A suit against the Official Assignee, representing the estate of an insolvent, does not require a notice under Section 80 of the Civil Procedure Code.

S.M. ALI MOHAMED, J.

1. This appeal under Cl. 15 of the Letters Patent, is preferred against the order of the learned single judge made in Application No. 3433 of 1993 in C.S. No. nil dated 23.8.1993.

2. The appellant/plaintiff, New Bank of India filed a suit on the original side of the High Court for recovery of a sum of Rs. 1,36,000/- with interest thereon against (1) Official Assignee, High Court, Madras, representing N. Pathmanathan, Insolvent in I.P. No. 96 of 1991 Proprietor of P.P.K.V. Natarajan and Sons and (2) Tmt. Thangathurai Achi and filed an Application No. 3433 of 1993 before the trial court to grant permission/leave to sue the Official Assignee, High Court, Madras in the above proceedings. The learned single judge dismissed the above application for leave to sue the Official Assignee in the above proceedinhgs. Aggrieved by the above order, the appellant/plaintiff has preferred this appeal.

3. The learned single judge has summarised the respective plendings of the appellant/plaintiff and the first respondent first defendant as follows:

“The applicant in their affidavit contends as follows:—

The plaintiff bank has advanced monies to one Mr. N. Pathmanathan, Propreietor of P.P.K.V. Natarajan and Sons. The loan was guaranteed by the second defendant who created an equitable mortgage on her landed property as an additional security. The borrower gave a primary security of the hypothecated stocks and also book debt of his firm. The plaintiff has to file a suit against the said borrower and the guarantor for getting a charge on the hypothecated stocks and book debts. Mr. N. Pathmanathan has been declared as an insolvent in I.P. No. 96 of 1991 in this Court. The Official Assignee has taken charge of his assets including the hypothecated stocks and book debts over which the plaintiff has the first charge and therefore, the appellant has to necessarily file a suit against the Official Assignee. Hence, the application for leave to sue the Official Assignee.

The Official Assignee in his counter, has stated as follows:—

The loan was granted by the bank and the second defandant created an eduitabte most gage on her landed property as an additional security, apart from the borrower furnishing security of the hypthecated stocks and book debts of his firm. The plaintiff is not secured creditor in respect of the property of the insolvent N. Pathmanathan who was adjudicated as an insolvent on 7.11.1991 in I.P. No. 96 of 1991. The applicant is not entitled to commence any suit or other legal proceedings except with the leave of this Court during the pendency of the insolvency proceedings. The Official Assignee has taken possession of the movables and other goods belonging to the insolvent and sold them in public auction. If there is any true owner of the goods which have become divisble among the creditors of the insolvent, they may prove the value of such goods. There cannot be a personal decree against the Official Assignee while exercising his duty under the orders of this Court. As against the insolvent is concerned, it is only a money suit and the plaintiff claims a charge upon the hypthocated goods which were already taken possession from the insolvent. The Official Assignee has nothing to do with the mortgage of the second defandant. No notice under S. 80 C.P.C. was served upon the Official Assignee. Leave to sue, therefore, cannot be granted and has to be dismissed”.

4. On the above pleadings and the contention of the respective parties, the learned single judge held that the plaintiff bank cannot file a suit against the Official Assignee and that no notice under S. 80 of Civil Procedure Code was given by the plaintiff to the Official Assignee the institution of the suit and as such, the suit was not maintainable.

5. It is contended by Mr. Surana, learned counsel for the appellant that the above findings of the learned single judge are not sustainable in law. Learned counsel for the appellant cited a Division Bench ru