Agencia Commercial Internationalltd.
& Ors Vs. Custodian of The Branches of Banconacional Ultramarino  INSC
59 (30 July 1982)
REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)
CITATION: 1982 AIR 1268 1983 SCR (1) 16 1982
SCC (2) 482 1982 SCALE (1)575
Banking law and practice - Liberation of Goa
and other areas from Portuguese rule and integration with India - Head office
of the bank removed all documents to Lisbon on the eve of liberation -
President promulgated regulations constituting an independent bank - Custodian
empowered to realise all debts - Agreements entered into and loans granted by
head office in Lisbon - Custodian - If could recover debts - Position in
banking law and practice discussed - Promissory notes and bills of exchange if
necessary to be produced at the time of recovery of debts.
The Banco Nacional Ultramarino (B.N.U.) with
its head office at Lisbon in Portugal carried on banking business in Goa, Daman
and Diu. On the eve of the liberation of these territories from Portuguese rule
and their integration with India the B.N.U. removed a substantial portion of
valuable assets held there to its head office at Lisbon.
To relieve the distress closure to the people
by reason of the closure of the B.N.U. the President promulgated regulations by
which the branches at these places were integrated into a fully constituted
bank independent of the B.N.U. and a Custodian was appointed to take charge of
the bank. The Custodian was empowered to realise all debts due to the branches
including any debts from the head office of the B.N.U.
The Custodian filed a suit against the
appellants stating that the loan accounts of the appellants showed a debit
balance in favour of the branch. It was also stated that the promissory notes
were not in his possession but that they could be presumed to have been removed
to Portugal. While suits similar in nature filed in some courts had been
dismissed, suits filed in other courts were decreed against the original debtor
as well as the guarantor and surety.
The Additional Judicial Commissioner on
appeal decreed the suits against the appellants and granted the reliefs claimed
by the Custodian, holding that the 17 Custodian was entitled to maintain the
suits and sue for the realisation of debts arising out of the transactions
entered into through the branches. He further hold that the execution of the
negotiable instruments having been admitted in the written statement and these
documents having been removed by the B.N.U. to Lisbon there was nothing to
preclude the Custodian from claiming relief without producing those negotiable
In appeal to this Court, it was contended on
behalf of the appellants that since the loans had been granted by the head
office of the B.N.U. and not its branches, the Custodian was not entitled to
sue for recovery of loans granted by the head office.
Dismissing the appeals,
HELD: The transactions under consideration
fell within the scope of the regulations and the Custodian was fully entitled
to sue for the recovery of the debts covered by the loan agreements. [28 C] It
is settled law that a body corporate and its branches are not distinct and
separate entities from each other, that the branches constitute mere components
through which the corporate entity expresses itself and that all transactions
entered into ostensibly with the branches are in legal reality transactions
with the corporate body and that it is with the corporate body that a person
must deal directly. In the case of a bank which operates through its branches,
however, the branches are regarded for many purposes as separate and distinct
entities from the head office and from each other. If the bank wrongly refuses
to pay when a demand is made at the proper place and time, then it can be sued
at its head office as well as at its branch office the reason being that the
action is then not on the debt, but on the breach of the contract to pay at the
place specified in the agreement. The regulations had been made apparently in
the light of this banking law and practice.
[24 B-C; 25 B] The Delhi Cloth and General
Mills Co. Ltd. v. Harnam Singh and others,  2 SCR 402 at 422, referred
The regulations were intended to achieve what
emergency legislation was designed to secure. In all such emergency laws there
is a departure from the general rule that the branches and agencies of a
business are no more than components through which the entire enterprise is
carried on and that they cannot be considered as distinct and separate from the
head office. [26 A-B] It is abundantly plain from the object and purpose of the
regulations and the provisions which seek to realise them that all transactions
effected by or through the branches of the B.N.U. were intended to be brought
within the compass of the Regulations. [26 D] New York Life Insurance Co. v.
Public Trustee,  2 Ch. 101; In re: W. Hagelberg Aktien - Gesellschaft,
1916 Chancery Division 503 and Re The Banca Commercial Italiana,  1 All
England Law Reports 480, referred to.
18 In the instant case although the loan
agreements might have been entered into with the B.N.U, the branches were
authorised by the head office to give effect to those agreements and
accordingly the branch concerned embarked upon the execution of the agreements
and the working out of the transactions. The entire business involved in those
transactions and dealings was effected by the branch concerned and it was only
when occasion strictly so required that the branch made reference to the head
office for authority to amend or enlarge the scope of the operation.
The transaction and the business nonetheless
remained throughout those of the branch and this is fully affirmed by the
existence and operation of the loan accounts in the books of the branch by the
pledge or hypothecation of goods in almost all cases in favour of the branch
and by the overall nature and character of the transaction as an ordinary
banking transaction falling within the normal business of a branch. [26 E-F]
The discharge of the debts under the Regulation amounted to their complete
discharge and it was not open to anyone else to sue for their recovery. No
indemnity was required to be furnished by the Custodian on the ground that the
relevant documents could not be produced. Having regard to the circumstances of
this case it was within the competence of The Court to base its decree on the
books of account of the branches in Goa and on other evidence. The Portuguese
law stands superseded by reason of the express provisions of regulation 8 (1).
[31 A] The Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh and others,
 2 SCR 402, 425, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 2475 to 2477 and 2579 of 1969 From the judgment and order dated the 15th
April, 1969 of the Judicial Commissioner's Court at Goa, Daman and Diu in Civil
Appeal Nos. 3217, 3334/64 and 3466 of 1965 and 3467 of 1965.
V.M. Tarkunde, Bernardo Doss Reis and Naunit
Lal for the Appellants in CA. 2476/69.
S.D. Tamba, Girish Chandra and Miss A. Subhashini,
for the Respondents.
The Judgment of the Court was delivered by
PATHAK, J. These appeals by certificate granted by the Additional Judicial
Commissioner of Goa, Daman and Diu arise out of suits for the recovery of loans
made to the appellants at various branches of the Banco Nacional Ultramarino in
Goa during Portuguese rule, 19 The territories, of Goa, Daman and Diu
constituted the Estado de India of the sovereign State of Portugal. The Banco
Nacional Ultramarino (the National overseas Bank) with its Head office at
Lisbon in Portugal, carried on banking business in Goa at different Branches,
some of them being situate at Vasco Da Gama, Margao and Panjim. It was also a
currency issuing Bank and discharged the functions of a Government Treasury. It
issued Portuguese currency notes in Goa, and in its banking capacity it
received deposits and granted loans.
On December 20, 1961 the territories of Goa,
Daman and Diu were liberated from Portuguese rule and integrated with India. On
the eve of the transfer of power the Banco Nacional Ultramarino closed its
Branches at Goa and removed a substantial portion of the valuable assets held
there to its Head office at Lisbon and to other places overseas.
To provide for the administration of the
liberated territories the President of India promulgated the Goa, Daman and Diu
(Administration) ordinance, 1962, which on March 27, 1962 was replaced by Goa,
Daman and Diu (Administration) Act, 1962 enacted by Parliament. By virtue of
sub-s. (1) of s. 5 of the Act all laws in force immediately before "the
appointed day" (December 20, 1961) in Goa, Daman and Diu were to continue
to be in force therein until amended or repealed by a competent legislature or
other competent authority.
The clo sure of the Branches of the Banco
Nacional Ultramarino at Goa gave rise to considerable confusion. It was
necessary to take measures for the exchange of over nine crore rupees worth of
Portuguese currency notes for Indian currency, and likewise to provide for the
repayment of moneys and the return of valuables deposited with the Branches. As
the Banco Nacional Ultramarino had closed those Branches no one could operate
on them. To relieve the common confusion and distress, the President of India
promulgated, under Article 240 of the Constitution, the Goa, Daman and Diu
(Banks Reconstruction) Regulation, 1962 (hereinafter referred to as "the Regulation").
Section 3 declared that in view of the closure of the branches and the transfer
of a substantial portion of their assets out of India on or about the
"appointed day" and the difficulties experienced by depositors, the
20 Branches would, as from that day, be reconstructed in the interests of the
general public in accordance with the provisions of the Regulation. An
examination of the provisions which follow shows that the Branches were
integrated into a fully constituted Bank independent of the Banco Nacional
Ultramarino, the purpose being to dispose of the business pending on December
20, 1961, with no fresh business being undertaken, and its functions being
confined to the discharge of existing liabilities and the recovery of existing
debts and other assets with a view to the ultimate winding up of the Bank. A
Custodian was appointed by the Central Government to take charge of the Bank.
The properties and assets as well as the obligations and liabilities of the
Bank stood transferred to and vested in him, and he was empowered to realise
any debts or other amounts due to the said Branches including any debts or
other amounts due from the Head office of the Banco Nacional Ultramarino.
On March 30, 1963, the Custodian filed a suit
in the Court of the Civil Judge at Ilhas, Panaji against the Agencia Commercial
International, its managing partner, Jose Antonio Gouveia and his wife
Geraldina Pereira Gouveia, alleging that the branch of the Banco Nacional
Ultramarino at Panaji had, pursuant to a request of the Agencia, opened a
current account in its favour upto the limit of Escudos 300.000$00 for three
months renewable at 4% interest, 3% fine, 1-1/4% quarterly commission, penal
interest at 6% and court expenses, the loan account being secured by a
promissory note with its maturity date in blank, executed by the Agencia and
guaranteed by the managing partner and his wife. The limit was raised
subsequently, and the excess was also guaranteed by a promissory note with its
maturity date in blank and signed by the defendants. The plaintiff stated that
the loan account showed a debit balance of Escudos 428.612$37, equivalent to
Rs. 71,435.40, in favour of the Panjim branch of the Banco Nacional
Ultramarino, the account being closed on December 20, 1961 and the balance
thereof becoming payable. It was stated further that the promissory notes were
not in the possession of the plaintiff and could be presumed to have been
removed to Portugal. The plaintiff prayed for a joint and several decree
against the defendants for Rs. 71,435.40 with accrued interest, Penal interest,
commission, fine and court expenses.
21 The suit was resisted by the defendants,
principally on the ground that the Banco Nacional Ultramarino was a public
limited company with its head office at Lisbon, that the Branch at Panjim did
not possess a separate juridical personality from the Company and could not be
said to possess assets or liabilities of its own, that transactions by the
Panjim Branch were made under the direct superintendance of the Head office and
credit was granted directly by B the Head office, and that the credit in
question was incorporated in promissory notes lying with the Banco Nacional
Ultramarino which had already informed its debtors that it would take action on
the bills directly or by transferring them to a third party. It was also
pleaded that the debtors could be compelled to pay the credit incorporated in a
promissory note only when the creditor returned the promissory note for
payment, so that future duplication of payment would be avoided. The defendants
asserted that Escudos 25,794$45, equivalent to Rs. 4,234.09, had been entered
to their credit in the Bank account and that they were entitled to a set-off.
The plaintiff filed a replication to the written statement of the defendants,
and the defendants followed with a rejoinder. Civil suits were also filed by
the Custodian against other defendants in respect of similar transactions, and
a substantially similar defence was set up in all of them. The suits were
instituted in the Court of the Civil Judge, Senior Division at Margao.
Some of the suits filed at Margao were tried
by Shri E.S. Silva, Comarca Judge, while the other by Shri Justino Coelho,
Comarca Judge. The preliminary objections to the maintainability of the suits
found favour with Shri Silva, and he dismissed the suits before him altogether.
Sheo Coelho, however, found it necessary to try the suits instituted in his
court on their merits, and he decreed them against the original debtor as well
as the guarantor and surety. The lone suit decided by Shri Ataide Lobo, the
Comarca Judge, Ilhas at Panaji was decreed against the principal debtor but
dismissed against the guarantors.
Ten appeals were filed before the Addl.
Judicial Commissioner. The Additional Judicial Commissioner dismissed the
appeals against - the judgment of Shri Ataide Lobo.
Allowing the appeals against the judgments of
Shri E.S. Silva, he decreed the suits and granted the reliefs claimed by the
Custodian. The appeals against the judgment of Shri Justino Coelho were
dismissed except that the appeal tiled by Amalia Gomes Figueiredo, one of the
guarantors, was allowed and the suit dismissed as against her.
22 The Additional Judicial Commissioner held
that the Regulation effected a reconstruction of the Branches in Goa, Daman and
Diu of the Banco Nacional Ultramarino, that the rights and obligations of the
Branches referred to in the Regulation must be understood to mean the rights
acquired and the obligations undertaken by the Banco Nacional Ultramarino through
those Branches and therefore the Custodian was entitled to maintain the suits
and sue for the realisation of debts arising out of transactions entered into
through those Branches. The Additional Judicial Commissioner also held that as
the execution of the negotiable instruments had been admitted in the written
statements and it was commonly agreed that they were not within the reach of
the Custodian, having been removed by the officers of the Banco Nacional
Ultramarino to Lisbon or elsewhere on December 20, 1961, there was nothing to
preclude the Custodian claiming relief without producing those negotiable
instruments. He also repelled the contention that the bills of exchange and the
promissory notes could on endorsement by the Banco Nacional Ultramarino in
favour of others result in the defendants having to make payment a second time.
He recorded an oral undertaking furnished by the Custodian that in the event of
a decree in such suits the Custodian would render compensation to the defendant
to the extent that the Custodian had made realisation pursuant to the decrees
under appeal. Having regard to Article 53 of the Uniform Law on Bills of
Exchange and Promissory Notes, the Additional Judicial Commissioner held that
the holder had lost his right of recovery against all except the acceptor in
respect of whom, observed the Judicial Commissioner, the suits were within time
in view of Article 70 of the Uniform Law.
Shri V.M. Tarkunde appearing for the
appellants in Civil Appeal No. 2476 of 1969 contends that the loans were
granted by the Head office of the Banco Nacional Ultramarino, and not by the
Branches at Goa, and that as the properties and assets, rights and claims of
the Branches alone vested in the Custodian under the Regulation, the Custodian
was not entitled to sue for recovery of the loans granted by the Head office.
Shri Tarkunde relies on the distinction made by the Regulation between the Head
office and the Branches of the Bank and says that they have been regarded as
separate entities. Shri Tarkunde further says that even if the suits are held
maintainable, the Additional Judicial Commissioner erred in not proceeding
further to determine whether the appellants were 23 entitled to credit for the
adjustments claimed by them in the loan accounts.
Shri Naunit Lal, appearing for the appellants
in Civil Appeals Nos. 2475, 2477 and 2579 of 1979, adopts the submissions of
Shri F.S. Nariman, appearing for the
appellants in Civil Appeals Nos. 2464 to 2468 of 1969, also disputes the maintainability
of the suits. He has strenuously urged that no dichotomy can be envisaged
between the Head of the Banco Nacional Ultramarino and its Branches in Goa, and
it is only the Banco Nacional Ultramarino at its Head office at Lisbon which
can sue for recovery of the debts. Alternatively he contends that even if the
Head office and the Branches can be regarded in law as separate entities some,
if not all, of the loans had been extended directly by the Mead office and in
respect of them, he says, the Regulation cannot be applied. He also urges that
even if all the transactions are held covered by the Regulation, the suits
cannot be decreed as there is no statutory discharge of the appellants'
liability to the Banco Nacional Ultramarino in respect of the debts. The
indemnity offered by the Custodian, he urges, is of no value in law. Another
reason why the suits cannot be decreed, says Shri Nariman, is because the
promissory notes have not been produced.
There has been considerable dispute on the
point whether the transactions were entered into by the Branches of the Banco
Nacional Ultramarino or could be attributed to the Head office at Lisbon. It
seems to us clear from the material on the record that the appellants entered
into the loan agreements with the Banco Nacional Ultramarino, and the Head
office of the Bank at Lisbon authorised the relevant Branch at Goa to give
effect to the agreement. The evidence is clear that the agreements were signed
on behalf of the bank by the Manager of the relevant branch and the loan
accounts were opened by the branches in their books, that payments were made by
the Branches to the appellants, that deposits by way of repayment were made by
the appellants in these accounts maintained by the Branches, and the appellants
pledged or hypothecated their goods in favour of the branches; in short while
the Head office authorised the Branch to execute the agreements the
transactions were regarded for all purposes as transactions pertaining to 24
the respective Branches, to be actually controlled and worked out by them. The
suits, it may be noted, were filed on the basis of the balance recorded in the
accounts books of the relative Branch.
Now it is indisputable as a general
proposition that a body corporate and its branches are not distinct and
separate entities from each other, that the branches constitute mere components
through which the corporate entity expresses itself and that all transactions
entered into ostensibly with the branches are in legal reality transactions
with the corporate body, and it is with the corporate body, that a person must
deal directly. But it is also now generally agreed that in the case of a Bank
which operates through its Branches, the Branches are regarded for many
purposes as separate and distinct entities from the Head office and from each
other. This Court observed in The Delhi Cloth and General Mills Co. Ltd. v.
Harnam Singh and others :(1) "In banking transactions the following rules
are now settled: (1) the obligation of a bank to pay the cheques of a customer
rests primarily on the branch at which he keeps his account and the bank can
rightly refuse to cash a cheque at any other branch: Rex v Lovitt (1912) A.G.
212 at 219, Bank of Travancore v. Dhrit Ram (69 I.A. 1, 8 and 9) and New York
Life Insurance Company v. Public Trustee (1924) 2 Ch. 101, 110 at page 117; (2)
a cumtomer must make a demand for payment at the branch where his current
account is kept before he has a cause of action against the bank: Joachimson v.
Swiss Bank Corporation (1921) 3 K.B. 119 quoted with approval by Lord Reid in
Arab Bank Ltd. v. Barclayas Bank (1954 A.C. 495, 531) The rule is the same
whether the account is a current account or whether it is a case of deposit.
The last two cases refer to a current account; the Privy Council case Bank of
Travancore v. Dhrit Ram (supra) was a case of deposit. Either way, there must
be a demand by the customer at the branch where the current account is kept, or
where the deposit is made and kept, before the bank need pay, and for these reasons
the English Courts hold that the (3)  2 S.C.R, 402 at 422. 25 situs of
the debts is at the place where the current account is kept and where the
demand must be made." It was explained further that if the bank wrongly
refused to pay when a demand was made at the proper place and time, then it
could be sued at its head office as well as at its branch office, but the
reason was that "the action is then, not on the debt, but on the breach of
the contract to pay at the place specified in the agreement", and
reference was made to Warrington, L.J. at page 116 and Atkin, L.J. at page 121
of New York Life Insurance Co. v. Public Trustee.(l) That is the position in
regard to banking law and practice, and it is apparently in that light that the
Regulation has been framed.
The Regulation was intended to achieve what
emergency legislation was designed to secure in a somewhat different context by
somewhat comparable methods. In England, during the First World War the Trading
with the Enemy Amendment Act, 1916 provided for the winding up of the business
carried on in England by companies incorporated in Germany.
That Act was considered by the court In re W.
Hagelberg Aktien-Gesellschaft(2) and it was observed that although the branches
and agency of a business could not be regarded as distinct from the principal
business of. the owner, nonetheless, if a statute was enacted to create that
effect, effect had to be given to the statute for the purposes incorporated
therein. During the Second World War the courts in England were called upon to
consider the Defence (Trading with the Enemy) Regulation, 1940 under which a
winding up order could be made in respect of the business of any enemy bank
carried on at its London offices. In Re The Banca Commercial Italiana(3) the
court observed that having regard to the language of the statute and previous
cases on the point "a winding-up order made under the regulation must be
held to create for the purpose of winding-up a new entity, namely, the business
ordered to be wound up, and this entity is considered as one which can possess
assets and have liabilities of its own." Corresponding legislation in
India during the Chinese invasion and (1)  2 Ch. 101.
(2)  Chancery Division 503.
(3)  1 All Eng. L.R. 480.
26 the Indo-Pakistan Wars was incorporated in
the Defence of India Rules framed from time to time. In all these cases there
is a departure from the general rule that the branches and agencies of a
business are no more than the components through which the entire enterprise is
carried on, and that they cannot be considered as distinct or separate from the
Head office. The departure was necessitated by an emergent or a normal
situation, and incorporated and regulated by specific legislation enacted for
the purpose of coping with the problems arising out of such a situation. It is
only right then that the true scope of what is intended by the legislation
should be determined by close reference to the express terms of the
It is abundantly plain from the object and
purpose of the Regulation and the provisions which seek to realise them that
all transactions effected by or through the Branches of the Banco Nacional
Ultramarino were intended to be brought within the compass of the Regulation.
As observed earlier, although the loan agreements may have been entered into
with the Banco Nacional Ultramarino, the Branches were authorised by the Head
office to give effect to those agreements, and accordingly the Branch concerned
embarked upon the execution of the agreements and the working out of the
The entire business involved in those
transactions and dealings was effected by the Brancn concerned, and it was only
when occasion strictly so required that the Branch made reference to the Head office
for authority to amend or enlarge the scope of the operation. The transaction
and the business nonetheless remained throughout those of the Branch, and this
is fully affirmed by the existence and operation of the loan accounts in the
books of the Branch, by the pledge or hypothecation of goods in almost all
cases in favour of the Branch and by the overall nature and character of the
transaction as an ordinary banking transaction falling within the normal
business of a Branch.
It will be noticed that s. S of the
Regulation expressly speaks of "properties and assets, all rights, powers,
claims, demands, interests, authorities and privileges and all obligations and
liabilities" of the Branches and of "all contracts, deeds, bonds,
agreements..." to which the Branches are a party or which are in their
favour. It proceeds clearly on the basis that the Branches must be regarded as
entering into and carrying out transactions identifiable as theirs. These are
transactions distinct from those exclusively carried on by 27 the Head office
of the Banco Nacional Ultramarino, with which transactions in their essence the
Branches had nothing to do. It will also be noticed that by sub-s. (2) of s. 7
the Regulation envisages financial transactions between the Branches and the
Head office. The entire purpose of the Regulation is to reconstruct by
operation of statute the closed Branches of the Banco Nacional Ultramarino and
to constitute them into a Bank and to work out existing transactions and square
up all pending business with a view to ultimately winding-up the affairs of the
Branches. S. 14 of the Regulation provides:- "The Central Government
shall, on the expiry of twelve years, and may, at any time before such expiry,
direct that the books of account and affairs of the branches of the Banco
Nacional Ultramarino in Goa, Daman and Diu shall be inspected by the Reserve
Bank or by such other agency as the Central Government may determine and that a
report on the basis of such inspection shall be made and the Central Government
may, after considering the said report, direct the winding-up of the affairs of
the said branches on such terms and conditions to be specified by that
Government which shall, as far as practicable, be in consonance with the
provisions relating to winding-up of a banking company under the Banking
Companies Act, 1949".
To accept the contentions advanced by the
appellants would be to negative the very object and purpose of the Regulation
and to nullify its provisions. Such a construction of the Regulation is not
open to the Court, for it could never be supposed that in enacting the
Regulation the President intended an exercise in futility. It is well settled
that the construction put by a court on the provision of a statute should
accord with the object and purpose of the statute, and in that behalf the rule
in Heydon's case(1) relied on by this Court in R.M.D. Chamarbaugwalla v. The
Union of India(2) is attracted. What was the law before the statute was passed,
what was the mischief or defect for which the law had not provided, what remedy
had the legislation appointed and what was the reason of the remedy? That
substantially was also the test laid down in (1)  3 Co. Rep. 7a.
(2)  S.C.R. 930.
28 Vrajlal Manilal & Co. & Ors. v.
State of Madhya Pradesh & ors.(1) It was observed in Kanai Lal Sur v.
Paramnidhi Sadhukhan:(2) "When the material words are capable of two cons-
tructions, one of which is likely to defeat or impair the policy of the Act
whilst the other construction is likely to assist the achievement of the said
policy, then the courts would prefer to adopt the latter construction." We
are of opinion that the transactions under consideration in these appeals fall
within the scope of the Regulation and the Custodian is fully entitled to sue
for the recovery of the debts covered by the loan agreements.
The contention of the appellants to the
contrary is rejected.
We now turn to the remaining points raised in
these appeals. It has been urged that the statutes cannot be decreed because
the Promissory Notes and the Bills of Exchange have not been produced by the
Custodian before the trial court. Now, it is not disputed that the documents
have been removed from Goa to Portugal or to other places overseas and are no
longer in the possession of the Branches. The debts were sought to be proved on
the basis of the accounts maintained in the books of account of the relevant
Branches. This was permissible by virtue of sub-s.
(1) of 8. 8 of the Regulation which
provides:- "8. (1) If for the prosecution of any suit, appeal or other
legal proceeding by the Custodian in any court it is necessary to produce any
document or other particulars and the said document or particulars are proved
to the satisfaction of the Court to have been removed to Portugal or to any of
the territories under Portuguese control, it shall be lawful for the Court, in
disposing of the suit, appeal or other legal proceeding to base its decree or
decision on the books of account of the branches of the Banco Nacional
Ultramarino in Goa, Daman and Diu and on the evidence which can be otherwise
produced." (1)  1 S.C.R. 400, 410.
(2)  S.C.R. 360. 367.
29 Having regard to the circumstances, it is
within the competence of the court to base its decree on the books of account
of the Branches in Goa and on other evidence which can be produced. It was not
necessary for the Custodian, indeed it was not possible, to produce the
Promissory Notes and Bills of Exchange. Our attention has been invited to a
passage in Byles on Bills of Exchange (1) which declares that "in any
action or proceeding upon a bill, the court or a judge may order that the loss
of the instrument shall not be set up provided an indemnity be given to the
satisfaction of the court or judge against the claims of any other person upon
the instrument in question". The provisions of Rule 16 of order VII of the
Code of Civil Procedure and s. 81 of the Negotiable Instruments Act, 1881 were
also referred to. It is true that those provisions require the plaintiff to
furnish an indemnity before a suit can be decreed if the negotiable instrument
on which the suit is founded is proved to have been lost or cannot be produced.
It seems to us that resort to those provisions cannot be justified inasmuch as
the cases fall to be determined under the Regulation and the Portuguese law
which continued in force in Goa. Even in respect of the Portuguese law, that is
to say, provisions in the Portuguese Commercial Code and the Portuguese Uniform
Law, to which our attention has been specifically drawn, we are of opinion that
it stands superseded by reason of the express provisions contained in sub-s.
(1) of s. 8 of the Regulation. No indemnity can be reasonably required of the
Custodian when it has been proved to the satisfaction of the court that the
document has been removed to Portugal or to any of the territories under
Portuguese control. The sub- section plainly makes no provision for
indemnifying the debtors against any further claims made against them. Such a
measure was not considered necessary, because the Regulation vested the entire
right in the Custodian to recover the debt and no further right was left in
anyone else; The debts were regarded as properties and assets of the Branches,
and all rights in respect of them stood transferred to and vested in the
Custodian by virtue of sub-s. (I) of s. 5. Having regard to the provisions of
the Regulation and the object with which it was enacted it is not possible to conceive
that it would be open to the Head office of the Banco Nacional Ultramarino to
sue the debtors for recovery of those debts.
Shri Nariman contends that an express
provision was neces- (1) 22nd Edn. p. 389 para. 70.
30 sary in the Regulation to effect a
complete discharge of the debtors from further liability as was the case in s.
11 (2) of the Pakistan Ordinance considered in The Delhi Cloth and General
Mills Co. Ltd. v. Harnam Singh and others.(1) We think it is not necessary that
there should be such a specific provision. rt is sufficient if the same
conclusion can be drawn from a proper construction of the general provisions of
the Regulation and the object with which it has been enacted. We may point out
that although reference was made by this Court in The Delhi Cloth and General
Mills Co. Ltd. v. Harnam Singh and others (supra) to s. 11 (2) of the Pakistan
Ordinance, it was also observed on page 425 that alternatively:
"Such payment would operate as a good
discharge even under the English rules: see Fouad Bishara Jabbour v. State of
Israel(2) where a number of English authorities are cited, including a decision
of the Privy Council in Odwin v. Forbes.(3) That was also the result of the
decisions in the following English cases, which are similar to this, though the
basis of the decisions was the situs of the debt and the multiple residence of
corporations: Fouad Bishara Jabbour v.
State of Israel (supra), Re. Bangue Des March
and De Moscou Barclays Bank(4), Arab Bank Lrd. v. Braclays Bank(5).
The Learned Additional Judicial Commissioner
has reached the same conclusion, but in doing so he has relied on certain
provisions of the Portuguese Uniform Law. We have not found it possible to
examine the validity of his reasons because a complete statement of the
Portuguese Uniform Law is not before us, and therefore we can find no
justification for disturbing the basis on which he has come to his finding.
The learned Additional Judicial Commissioner
has also adverted to an undertaking offered by the Custodian to indemnify the
debtors against any action by anyone else for recovery of the debts, but on the
view that we have taken we need not examine the validity or sufficiency of that
undertaking, (1)  2 S.C.R. 402, 425.
(2)  1 A.E.R. 145 @ 154.
(3)  Buck. 57.
(4)  2 A.E.R. 746.
(5)  AC. 495, 529.
31 We are satisfied that the discharge of the
debts under the Regulation amounts to their complete discharge and it is not
open to anyone else to sue for their recovery. No indemnity is required to be
furnished by the Custodian on the ground that the relevant documents cannot be
It is faintly urged that the suits filed by
the Custodian were premature. This point was not raised before the courts below
and we cannot allow it to be raised at this stage.
There is one point, however, which, in our
opinion, requires consideration by the trial court. In some of the suits it has
been pleaded by the appellants that they were entitled to a set-off by reason
of certain credits in their favour. The learned Additional Judicial
Commissioner has held that the trial court was justified in declining to enter
into those claims. We think that in this regard the courts below have erred. It
was necessary to do complete justice between the parties having regard to the
peculiar circumstances of these cases, and we are of opinion that so far as
these claims are concerned the trial court should now examine them on their
In the result, the appeals are dismissed
subject to the direction that the trial court will take up the suits again
solely for the purpose of examining the validity of the claims to set-off made
by the appellants in those suits. We make no orders as to costs of these
P.B.R. Appeals dismissed.