Reserve Bank of\t India\trate
\nwith a minimum rate of 6% per annum  until  payment; (ii)  a
\ndeed of hypothecation of  goods\t described in  the  Schedule
\nannexed\t to  the  document; (iii) a  letter   to   the\tBank
\nagreeing  that\tduring the  continuance\t of  the   agreement
\nevidenced  by the letter of hypothecation, the Company\twill
\nremain\t solely\t responsible  for  all\tloss,\t damage\t  or
\ndeterioration  of   the\t securities delivered  to  the\tBank
\ncaused by theft, fire, rain, robbery.\n<\/p>\n
464<\/span><\/p>\n
dacoity\t or  by any other cause\t whatsoever.   Ranjit  Singh
\nexecuted a deed called an “agreement of guarantee”  agreeing
\nto  pay on demand all monies which may be due  as  “ultimate
\nbalance” from the Company to the Bank.\n<\/p>\n
    In December 1953 the Company closed its  business.\t The
\nstocks\tpledged\t were  disposed of by  the  Bank   and\t the
\namount realised was credited in the account of the  Company.
\nThe  Bank  claimed  that  an  amount  of  Rs.  2,56,877\/12\/6
\nremained due at the foot of the account.\n<\/p>\n
    Some creditors of the Company had in the meantime  filed
\npetition in the High Court of Allahabad for an order winding
\nup  the\t Company.   On\tFebruary  22,  1956,  a\t scheme\t  of
\ncomposition was settled among the creditors that  the  total
\nliability  of  the Company was Rs. 34,45,197-11-2  and\t the
\ntotal  assets  of the Company were Rs.\t5,00,000,  that\t the
\nCompany\t was desirous of confirming “a lease agreement”\t and
\nthat  in order to safeguard the rights and interests of\t the
\nCompany and its\t unsecured creditors the Company had entered
\ninto  an   agreement   with  the  lessee.   The\t scheme\t was
\nsanctioned by order of the High Court of Allahabad dated May
\n21,  1956 under s. 391 of  the\tIndian Companies  Act,\t1956
\nafter rejecting the opposition of the Bank,
\n    The\t Bank  then filed a suit in the Court of  the  Civil
\nJudge.\tMalihabad, Lucknow, against the Company\t and  Ranjit
\nSingh for a  declaration  that\ton  the\t date  of  the\tsuit
\na  sum\tof Rs. 2,56,877-12-6 was due against the Company and
\nfor a decree for payment of that amount against Ranjit Singh
\nwith  costs and interest pendente lite.\t In a joint  written
\nstatement  it was contended, inter alia, that  Ranjit  Singh
\nwas “only a guarantor and not a co-debtor” and that he could
\nbe  made liable only in case of default by the Company,\t and
\nsince  the  Company had made no\t default–the  suit  against
\nRanjit Singh was not maintainable.\n<\/p>\n
Certain\t preliminary issues were raised by the\tTrial  Judge
\nat  the hearing of the suit out of which the  following\t are
\nrelevant:\n<\/p>\n
“(1)  Whether the plaintiff (Bank) is not entitled  to\tfile
\nthis  suit  as\tagainst the  defendant No. 1  (the  Company)
\nwithout obtaining the leave of the Company Judge as  alleged
\n? If so, its effect’?\n<\/p>\n
(2)  Whether the Court has no jurisdiction to decide on\t the
\nmerits\tof  the plaintiff’s claim in view of  the  facts  as
\nalleged in para 12(A) of the written statement ? If so,\t its
\neffect ?\n<\/p>\n
(3)   Whether\tthe  suit   against    defendant    No.\t   2<\/span><\/p>\n
(Ranjit Singh is not maintainable as pleaded under Paras  7,
\n13 and 14 of the written statement ?”\n<\/p>\n
465<\/span><\/p>\n
The  Trial  Court held that the suit  was  not\tmaintainable
\nagainst\t the Company without obtaining leave of the  Company
\nJudge,\tand  also  that the Court had  no.  jurisdiction  to
\nadjudicate  upon the merits of the Bank’s claim,  for  under
\nthe  scheme  the Board of Trustees were\t to  scrutinise\t the
\nclaim  and  their decision was final. In  dealing  with\t the
\nclaim against Ranjit Singh the\tCourt  head that he had\t not
\nmade any default in  payment of the dues and under the terms
\nof  guarantee  the suit was premature against him  as  well.
\nThe Court accordingly dismissed’ the suit.
\n    Two\t appeals  were\tpreferred  to  the  High  Court\t  of
\nAllahabad against the judgments in the suit.  The High Court
\nheld  that a scheme of composition between the\tCompany\t and
\nits creditors confirmed by the Court had statutory operation
\nand  was  binding on all creditors regardless  of  the\tfact
\nwhether\t any  of them agreed or not; that according  to\t the
\nscheme the Bank became an unsecured creditor for the  amount
\nremaining  due after sale of the pledged goods,\t that  under
\ncl.  12\t of the Scheme the amount payable to  the  unsecured
\ncreditors  shall  be  the  principal  amount  due  to\tthem
\ndetermined  by the Board of Trustees, that it was  for\tthe,
\nBoard  of  Trustees to determine the  amount  that  remained
\npayable to the Bank, that though under cI. 16 of the  scheme
\na  creditor may file suits and take appropriate\t steps,\t for
\nthe  limited purpose of establishing their claims  the\tsuit
\nhad  to be filed with the leave of the; Court, and that\t the
\nsuit of the Company without obtaining leave of the Court was
\nnot  maintainable.  The High Court further held that  Ranjit
\nSingh had executed an indemnity bond, and that even assuming
\nthat Ranjit Singh was  a surety it was expressly provided by
\nthe terms of the:  bond\t executed by him that the  guarantee
\nwas  only for ensuring\tpayment\t of  the “ultimate  balance”
\nremaining due to the  Bank on  such  cashcredit account upto
\nthe specified limit, and therefore Ranjit Singh was only  to
\npay “the ultimate balance” which might be found due  against
\nthe  Company  after  “taking  into  account  all  dividends,
\ncompositions and payments etc  as payments in gross  towards
\nthe  debt”,  that the Bank’s dues could\t be  recovered\tfrom
\nRanjit\tSingh upon default in payment by the Company of\t the
\nultimate  balance after scrutiny by the Board  of  Trustees,
\nand  that  the “proper stage for commencing a  suit  against
\nRanjit Singh was after the ultimate liability of the Company
\nwas  determined\t by the Board of Trustees  and\tthe  Company
\ncommitted default in  payment”.\t  The High Court accordingly
\nconfirmed  the decree of the Trial Court even in  favour  of
\nRanjit\tSingh\tWith special leave  granted by\tthis  Court,
\nthese two appeals have been preferred by the Bank.
\n    The Bank claimed a mere declaration against the  Company
\nand not a decree for payment of the amount due\t Section 391
\nof  the\t Companies  Act, 1956, insofar\tas  it\tis  material
\nprovides:\n<\/p>\n
\t      “(1  )  Where a compromise or  arrangement  is
\n\t      proposed–\n<\/p><\/blockquote>\n
\t      466<\/span><\/p>\n
\t       (a) between a company and its creditors or an
\n\t      class of them; or\n<\/p><\/blockquote>\n
\t\t (b)  between a company and its\t members  or
\n\t      any class\t of them;\n<\/p><\/blockquote>\n
\t      the  Court  may,\ton the\tapplication  of\t the
\n\t      Company  or of any creditor or member  of\t the
\n\t      Company, or, in the case of a company which is
\n\t      being  wound  up, of the liquidator,  order  a
\n\t      meeting\tof   the  creditors  or\t  class\t  of
\n\t      creditors,  or  of  the members  or  class  of
\n\t      members,\tas the case may be, to\t be  called,
\n\t      held and conducted in such manner as the Court
\n\t      directs.\n<\/p><\/blockquote>\n
\t\t  (2)  If a majority in number\trepresenting
\n\t      threefourths  in\tvalue of the  creditors,  or
\n\t      class  of creditors, or members, or  class  of
\n\t      members,\tas  the\t case may  be,\tpresent\t and
\n\t      voting either in person or,  where proxies are
\n\t      allowed by proxy, at the meeting, agree to any
\n\t      compromise or arrangement, the  compromise  or
\n\t      ‘arrangement  shall,  if\tsanctioned  by\t the
\n\t      Court,  be binding on all the  creditors,\t all
\n\t      the  creditors of the class, as the  case\t may
\n\t      be, and also  on the, company, or, in the case
\n\t      of  a company which is being wound up, on\t the
\n\t      liquidator and contributories of the company:
\n\t      Section 392(1) provides:\n<\/p><\/blockquote>\n
\t\t    “Where a High Court makes an order under
\n\t      section  391  sanctioning a compromise  or  an
\n\t      arrangement in respect of a  company, it-\n<\/p><\/blockquote>\n
\t\t  (a)  shall  have power  to  supervise\t the
\n\t      carrying out of the compromise or arrangement;
\n\t      and
\n\t\t  (b  )\t may, at the time  of  making\tsuch
\n\t      order  or\t at any time thereafter,  give\tsuch
\n\t      directions  in  regard to any matter  or\tmake
\n\t      such   modifications  in\tthe  compromise\t  or
\n\t      arrangement  as it may consider necessary\t for
\n\t      the  proper   working  of\t the  compromise  or
\n\t      arrangement.”\n<\/p><\/blockquote>\n
In  the\t present case a meeting of creditors of the  Company
\nwas  held in which a majority in number representing  three-
\nfourths\t in value of the creditors agreed to the  scheme  of
\ncomposition and the court rejected  objection raised by\t the
\nBank and sanctioned the scheme\t The scheme was binding upon
\nthe Bank and  the rights and obligations of the Bank had  to
\nbe worked out under the scheme.\n<\/p>\n
  467<\/span><\/p>\n
    In\treaching  its conclusion that the bond\texecuted  by
\nRanjit\tSingh in favour of the Bank was of the nature  of  a
\ncontract of’ indemnity and not a contract of guarantee,\t the
\nHigh  Court  was  impressed by\tthe  circumstance  that\t the
\nCompany\t was not a party to the bond, and that the bond\t was
\nonly  a\t bilateral  agreement between the Bank\t and  Ranjit
\nSingh
\n    Section  124  of  the  Indian  Contract  Act  defines  a
\n“contract  of  indemnity”   A contract by  which  one  party
\npromises  to save the other from loss caused to him  by\t the
\nconduct\t of the promiser himself, or by the conduct  of\t any
\nother person, is called a “contract of indemnity”.   Section
\n126 defines a “contract\t of guarantee”.\t It states:\n<\/p>\n
\t\t  “A  ‘contract of guarantee’ is a  contract
\n\t      to  perform  the\tpromise,  or  discharge\t the
\n\t      liability,  of  a\t third person in case of his
\n\t      default.\tThe  person who\t gives the guarantee
\n\t      is called the ‘surety’: the person in  respect
\n\t      of  whose\t default the guarantee is  given  is
\n\t      called the ‘principal debtor’, and the  person
\n\t      to  whom the guarantee is given is called\t the
\n\t      ‘creditor’.   A  guarantee may be either\toral
\n\t      or written”.<\/p><\/blockquote>\n
    A promise to be primarily and  independently liable\t for
\nanother\t person’s   conduct  may amount\t to  a\tcontract  of
\nindemnity   A contract of guarantee requires concurrence  of
\nthree  persons-the  principal debtor, the  surety   and\t the
\ncreditor–the\tsurety\tundertaking  an\t obligation  at\t the
\nrequest\t express  or implied of the principal  debtor.\t The
\nobligation  of the surety  depends  sub-‘ stantially on\t the
\nprincipal  debtor’s default; under a contract  of  indemnity
\nliability  arises  from loss caused to the promisee  by\t the
\nconduct\t of  the  promisor himself or  by  the\t conduct  of
\nanother person
\n    In\tthe  present case the Company did  not\texecute\t the
\nbond   But  the bond executed by Ranjit Singh was    one  of
\nfour   documents executed on June 27, 1953  It was  part  of
\nthe  scheme to ensure payment of the amount due at the\tfoot
\nof  the\t cash-credit  account in favour of  the\t Bank\t The
\nCompany\t executed by  its managing agents–(i) a  promissory
\nnote;  (ii)  a\tdeed of hypothecation; and  (iii)  a  letter
\nassuring  the  Bank  that the  Company shall  remain  solely
\nresponsible  for  all loss, damage or deterioration  to\t the
\nstocks\thypothecated with the Bank.  The Bank also  insisted
\nupon a promise by some other person to pay the\tdebt, and as
\na  part of the same arrangement Ranjit\tSingh  executed\t the
\nbond  on  which the suit is field.  The bond  was  expressly
\ncalled\tan  “agreement of guarantee”:  it was  also  recited
\ntherein that Ranjit Singh guaranteed to the Bank, payment on
\ndemand\tof  all monies which may at any time be due  to\t the
\nBank from the Company on the general balance of that account
\nwith the Bank,
\n468<\/span>
\nthat the guarantee was to be a continuing guarantee for\t the
\nultimate balance which shall remain due to the Bank on\tsuch
\ncashcredit  account.   In  the\twritten\t statement  it\t was
\nadmitted  that Raniit Singh was a guarantor. The bond, it is
\ntrue,  did  not expressly recite that the Company  was\t the
\nprincipal   debtor; it is also true and the Company did\t not
\nexecute\t the   bond.  But  a contract of  guarantee  may  be
\nwholly written, may be wholly oral, or may be partly written
\nand  partly oral.  The documents which secured repayment  of
\nthe Bank’s claim at the\t foot of the cashcredit account were
\nexecuted simultaneously:  the bond executed by Ranjit  Singh
\nwas  one  of them and the conduct of Ranjit  Singh  and\t the
\nCompany\t indicates  that Ranjit Singh  agreed  to  guarantee
\npayment of the debt due by the Company.\t We hold, therefore,
\nthat the Bank, the Company and Ranjit Singh were parties  to
\nthe  agreement\tunder  which for the dues  of  the  Company,
\nRanjit Singh became a surety.\n<\/p>\n
    The\t extent of the liability of Ranjit Singh  under\t the
\nterms  of the bond must, therefore, be determined.   Section
\n128 of\tthe Indian Contract Act provides that the  liability
\nof  the\t surety is coextensive with that  of  the  principal
\ndebtor, unless it is otherwise provided by the contract.  It
\nis necessary, therefore, to consider whether in the terms of
\nthe bond there is anything which shows that the liability of
\nthe  surety is not co-extensive with that of  the  principal
\ndebtor.\t Certain clauses of the bond are relevant:\n<\/p>\n
\t\t “( 1 ) In consideration of your Bank at  my
\n\t      request  allowing an accommodation  by way  of
\n\t      cash  credit  and\t D\/D limits  to\t  M\/s.\tS.V.
\n\t      Cotton Mills Ltd , at Lucknow Branch, I, in my
\n\t      personal capacity hereby guarantee to  you the
\n\t      payment  on demand of all monies which may  at
\n\t      any time be due to you from M\/s. S.V.   Cotton
\n\t      Mills  Ltd.,  on the general balance  of\tthat
\n\t      account with your Bank.\n<\/p><\/blockquote>\n
\t      (2)  I  declare that this guarantee  shall  be
\n\t      continuing   guarantee   and  shall   not\t  be
\n\t      considered as cancelled or in any way affected
\n\t      by  the fact that at any time the\t said  cash-
\n\t      credit  and D\/D account may show no  liability
\n\t      against  the  borrower, or  may  even  show  a
\n\t      credit  in favour of the\tborrower, but  shall
\n\t      continue in operation in respect of subsequent
\n\t      transactions”.\n<\/p><\/blockquote>\n
\t      “(4)  I  further declare that  all  dividends,
\n\t      compositions,\tpayments  received  by\t you
\n\t      from   the   said\t    borrower  or  any  other
\n\t      person or persons\t liable\t\t   or his or
\n\t      their  representatives  shall  be\t taken\t and
\n\t      applied  as  payment in  gross   without\t any
\n\t      right
\n\t      469<\/span>
\n\t       on  the part of myself or my   representative
\n\t      to  stand\t in your place in respect of  or  to
\n\t      claim  the  benefit  of  any  such  dividends,
\n\t      compositions   or payments, until full  amount
\n\t      of all your  claims against the said  borrower
\n\t      or his\/their representatives which are covered
\n\t      by  this, guarantee shall have been  paid\t and
\n\t      that this guarantee shall apply to and  secure
\n\t      ultimate balance which shall remain due to you
\n\t      on such cash-credit account upto the extent of
\n\t      Rs. 13,00,000.<\/p><\/blockquote>\n
\t\t“(8)  I also agree that the Bank   shall  be
\n\t      entitled\tto\t  recover  its\tentire\tdues
\n\t      under  the said  cash-credit\t     account
\n\t      from  my\tperson or property upon\t default  in
\n\t      payment by the said borrower”.\n<\/p><\/blockquote>\n
By  clause  4  it is expressly\tstipulated   that  the\tbond
\nsecured\t “the ultimate balance” remaining due to  the  Bank.
\nTherefore,   unless  and  until\t the  ultimate\tbalance\t  is
\ndetermined  no liability on Ranjit Singh to pay\t the  amount
\narises,\t and it is common ground that the  ultimate  balance
\ndue  is not determined.\t The suit was for a decree  for\t Rs.
\n2,56,877\/12\/6,\tbut the claim against Ranjit Singh could  be
\ndecreed\t only for the amount remaining due as  the  ultimate
\nbalance under cls. 4 and 5 of the bond.\n<\/p>\n
We  are, however, unable to agree with the High\t Court\tthat
\nthe suit filed was premature.  The Bank was under the  terms
\nof  the bond executed by Ranjit Singh entitled to, claim  at
\nany  time the money due from the Company as well  as  Ranjit
\nSingh  under  the promissory note and the  bond.   The\tsuit
\ncould  not,  therefore, be said to be premature.   The\tHigh
\nCourt  instead of dismissing the suit should have stayed  it
\ntill  “the  ultimate  balance” due to\tthe  Bank  from\t the
\nCompany\t was  determined.  We deem it necessary\t to  observe
\nthat a binding obligation created under a composition  under
\ns. 391 of the Companies. Act, 1956, between the; Company and
\nits  creditors does not affect the liability of\t the  surety
\nunless\tthe contract of suretyship otherwise  provides.\t  As
\nobserved  in Halsbury’s. Laws of England, Vol. 6, 3rd  Edn.,
\nArt.  1555   at p. 771:\n<\/p>\n
      “A scheme need not expressly reserve the rights of any
\ncreditors  against  sureties for debts; of the\tcompany,  as
\nsuch rights are unaffected by a scheme”.\n<\/p>\n
It  was held in Re. Garner’s Motors Ltd.(1) that the  scheme
\nwhen  sanctioned by the Court has a statutory operation\t and
\nthe  scheme does not release other persons not\tparties.  to
\nthe scheme from their obligations.’
\n(1)  [1937] Ch. 594.\n<\/p>\n
up. CI\/70–18
\n470<\/span>
\n    The High Court, in our judgment, should have stayed\t the
\nsuit and after “the ultimate balance” due by the Company was
\ndetermined  the\t Court should have proceeded to\t decree\t the
\nclaim according to the provisions of cl. 4 of the bond.
\n    We\taccordingly  modify the decree passed by  the  Trial
\nCourt  and declare that the rights of the Bank\tagainst\t the
\nCompany\t are governed by the scheme: sanctioned by the\tHigh
\nCourt  of Aliahabad in Company Case No. 16 of 1956 by  their
\njudgment  dated\t May 21, 1956.\tLiability  of  Ranjit  Singh
\nbeing  only for payment the ultimate balance’ which  remains
\ndue  on the  cash-credit account with the Bank in favour  of
\nthe Company.  The Court will, when such ultimate balance  is
\ndetermined, proceed to pass a decree in favour of the Bank.
\n    Ranjit  Singh has filed an affidavit in this Court\tthat
\nin  accordance with the scheme the total  amount due to\t the
\nBank   was  determined\tat Rs. 41,536\/7\/3  as  the  ultimate
\nbalance\t  and  a cheque for Rs. 35,721 was sent to the\tBank
\non  October  6,\t 1956  being 25% plus  the  other  pro\trate
\npayments  allowed  ‘by\tthe Trustees to creditors,  but\t the
\nBank  did not cash  the\t cheque. Thereafter by letter  dated
\n‘October  28, 1966, the Bank requested that a  fresh  cheque
\nbe  issued  to them.  Accordingly  a  fresh cheque  for\t Rs.
\n38,047-46  was\tissued\tto the Bank  on\t November  5,  1966,
\ncomprising  Rs. 35,721 on the basis of the old\tcheque\tplus
\nRs. 2,326-46 sanctioned for pro rate payment to the Bank  by
\nthe Trustees  on  November  3,\t1966  at  the  rate  of\t 50%
\nof the then balance due.  Thereafter another cheque for\t Rs.
\n1,744.50  being 50% of the  amount  then  due to   the\tBank
\nwas  also  forwarded to the Bank on  January  29,  1968,  in
\npursuance  of another pro rate payment resolution passed  by
\nthe Trustees and the balance now due to the Bank out of\t the
\noriginal  amount  is Rs. 1,744.09 only.\t We  are  unable  to
\ninvestigate the correctness of these averments.
\n    The decree passed by the High Court is set aside and the
\nsuit be remanded to the Trial Court to be disposed of in the
\nlight of the observations made in this judgment.  There will
\nbe  no\torder  as to costs in the High\tCourt  and  in\tthis
\nCourt.\tCosts in the Trial Court will be costs in the suit.
\nR.K.P.S.\n<\/p>\n
Suit remanded.\n<\/p>\n
471<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Punjab National Bank Limited vs Bikram Cotton Mills & Anr on 17 September, 1969 Equivalent citations: 1970 AIR 1973, 1970 SCR (2) 462 Author: S C. Bench: Shah, J.C. PETITIONER: PUNJAB NATIONAL BANK LIMITED Vs. RESPONDENT: BIKRAM COTTON MILLS & ANR. DATE OF JUDGMENT: 17\/09\/1969 BENCH: SHAH, J.C. BENCH: SHAH, J.C. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-18341","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPunjab National Bank Limited vs Bikram Cotton Mills & Anr on 17 September, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/punjab-national-bank-limited-vs-bikram-cotton-mills-anr-on-17-september-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Punjab National Bank Limited vs Bikram Cotton Mills & Anr on 17 September, 1969 - 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