Anandrao v. Vishwanath Watuji Kalar

1. The applicant is a decree-holder who has obtained a decree against an employee of the Empress Mills of Nagpur. He seeks to attach a sum of money standing to the credit of the judgment-debtor in the Provident Fund books of the Empress Mills Provident Fund. The question is whether this is attachable. The lower Court holds that it is not. The question whether the money is attachable or not turns upon whether the money is a “debt” within the meaning of Section 60 of the CPC. That in turn depends upon the rules of the Provident Fund in question. Before dealing with these rules, it is necessary to observe that if money is handed over by A to B, whether that money is A's or B's will depend upon the conditions subject to which it was handed over. In given circumstances although the money is found in the hands of B it may still be A's money. For example, a may merely have asked B to keep it for him until he demanded it. On the other hand, if a had made an out and out gift of it to B, the money will cease to be A's. Therefore, the mere fact that a hands over money to B does not in itself indicate that the money is A's and is therefore attachable. This is still less so when, as in most Provident Funds, the money which a might receive is not only the money which he hands over but there are added to it sums which the owners of the fund contribute. Therefore in each case it is necessary to examine the rules of the fund.

2. So far as the rules of this fund go, R. 4 shows that the moneys contributed by the employees are vested in trustees.

3. Therefore, it is clear that these moneys cease to belong to the employee. The title to it is in the trustees. The employee thereafter is no more than a beneficiary. The trust deed of the fund in question entitles the trustees to invest this money in the securities mentioned in the deed. The employee has no control whatever over the fund so long as it is vested in the trustees. All that he has is a right to obtain sums of money which vary according as to whether certain contingencies happen or do not happen. One of these contingencies is a transfer to some other concern under the management of Messrs Tatas. Another is resignation; a third is death. So far as the third matter is concerned, I have had occasion recently to hold that the money payable on death is the money not of the deceased employee but of his nominee and therefore is not attachable as part of his assets. So far as the other two contingencies, are concerned, it is clear that the employee has no present right to payment but may get a sum of money, which it is impossible to specify at the moment, on the happening of the contingencies mentioned.

4. The learned counsel for the applicant relies on a quotation from the judgment of Jenkins C.J in 36 Cal. 9361 at p. 938. The learned Chief Justice relying on an English case gives the following definition of “debt,” namely “a sum of money which is now payable or will become payable in future by reason of a present obligation.” This definition is also given by Mookerjee J. in the same case and he ex-plains the matter thus:

“A sum of money which is certainly and in all events payable is a debt without regard to the fact whether it be payable now or at a future time. A sum payable upon a contingency, however, is not a debt, or does not become a debt until the contingency has happened.”

5. In the present case, as I have shown, the money which the employee can claim is payable only upon certain contingencies, such as a transfer. A transfer may or may not happen. It is not something certain. It is not something which is bound to occur. So also it is payable upon resignation. But that also is a contingency; it may or may not happen. A man is not bound to resign. Therefore that is not the happening of a certain event which must with certainty occur. Consequently it is a contingency. Mulla, in his Code of Civil Procedure, 11th Edn., page 241, dealing with the meaning of “debt” in Section 60 of the CPC, states that it is “an obligation to pay a liquidated or specified sum of money.” As I have said, it is impossible at the moment to determine what sum the defendant will be entitled to. If he dies, he will not be entitled to anything. If he does not resign or apply for a transfer, again he will not be entitled to anything.

6. All this shows that this money is not due at the moment, nor can it be said that it is with certainty payable to the employee in the future. In A.I.R 1927 Bom. 3652 it was held in the case of a Provident Fund where the member was entitled to a sum of money upon resignation, as here, that did not constitute a “debt” because the member was not bound to resign for the benefit of his creditors. That is the position here. The learned counsel for the applicant relies on ILR 1941 KAR 401, 3 but that case turned upon the special rules of the Provident Fund in question there. The learned Judges point out that the money was not vested in the trustees. It was only handed over to them for the purposes of management. That is not the case here. The decision of the lower Court is right. The application is dismissed with costs. Counsel's fee Rs. 25.

7. Revision dismissed.