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Judgment
This is an appeal by the Official Assignee from the order of Coutts Trotter, J, on a garnishee summons. The first objection taken is that the
appeal is filed out of time. The Official Assignee was represented by attorney who claimed the same privileges as to stamp duty as the Official
Assignee has by virtue of Section 115 of the Presidency Towns Insolvency Act.
This was apparently disputed in the Insolvency office and claim was made upon the Official Assignee''s attorney for stamp duty for copy of the
order appealed against and the attorney ultimately paid it to save time. But the question before us is whether the attorney as representing the
Official Assignee has any stamp duty to pay. If not, the appeal is in time. As pointed out by Mr. A. Krishnasawmy Aiyar the wording of Section
115 is no doubt taken from the English Insolvency Act, and it was no doubt framed with reference to English practice. But at the same time it was
to be applied to the practice obtaining in this Court. Now Section 115 says, "" No stamp duty or fee shall be chargeable for any application made
by the Official Assignee to the Court under this Act or for the drawing and issuing of any order made by the Court on such application."" The
application for a copy appears to be either an application made to the Court or an application for the issue of an order made by the Court on the
application, because the only method of issuing orders which is known to us here is the issue of a copy. Therefore we are of opinion that the
appeal is within time.
The question in the appeal is whether the garnishee was entitled to a banker''s lien in respect of advances made by him on various packets of
diamonds deposited with him. The first question is whether he was a banker. Mr. A. Krishna-sawmy Aiyar has called our attention to an Irish
case. In Re Shields Estate (1901) 1 I Rep 172 in which the question was whether the party there was a banker. In this case we have evidence
given that this garnishee who is a Nattukottai Chetti does banking business and money-lending business, that he has customers who deposit money
with him who keep pass-books and come with these pass-books and draw money, that he pays interest on their deposits, and that he buys and
sells hundis and lends money on securities. There is abundant evidence that in this particular case the garnishee did carry on banking business, and
further than that it is peifectly general knowledge, and we have recognised it in Vallayappa Chettiar v. Annamalai Achi (1917) 6 L. W. 687 and
Annamalai Chetti v. Anna malai Chetty (1919) 10 L.W. 67 that these Nattukottai Chetties are really the Indian Bankers of this part of the country.
There is therefore no reason why the garnishee in this case should not be entitled to a banker''s lien. u/s 171 of the Indian Contract Act, bankers
may in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them ; and we agree
with the learned Judge that the Official Assignee in this case has failed to show any contract to the contrary. What he has shown is that various
advances were made from time to time, on the security of deposits of diamonds and that the diamonds so deposited were redeemed from time to
time. But it also appears that loans were made without any deposit of diamonds at all which are iucluded in the same account. The garnishee''s
affidavit also shows that all the diamonds were the subject of a sort of second pledge to another creditor. There is no reason for differing from the
learned Judge in his conclusion that a contract to the contrary has not been proved.
In the result the appeal fails and is dismissed with costs