In Re, Mogi & Co. v. S. Curlender & Co.

Chatterjea, A.C.J:— This appeal arises out of certain insolvency proceedings under the following circumstances:

2. The insolvents, Mogi & Co., carried on business in Japan and several other branches in various parts of the world. They banked with the appellants, the Yokohama Specie Bank Ltd., in the latter's branches at each place. The respondents Messrs Curlender & Co., obtained a decree against Mogi & Co. for one lac 84 thousand rupees on the original side of this Court and obtained an order for attachment before judgment of their assets in Bombay. The Yokohama Specie Bank (Who may be referred to as “the Bank”) claimed a lien on the goods attached under a deed of hypothecation dated the 14th July 1920, and the claim was allowed.

3. On the 10th February 1921, Mogi & Co. were adjudicated insolvents ‘at the instance of Curlender & Co.

4. After the adjudication, the Official Assignee obtained a declaration that the deed of hypothecation referred to above was invalid as against him, and the Bank was directed to account for the dealings with-the goods.

5. It appears that before the adjudication, the general creditors of Mogi & Co. in Japan appointed a Re-adjustment Committee consisting of several creditors including the Bank. A circular letter was issued by them calling upon the creditors of Mogi & Co. to empower the Committee to act, and it seems that they executed a power of “trusteeship” in favour of the Committee. The Committee appears to have carried out in Japan a liquidation of Mogi Co.'s debt?, paid a dividend of 112 per bent, in January 1922, and a final dividend of 2,688 per cost in October 1922. The dividends received by the Bank amount to about 15 lacs of rupees, Messrs Curlender & Co. did not join in the proceedings nor receive any dividend. They have since lodged a proof of debt which has been admitted by the Official Assignee.

6. On the 14th January 1925 the Bank lodged a proof of debt, claiming that after all securities had been realised, it still had over one crore and 52 lacs of rupees due to it, and relied upon a copy of the report of the Re-adjustment Committee to show that was the balance due to it.

7. On the 23rd April 1925, on the objections of Curlender & Co., the matter stood over in order that the Bank might apply for issue of a commission to prove its claim, but no steps having been taken by it, Curlender & Co. applied to the Court, (1) for an order expunging ‘the proof of the Bank's claim or for an order on the Bank to pay to the Official Assignee the amount of dividend received by it in Japan to the Official Assignee and; (2) for an order that the Bank's claim for the advance made by it under the deed of hypothecation ‘should be expunged; and (3) for an order directing the Bank to produce all documents and papers in support of its claim before the Official Assignee. After the service of notice of the above application, the Bank applied for letters of request to issue for the examination of the President of its Bank at Yokohama and another member of the Re-adjustment Committee for proof of its claim.

8. Curlender & Co. asserted in their affidavit that the dividends paid to the Bank and other creditors by the Re-adjustment Committee were in full satisfaction of their claim?. The Bank denied that it was so. Mr. Justice Pearson was of opinion that the dividends were paid in full discharge of the claims of the creditors who participated in the proceedings before the Re-adjustment Committee, and that they were not entitled to participate further in the insolvency proceedings here. He was further of opinion that assuming that the Bank did not receive the dividends in full satisfaction of its claim the Bank must bring in the dividends already received in Japan, before it can be allowed to participate in any division of the insolvents' property here. He, however, refused to make an unconditional order upon the Bank to pay over to the Assignee the dividends received by it in Japan, but disallowed the commission and the letters of request on the ground that there was no use in allowing the exceedingly long and expensive examination in Japan to go on unless the Bank was willing to accede to the contention which it had resisted before him.

9. The Bank has accordingly preferred this appeal and cross-objections have been put in by Messrs Curlender & Co.

10. It is contended on behalf of the Bank that it is entitled to prove its claim, and that the question of its right to participate in the dividends here should be decided after evidence is taken, as there are no materials to present for determining it.

11. It is contended by Mr. Pugh on behalf of Messrs Curlender & Co. that the Bank is bound to bring the dividends it received in Japan before it can prove its claim in the insolvency Court; that treated as a mercantile firm carrying on business in India, and having submitted to the jurisdiction of the insolvency Court it is bound to account to the Assignee for the money received in Japan, and that an action for money bad and received may be maintained by the Assignee against the Bank and that in any case it cannot get any dividends until the other creditors have received such dividend as is proportionate to the amount received by the Bank. The counsel for the Official Assignee joined with Mr. Pugh in pressing us to decide, the matter.

12. In the case of Banco de Portugal v. Waddell(1). Lord Cairns said.

13. As I understand the law, it would at all times, have been perfectly competent to the holders of these bills having received under the bankruptcy administration in Portugal a certain dividend, to come and prove upon the bankruptcy administration in England if a bankruptcy administration was taking place here, and the only question, would be the terms upon; which they should prove;

and referring to the case of Selkrig v. Dams(2) observed:

The terms are perfectly clear that a person who after having proved under a foreign bankruptcy, claims to prove in a bankruptcy of the same debtors in England he may do so, but he may do so upon the terms of bringing in, for the purpose of dividend, the sum which he has received, abroad.

14. As was said by Lord Eldon:

‘It has been decided that a person cannot come in under an English Commission without bringing, into the common land what he has received abroad, and Lord Eldon goes on to point out what is-obviously the case, that a creditor, because he happened personally to be in England, would not be obliged to bring this into the common fund he might keep it if he liked; he might ignore the English bankruptcy Altogether if he pleased; but if he did not ignore it, if he sought to take advantage of it, if he sought to have some benefit, from it, the must bring into the common fund that which he had already received in respect of the obligations of the same debtors.

15. In the case of Cockerell v. Dickens(3) however Baron Parke, in delivering the judgment of the Judicial Commitee, observed:

The principle is that one creditor shall not take a part of the fund which otherwise could have been available for the payment of all the creditors, and at the same time be allowed to come in part passu with the other creditors for satisfaction out of the remainder of that fund, and this principle does not apply where that creditor obtains by his diligence something which did not and could not form a part of that fund.

16. Under Section 17 of the Presidency Towns Insolvency Act (Act III of 1909), on the making of an order of adjudication the property of the insolvent, wherever situate, shall vest in the Official Assignee and shall become divisible among his creditors; and no creditor shall have any remedy against such property except with the leave of the Court. But this can have operation only with respect to property affected by our law.

17. With regard to immovable properties situate in a foreign country, the law is thus stated in Westlake's Private International Law, 7th Edition, 182:

Any creditor, British or alien, may retain any payment which he can obtain out of the non-British immovables of a bankrupt or Company being wound up, and if it is only partial may receive dividend in the bankruptcy or winding up on the residue of his debt pari passu with the other creditors.

18. So far as moveable property is concerned the general principle is that it is subject to that law which governs the person of the owner. In Westlake, at page 183, it is stated that a creditor who, after the commencement of an English bankruptcy and not by virtue of any charge prior to the bankruptcy or of a judgment in rem, obtains payment out of bankrupt's moveables in a non-British country, must account for such payment, if he seeks to receive dividends on the residue if any, of his debt, but may otherwise retain it, and this, whether or not the payment was obtained by legal proceedings or whether or not the title of the trustees was asserted is such proceedings if any; but that if he is a British creditor or one domiciled in England or one who in his character of creditor must be regarded as English because the debt is owed to a house of business in England of which he is a member) and obtains payment out of the bankrupt's moveables in a non-British country under the circumstances stated above, be must pay over the amount in the trustees in bankruptcy whether or not be seeks to receive dividends on the residue if any of his debt.

19. It appears, however, Shat where, by the law of the foreign country, a person other than the Official Assignee is entitled to payment out of moveable property there, he cannot be ordered to refund it to the Official Assignee. In Sill v. Worswick(4), it was observed:

it by no means follows that a commission of bankrupt has an operation in another country against the law of that country, I do not wish to have it understood that it follows as a consequence from the opinion I am now giving it rather think that the contrary would be that consequence of the reasoning I am now using that a creditor in that country not subject to the bankrupt laws nor affected by them, obtaining payment of his debt and afterwards coming over to this country would be liable to refund that debt. If he had recovered it in an advance suit With assignees he would clearly not be liable. But if the law of that country preferred him to the assignee, though must suppose that determination wrong yet I do not think that my holding a contrary opinion would revoke the determination of that country however I might disapprove of the principle on which that law so decided.

20. I do not think it necessary to refer to the authorities any further at the present stage, as evidence has not been gone into. Both Mogi & Co. and the Bank are incorporated in Japan though with branch offices in various parts of the world.

21. It is not shown that the law of Japan or the places where the assets were realized recognizes the right of the Official Assignee. It does not appear whether Mogi & Co. executed any trust-deed, What the, terms of the trust were, when the deed of trust was executed, what assets have been realized by the Re-adjustment Committee, whether such assets consisted of immovable property wholly or partly in Japan or elsewhere or included assets in India, whether the property in Japan from which the Bank obtained dividends was, according to the law of Japan, common fund available to the Assignee in Insolvency for the benefit of creditors generally. There is nothing to show that the Official Assignee could successfully sue the Bank for the money received by it in Japan or that the Bank received by money which could be regarded as a part of the common fund available to creditors generally and in consequence of which the payment of dividends to it could be postponed until the other creditors received, dividends proportionate to what it had received. In the absence of materials upon the points the question whether the Bank is bound to bring in the dividends obtained by it in Japan before dividend are paid to it in the insolvency; proceedings here, or whether payment to it should he postponed until other creditors have received proportionately, cannot be determined.

22. With regard to the 1 & ½ lacs of rupees for which the Bank obtained a deed of hypothecation, it is true that the deed has been found to the invalid. But the amount is said by this Bank to be due to it over and above the 1 crore and 52 lacs of rupees, and I do not see why the Official Assignee “should not consider the claim in the ordinary way when dealing with the rest of the claim.

23. I am of opinion that the Bank is entitled to prove its claim and the Official Assignee should consider the proof. The result is that Appeal. No. 129 of 1925 should be allowed and the motion of Messrs Curlender & Co. dismissed with costs of both Courts. The cross-objections are dismissed with costs.

24. Appeal No. 130 of 1925. I have had the advantage of reading the judgment of my learned brother, and I agree with it. The order of Mr. Justice Pearson will be discharged and the Official Assignee directed to proceed with the consideration of the Banks's proof. No costs to any party in this case.

Rankin, J.:— (His Lordship set out facts and proceeded.) The amount of the dividends in question is not proved but it is apparently a considerable sum and at the opening of this appeal it seemed to me a pity that a matter of importance should be decided upon slight and incomplete materials apart altogether from the question whether the Bank had a right to a better opportunity of adducing evidence from Japan or elsewhere. In any case it was evident that this question if decided, could not be decided in such a way as to bind one creditor only. However, counsel for the Official Assignee after obtaining instructions joined with counsel for Messrs S. Curlender & Co. in pressing us to decide the matter on this appeal; counsel for the Bank maintaining that evidence from Japan would be necessary before anything could be decided against him, and that the learned Judge had no sufficient materials upon which to base his decision.

25. In the result I am of opinion that as against Messrs S. Curlender & Co. and as against the Official Assignee we are in a position to decide as follows: First that the learned Judge was right in refusing to make an order upon the Bank to pay over to the Official Assignee the dividends in question. Secondly, that the learned Judge was wrong in ordering the Official Assignee to stay all procedings upon the Bank's proof unless the Bank first paid over to him the dividends in question. Thirdly, that if the proof of the Bank after due investigation be admitted a question will then arise as to whether the Bink is entitled to receive any dividend in respect thereof until the other creditors shall first have received such dividend as is proportionate to the amount already received by the Bank. For the decision of this question sufficient materials are not before us nor does it require to be decided now.

26. What then are the facts proved by the evidence adduced on these matters? We know that the order of adjudication was made on 10th February 1921. There is, no mention in the affidavits of the date of presentation, of the petition or of the date of the acts of insolvency on which the order was based or as to whether any earlier act of insolvency has been established since, which was available at the date of the petition. We know nothing as to the date of commencement of this insolvency save that it was not later than 10th February 1921. We know that the insolvents are a “firm”, called Mogi & Co. here, and in Japan, called, it would seem, Mogi Gomei Kaisha,; who are the insolvents; we do not know, at all except that they are the persons who at the date of the order were the partners (B.R 151). It is however conceded at the Bar that the head office has been in Japan and that the Calcutta office and some twenty other offices all over the world were branch offices.

27. I do not understand it to be disputed that the partners are Japanese. Again though I cannot find that it is properly in evidence, it is conceded that the Yokohama Specie Bank, Ld., or the institution which here and in some other places goes by that name is really a Company incorporated in Japan with its head office in Japan. At several places in Japan and in China and in the United States as well as in Calcutta, Bombay. Montreal, London and elswhere the insolvents carried on, business and became indebted to the Bank. At some time in 1920 apparently about October a meeting of the creditors of Mogi & Co. held in Japan appointed a Re-adjustmoat Committee. This Committee would appear to have carried out in Japan a liquidation of Mogi & Co's. affairs. It paid not only to Japanese creditors but also it would appear to creditors e.g in Calcutta who applied therefor a dividend of 12% in January 1922 and a further 2.688% in October 1922.

28. It seems that the creditors who came in under this arrangement did so by executing in favour of the Committee a power of trusteeship.” What this exactly was cannot be determined on the evidence’ nor do we know whether Mogi & Co. executed any trust deed or other form of assignment. If they did we do not know its date. We know nothing of the assets of Mogi & Co. realized by the Committee. These may have been wholly or partly assets in Japan or in China or in London or anywhere else, but there is not a scrap of evidence that the Committee intermeddled with any Indian or any British assets. It may be that the whole or part of the assets consisted in immovable property in Japan and elsewhere or it may be that there was nothing but moveable property. What sum was realized from the Bank's securities appears presumably from the figure given in its proof of debt. What sum it actually got as dividend on its unsecured debt does not appear, presumably it got 14.688% upon something. The Committee and its proceedings are stated by the Bank's accountant Massami Kawada to be sanctioned by the laws of Japan but beyond this there is no evidence upon the subject. That its proceedings were illegal under the law of Japan, there is nothing whatever to suggest.

29. This is in effect the evidence upon which the Official Assignee and Messrs S. Curlender & Co. claim to have proved that they are entitled to cut short all investigation of the Bank's proof and to get an order for payment to the Official Assignee of the unascertained amount received by the Bank from the Committee by way of dividend.

30. In my judgment this is not a case of election between different estates and a creditor lodging a proof can only be required to hand over money or other property to the Official Assignee as a condition procedent to his proof being considered in cases where the money or other property rightfully belongs to the Official Assignee, that is, where independently of, any claim to prove, the alleged creditor could, if, in this country, be sued and decreed to pay, the money or deliver up the property where the money or other property received has not been wrongfully received but has nevertheless been derived from what falls to be regarded in equity as another part of the total fund available to creditor's proof if allowed upon terms which postpone the receipt of dividend sufficient to place them upon an equal footing with the creditor in question.

31. The authorities seem to me to support the following propositions:

First, Section 17 of the Presidency Towns Insolvency Act (III of 1909) vests in the Official Assignee, the property of the insolvent wherever situate and goes on to say that “no creditor shall have any remedy against that property.” This statute is a statute of the Indian Legislature. To adopt the phrase of Baron Parke in Cockerell v. Dicksen “it, operates wherever, but not elsewhere, that legislature could give the law.” This is the principle which English law itself applies to foreign, bankruptcies which do not prevent the Courts from making or oblige the Courts to rescind a receiving order at all events where the foreign country is not the debtor's domicile: Re. Artola Hermanos(5).

32. Secondly, as regards immovables in a foreign country, such as Japan, the view of international law taken by English and British Indian Courts is that our statutes do not operate unless indeed it is shown that the foreign law will give them effect. This I take to be the view of the Judicial Committee in the case already cited: Cf. Westlake, p. 182.

33. Thirdly, as regards movables in a foreign country, the basic principle is mobilia sequuntur personam. Prima facie these are governed by the law of the insolvent's domicile: Phillips v. Hunter(6); Sill v. Worswick; Cockerell v. Dickens supra.

34. Fourthly, if the moveable property of an insolvent domiciled here is dealt with by the Courts of a foreign country in which it is situated in a manner contrary to the rights which our law would have given to the Official Assignee the person to whom it is adjudged does not hold it wrongfully as against the Official Assignee, nor can he be made to deliver up what the foreign Court has given to him except in a case where he too is domiciled here and the rights of both parties can be limited to those given to them by our Law. Sill v. Worswzck; Phillips v. Hunter. In a proper case coming within this exception our law will act in personam either to res-train proceedings being had or continued abroad or otherwise to give effect to our own law.

35. Fifthly, except in such a case as I have just mentioned by way of exception; where the moveable property of an insolvent domiciled here is situate in a foreign country by whose law a person other than the Official Assignee is entitled to obtain possession of it or to receive payment out of it, such a person cannot be made to refund it to the Official Assignee even if he brings what he has received into this country. This was Lord Laughborough's opinion in Sill v. Worswick. In such a case the burden of proving what the foreign law is would be upon the person seeking to shelter under it. Hunter v. Potts(7); Phillips v. Hunter; Lloyd v. Ghuibert(8).

36. In the present case we are dealing with a Japanese firm and a Bank incorporated in Japan. It is true that in each of the countries where they had branch offices they have for certain purposes and in some sense a domicile. There is no definite evidence in the case of either as to where the ultimate and supreme direction or management was located, but we know that they were both Japanese concerns with head offices in Japan and numerous branches all over the world. It must be conceded that had the insolvent's affairs been liquidated in Japan by any process of law analogous to bankruptcy, the receipt of dividends thereunder would have been in no way wrongful on the part of the Bank and postponement of dividends would have been the proper course: Banco de Portugal v. Waddell; Re Wilson(9). Can it be laid down that a liquidation by arrangement or a creditor's deed is on a different footing altogether? Is it really the view of-our-law that a creditor in Japan or in China had prima facie no right to transact further business with Mogi & Co. from the moment the adjudication order was made in Calcutta? That a Japanese creditor could not even sue for his debt in the country of his own and the debtor's domicile without the leave of the Calcutta Court that he should prima facie have regarded even the Japanese assets as under administration by this Court and resorted here with his proof of debt? I do not doubt that it is the duty of the Official Assignee to get in moveable property abroad if he can. Nor do I doubt that our law proceeds historically on the basis of an assignment of all his property by the debtor. But if the principle be mobilia sequunter personam and if this be the view of international law accepted by our Courts it is surely necessary as against & Japanese Bank to prove that the law of the place or places where the assets were recovered recognizes the title of the Official Assignee notwithstanding that the domicile of the insolvents was Japanese and that they have in fact made no voluntary assignment before a claim can be established to treat the recovery as wrongful [assuming that the dissenting judgment of Byre, C.J, in Phillips v. Hunter was wrong] the case being one between Englishmen, it is still for a case of the present type and on the present point unanswerable in my view) and if the recovery be not shown to be wrongful, upon what principle can the case be treated differently from a case of double bankruptcy or a case where a foreign creditor has obtained payment abroad by execution after the commencement of the bankruptcy: Ex parte Wilson Banco de Portugal v. Waddell. The language used in Selkrig v. Davies(10) and in the older cases having reference to English creditors of English bankruptcy cannot govern such a case as the present (cf. Selkrig's case; West lake on International Law 7th Ed. at p. 177.) But in any case, the language used in the old cases as to “refunding what he has received and coming in equally with the rest of the creditors” cannot be taken at the foot of the letter in modern bankruptcy practice and applied to foreign creditors of persons domiciled abroad. “Bringing into the common fund” is a principle of distribution and nothing more in such cases as the present, as is indeed amply shown by the judgments in Ex parte Wilson and Banco de Protugal v. Waddell (supra).

37. In my opinion, this motion has been brought upon wholly insufficient materials, and as the Official Assignee and Messrs S. Curlender & Co. have persisted in claiming a decision now I think the decision should be given now against them. The question as to the advance made under the deed of hypothecation of 14th July 1920, which has been set aside, will be decided in the ordinary way when the Official Assignee comes to admit or reject the proof. So too with the question whether the Bank has by accepting dividends in Japan agreed to release the balance of its debt.

38. In Appeal No. 129 of 1925 the proper Order in my opinion is to allow the appeal and dismiss the motion with costs both here and below. The cross-objections should be dismissed with costs.

A.O.O 130 of 1925.

39. This appeal is against an order whereby the learned Judge in insolvency has dismissed the application of the Yokohama Specie Bank Ltd. for directions as to the manner in which its proof of debt shall be evidenced and for letters of request for the examination of witnesses in Japan.

40. The proceedings disclose that there has been some misapprehension as to the proper practice in dealing with a proof of debt and as to the rights of one creditor to dispute a proof lodged by another. The affidavit of Mr. Curlender appears to proceed on the view that the Official Assignee has to preside over a formal litigation between creditors as to their respective proofs of debt. I do not know where this idea comes from: it may have been the practice under the old statute 11 and 12 Vic. C. 21 and it may be that something very like it is contemplated by the Provincial Insolvency Act (Act V of 1920) but this sort bellum omnium contra onmes is entirely out of place under the Act of 1909 which embodies the scheme of the English Bankruptcy Acts, a plain and business like scheme. The main object investing all the insolvent's property in the Official Assignee and in requiring him to admit or reject proofs is to avoid any such proceedings. The Official Assignee is to make up his own mind, to satisfy himself as to the justness of the claim, just as any other Receiver may have to do. He has to examine the proof.

41. His duty is to put no creditor to unnecessary delay or expense if he admits a proof any other creditor may apply to have the proof expunged. If he rejects the proof there is an appeal to the Judge.

42. It is at this stage and not before, that technical questions of proper evidence may arise and any creditor litigating, in this manner about another creditor's proof does so at his own risk as to costs. Before that stage is reached every creditor has prima facie to bear the cost of proving his own debt (Sch. II, 26); other creditors are entitled to inspect a proof and of course may and should give all relevant information and assistance to the Official Assignee. The Official Assignee may use S. 36 to obtain information as to any proof. Again on taking proper steps the Official Assignee may have the benefit of counsel's opinion on any points of law. Nothing could be more proper in a case like the present than for the Official Assignee to ask the Bank's representative to come to his office to go through the relevant papers, give explanations and take his view as to the further evidence required to satisfy him and as to the most convenient way of obtaining it. It is doubtless very well that he should record a minute of what takes place but if other creditors are to be there at all, a course of very doubtful wisdom, they must be prevented from turning such proceedings into an unauthorized form of litigation. They can litigate at the right time before the Court and until that time comes they may well be content with giving to the Official Assignee any information they have got and leaving the rest to him unless indeed they desire to apply under S. 36 themselves. At the present stage the Official Assignee should make up his own mind, as a reasonable business man as to the matters on which he desires further evidence and the kind of evidence necessary to convince him.

43. In my opinion, this proof of debt should go back to the Official Assignee to continue his examination thereof. By way of assistance to him in showing how he ought to look at the matter I will take the case, for example, of the report of the Re-adjustment Committee. The Official Assignee when the document is produced, must make up his mind whether be is really satisfied that it is the report or a true copy thereof. If he is not, then one sensible thing would be to ask for an affidavit from Japan verifying it as being a true copy of the proof.

44. As regards the truth of the contents of the report or any particular facts arising thereon he will doubtless require an affidavit of some one who took a responsible part in the Committee's work in Japan. Again, if the account between the insolvents and the Bank at any particular place has to be scrutinized presumably, to begin with, a certified copy of the account would be sufficient to enable the Official Assignee to feel sure that the document is not a fabricated document. If he wants a further and a better list or particulars as regards the Bank's securities, how they were realized or otherwise, he may call for it and let it be verified by some one whom he can take to be a responsible man in a reasonable manner by an affidavit or in some such way. He will in this way go as far as he can, in the ordinary line of a business-man, applying his own commonsense in a matter where he has to form his own opinion. He has to satisfy himself. Of course when he has done all he can do in this way, it may be that he will want to examine some witnesses in Japan, or he may think it fair and proper to reject the proof. In the end he will admit or reject the proof in whole or in part and anybody desiring to challenge his decision will then under the ordinary rules of the Court get the most ample opportunity to do so but upon the ordinary terms. I consider that the proper order in this appeal is to discharge the order of the learned Judge and to direct the Official Assignee to proceed with the consideration of the Bank's proof and to allow no costs in either Court to any party.

45. Appeal allowed.