A debt repayable under a contract with A and B to either or survivor is not a joint and several debt and cannot be set off against a separate debt due from A to X.

( 1 ) THIS is a suit to recover the balance due on an overdraft account and a declaration of charge and for all consequential reliefs. The only defence is a defence of set-off. The other contentions raised in the written statement are not pressed. The allegations in the plaint are admitted by the defendant's counsel.

( 2 ) THE following issue was raised- "is the defendant entitled to a set-off as alleged in para. 6 of the written statement?"

( 3 ) THE plaintiff (sic. defendant) is admittedly a debtor of the plaintiff for the sum of Rs. 10,406-10-6 before the winding up. The order for winding up of the plaintiff bank was made on 8th May, 1950.

( 4 ) THERE was a fixed deposit by Benode Benari Sarkar and the defendant. The fixed deposit receipt issued by the plaintiff bank is as follows;"no. 30736 Date of Expiry the 30th March 1350. Not transferable. Nath Bank Ltd. No. Bg. 1184, Nath Bank Ltd. , Ballygunge branch office Ballygunge, dated the 30th March 1949. Nath Bank Ltd. Received from M/s. Benode Behari Sarkar and Sisir Kumar Sarkar Paid Rs. 400/-on account of 1st dividend sd/- Illegible 6-12-51. Rupees Four thousand only as a Deposit repayable 12 (Twelve) months after date with interest at the rate of three (3 per cent.) per cent, per annum to Either or Survivor. Rs. 4000/- Cashier Sd/- Pravash Mazumdar Accountant for Nath Bank Ltd. Sd/- Illegible Manager Interest will cease at the expiration of 12 months when this receipt must be sent in for payment or renewal endorsed by the Depositer. No notice will be served by the Bank. "the fixed deposit was repayable 12 months after date to either or survivor.

( 5 ) THE defendant and his wife Ava Sarkar had two accounts Nos. 60 and 61 called Provident Fund Pass Book Accounts with the plaintiff bank. It is admitted that in accordance with the rules of the Fund these two accounts had been made repayable to either or survivor. The total sum due in these two accounts is Rs. 1360/ -.

( 6 ) THERE is no evidence that either Benode Behari Sarkar or Ava Sarkar is dead. There is also no evidence that any demand was made by the two sets of depositors asking for repayment of the moneys in the two accounts to the defendant specifically.

( 7 ) THE question therefore is whether in a suit by X against A to recover a separate debt due from A to X, A can set off a debt repayable under a contract with A and B to either or survivor.

( 8 ) THERE is no doubt that if the debt is a debt jointly due to A and B, A cannot set off such debt. See -- 'bowyear v. Pawson', (1881) 6 QBD 540 (A ). The debt due to A and B is not legally recoverable by A alone from X and cannot, therefore, be set off under Order 8, Rule 6, Civil P. C. In this respect in the absence of special circumstances equity follows law (Storey, Equity Jurisprudence, Article 439 ). The set-off is also not permissible under Section 47, Presidency Towns Insolvency Act read with Section 229, Indian Companies Act because there is no mutual credit between A and X in respect of such debt.

( 9 ) LINDLEY L. J. in -- 'wolstenholme v. Sheffield Union Banking Co. ', (1886) 54 LT 746 (B), at p. 748 observed: "prima facie a separate debt cannot be set off against joint debt either at law, in equity or under the mutual credit clauses of the Bankruptcy Act. There is no authority for the bankers having a general lien in such a case as the present. "

( 10 ) IT is however contended on behalf of the defendant that the debt repayable under a contract with A and B to either or survivor is a joint and several debt. Reliance is placed upon -- 'mcevoy v. Belfast Banking Co. Ltd', 1935 AC 24 (C ). That case decided that where A deposits money with the bank in the name of himself and B, payable to either or survivor, B's right to claim the deposit and to sue the bank depends on whether A purported to make B a party to the contract. Lord Atkin held that B by his conduct had represented to the Bank that he did not intend to ratify the contract and that havin