Judgment :- GOVARDHAN, J. 1. A. No. 484/1995: The applicant in his affidavit contends as follows: The suit is filed for recovery of Rs. 12,76,809.33. The defendants received from the plaintiff financial assistance for the purpose of investments in their sister concerns. They agreed to pay interest on the borrowing of Rs. 1 lakh. In the second defendant Company, the first defendant is the Managing Director. He stood guarantee for the due repayment of the amount. After utilising the amount borrowed, they have failed to repay the same, and a commission of 1% has to be paid to the first defendant. The second defendant used to deduct tax at source for outstanding interest and the amount due by the first defendant. Tax was deducted at source. The first defendant issued a cheque towards the amount due. The plaintiff made a demand through his advocate. The defendants put forward a false plea denying the borrowing. The defendants are heavily involved in debts. The defendants are owning the immovable properties which have been mortgaged in favour of the State Bank of Hyderabad. They have let out the premises on a rent of Rs. 85,000/- per month in favour of the State Bank of India, Tirupathi. The Carnishee is receiving the amount and appropriating the same to themselves. The petitioner has no other chance of recovery of the amount due except seeking the attachment of the remals payable by the Garnishee Bank by issue of a prohibitory order. The defendants are attempting to receive the same and credit it with a view to defeat and delay the rights of the petitioner. Hence the application for issue of a pro-order to the garnishee bank prohibiting them from paying any rents or any other amount payable to the second defendant. 2. The first respondent filed a counter contending as follows: The second respondent is not connected to the suit transactions. There has been no dealing or transactions after December, 1988. The suit is therefore barred by limitation. The first respondent is the Managing Director of the second respondent. The second respondent never stood guarantee to the loan advanced to the first respondent. The first respondent has availed overdraft of Rs. 1 crore from the State Bank of India, Secunderabad. The State Bank of India is paying a rent of Rs. 87,000/- per month to the second respondent. The first respondent is the Managing Director of the second respondent. The second respondent never stood guarantee to the loan advanced to the first respondent. The first respondent has availed overdraft of Rs. 1 crore from the State Bank of India, Secunderabad. The State Bank of India is paying a rent of Rs. 87,000/- per month to the second respondent. Since the second respondent is a guarantor for the overdraft availed by the first respondent, the rents are adjusted towards the loan account. There is no money available with the garnishee for attachment. The allegation that the first respondent is indebted heavily is false. The application is therefore liable to be dismissed. 3. Interim order of attachment by pro-order was ordered on 23-1-1995. 4. The garnishee State Bank of India, Tirupathi has filed an application in A. No. 3109/1995 to vacate the pro-order contending as follows: The State Bank of India at Secunderabad has granted over-draft to the first respondent and three others who are the Directors of the second respondent. The overdraft limit enjoyed by each of them is Rs. 25 lakhs. The overdraft limit has been availed by them by the personal guarantee of the second respondent and also by the equitable assignment in favour of the Bank, the rent payable by the garnishee to the second respondent in respect of the office premises occupied by the garnishee as tenant of the second respondent. Title deeds have also been deposited with the bank. Monthly rent has been paid by the garnishee towards the overdraft availed by the second respondent. The second respondent has no right to claim the same until the overdraft is liquidated in full. The garnishee as well as the Banks Secunderabad Branch are one entity. The bank has a lien over the rentals. The pro-order therefore has to be vacated. 5. The second respondent filed a separate counter contending as follows: The details in the counter in A. No. 485/1995 may be treated as the counter in this application. Towards the repayment of the credit facilities, the rent paid by the garnishee is being adjusted. There is no money available with the garnishee payable to the second respondent. 6. The plaintiff in his counter states as follows: The applicant is, in occupation of the property belonging to the defendants and is liable to pay the rent to the defendants. Towards the repayment of the credit facilities, the rent paid by the garnishee is being adjusted. There is no money available with the garnishee payable to the second respondent. 6. The plaintiff in his counter states as follows: The applicant is, in occupation of the property belonging to the defendants and is liable to pay the rent to the defendants. The applicant cannot now seek to put forward a plea about the payment of the rentals to the State Bank of India, Secunderabad. There is no assignment of the rights of the defendants to receive the rental of the property. The State Bank of India, Secunderabad has ample security by way of immovable property towards the advances made by them. It cannot seek to put forward any right over the rentals payable by the applicant to the defendants. The application has been filed at the instigation of the defendants. There cannot be any assignment in respect of the rentals payable by the applicant to the defendants. The Bank has no right over the rent payable by the applicant There is no equitable assignment in favour of any one in respect of the rentals. The applicant cannot put forward a plea that no money is payable by the garnishee to the second defendant The plaintiff is entitled to seek attachment of the rentals payable by the applicant. The application is not bonafide and it is liable to be dismissed. 7. A. No. 3110/1995: This application is filed by the claimants viz., the State Bank of India, Secunderabad. The applicant has stated that towards the loans and advances by the claimant to the defendants, rentals payable by the garnishee, is being adjusted and the plaintiff cannot seek attachment of the same. 8. The garnishee has also filed the same affidavit supporting the claimants version. 9. The plaintiff has filed a counter stating briefly as follows: The applicant has conspired with the defendants to defeat the plaintiffs rights. The defendants cannot create any right over the rental payable by the State Bank of India, Tirupati to them. The applicant is a secured creditor. They have security by way of immovable properties in respect of the amounts alleged to have been advanced by them. They cannot acquire any right over the rentals payable by the State Bank of India, Tirupathi in respect of the premises occupied by them and belonging to the defendants. The applicant is a secured creditor. They have security by way of immovable properties in respect of the amounts alleged to have been advanced by them. They cannot acquire any right over the rentals payable by the State Bank of India, Tirupathi in respect of the premises occupied by them and belonging to the defendants. The claim petitioner cannot seek to claim rights as the beneficiary or a secured creditor. They cannot seek to claim the rentals payable by the State Bank of India, Tirupathi as security. The application is the refore liable to be dismissed. 10. The plaintiff has filed the suit for recovery of the suit claim of more than Rs. 12,76,000/-contending that the first defendant has borrowed money from the plaintiff and the second defendant guaranteed the obligation of the first defendant and both of them agreed to repay the amount and failed to do so resulting in the suit claim being payable to the plaintiff by the defendants. The plaintiff has filed A. No. 484/1995 contending that the garnishee which is occupying the property owned by the second defendant, has to be restrained by means of a prohibitory order by making payment of the rental of Rs. 85,000/- per month since there is no other source of realising the amount due to the plaintiff from the defendants. Interim pro-order of attachment was issued to the garnishee bank on 23-1-1995. The garnishee Bank at Tirupathi has filed Application No. 3110/1995 for vacating the said order or attachment. The State Bank of India, Secunderabad has filed A. No. 3110/1995 for vacating the said order of attachment. The State Bank of India, Secunderabad has filed A. No. 3110/1995 as a claim petitioner contending that the second defendant has been permitted to avail overdraft facility and the partners of the second defendant Comapny have availed the overdraft facility of Rs. 25,000/- each totalling Rs. 1 crore and executed documents for due repayment of the same and one such document is the hypothecation deed in respect of the property where their branch at Tirupathi is located. 25,000/- each totalling Rs. 1 crore and executed documents for due repayment of the same and one such document is the hypothecation deed in respect of the property where their branch at Tirupathi is located. It is also the case of the claimant that the second respondent has passed a resolution permitting the garnishee bank to adjust the amount payable by them towards the dues of the claimant and since the claimant as well as the garnishee bank are one and the same, it was agreed by the claimant also and accordingly a sum of Rs. 87,000/- per month payable by way of rent by the garnishee bank to the second is given credit towards the dues payable by the second defendant to the claimant towards the discharge of the credit facilities availed by them. The defendant has also raised a plea that the last transaction between the plaintiff and the first defendant being in the year 1988, the suit is barred by limitation and on that ground also, the attachment is sought to be vacated. The learned counsel appearing for the plaintiff would argue that a payment by means of a cheque was made by the defendant on 7-2-1992 and it was also encashed and the question of the suit being barred by limitation does not arise on account of the said fact. The defendants do not dispute making payment of certain amount by means of a cheque dated 7-2-1992. Therefore, the contention of the defendants that the suit is barred by limitation and on that ground attachment order is to be vacated cannot be upheld. 11. The learned counsel appearing for the plaintiff-petitioner would argue that the borrowing by the first defendant is admitted and property for which rent is payable has already been mortgaged in favour of the claimant-Bank and the loan due to the bank being a secured loan, the plaintiff is entitled to attach the rent payable by the bank to the second defendant in order to realise his dues and therefore, the order of attachment should be made absolute. It is also contended on behalf of the plaintiff that the borrowing is by individuals and amount sought to be adjusted is the rent payable to the Company and the attempt of the bank to adjust the rent towards the amount payable to the individuals would show that there is collusion between the defendants as well as the garnishee and therefore on that ground also, the attachment has to be made absolute. The claimant has filed a typed set of documents in which, there are copies of number of documents available for perusal. The sanction of the amount by way of over-draft to the partners also form part of the above documents. The sanction order would reveal that the loan shall be guaranteed by Sri Srinivasa Paper & Board Mills (P) Ltd., viz., the second defendant and personal guarantee of other Directors of the Company is also made to the bank. From the above order, it is also seen that the loans shall be collaterally secured by deposit of title deeds of the property viz., the property in which the Tirupathi Branch of the State Bank is located, which belongs to the second defendant. Even though the loan has been advanced to the Directors of the second defendant, the loan was collaterally secured by the deposit of title deeds of the property by the second defendant and the personal guarantee of the Directors as well as the guarantee of the Company is seen. Therefore, the contention of the learned counsel appearing for the plaintiff that the rent payable to the company is sought to be adjusted towards the loan availed by individuals and therefore it must be inferred that there is collusion is not convincing and acceptable. 12. The claimant has also filed the resolution passed by the second defendant company which would show that the Company has resolved to authorise the State Bank of India to appropriate the monthly rental payable to the company towards the lease of the company property at Tirupathy to the State Bank of India against the amount payable by the Directors. The adjustment is therefore only in pursuance of this authorisation is seen from the above document. The adjustment is therefore only in pursuance of this authorisation is seen from the above document. The learned counsel appearing for the plaintiff would argue that the assignment and the manner in which it may be effected has been defined in Section 130 of the Transfer of Property Act and by and under the above Section, the transfer of a debt or actionable claim may be effected by execution of an instrument in writing signed by the transferor authorising his agents and upon such execution only, the rights and remedies of the transferor will vest in the transferee and in the present case, there is no instrument of transfer as contemplated under Section 130 of the Transfer of Property Act executed by the second defendant or their Directors and therefore, the adjustment of rent is not proper and the plaintiff is entitled to attach the same by means of the prohibitory order. That the assignment of the rent has been done by the Boards resolutions only and not by the separate document is not in dispute. The rent payable by the Bank cannot be considered to be an immovable property in which case a registered document shall be insisted upon. The claim of the rent found due in future is only an actionable claim. Whether any document of assignment of this actionable claim is required is the only point that has to be decided by us. It has been held in the decision reported in Chidambaram Pillai v. Doraiswami Chetty (A.I.R. 1916 Madras 974) that an assignment of rent due under a lease is, unlike mesne profits, not opposed to Section 6 of the Transfer of Property Act: it is a fixed amount and is a debt included in the term ‘chose in action’. It is not disputed by the learned counsel appearing for the plaintiff that the rent payable is a chose in action. In the decision reported in Seth Loon Karan v. I.E. John (A.I.R. 1969 Supreme Court 73), it has been held that on the strength of equitable ensignment, on the amount due, under a decree, or so much of that amount as was necessary for discharging the debts due to the Bank in its favour, the bank could execute the decree in view of the provisions of Section 145 of the Code of Civil Procedure. In the decision reported in Bharat Nidhi Limited v. Takhatmal (A.I.R. 1969 Supreme Court 313), it was held that in case where the bank holds power of attorney to collect bills due to the executant towards Bank advances and an order of payment to bank is endorsed on a bill sent for collection, it was an equitable assignment of specific fund and not a pay order and therefore, it could not be attached by the creditor to the person who had executed the power of attorney in favour of the bank. The above two rulings would indicate that in respect of an actionable claim, mere assignment will do and there is no necessity for any written document executed to enable the bank to realise the amount due. 13. It has been held in the decision reported in State Bank of India v. Venkateswara Stores (1987 Bankers Journal 633 = 100 L.W. 263), in a case where loan taken by ‘A’ from bank on execution of hypothecation bond followed by execution of power of attorney enabling and conferring right to receive debt and give discharge to debtor, no third party could claim any right over the same. The claim of the plaintiff, therefore, cannot be entertained since the plaintiff is only a third party and the loan has been taken by the second defendant from the bank and assignment of the rental due by the bank to the second defendant has been made by the Company. In that view, I am of opinion that the claim of the applicant plaintiff that the rent payable by the garnishee Bank to the second defendant is liable to be attached by means of a pro-order towards the loan availed by the first defendant for which the second defendant stood guarantee, is not tenable and the application for attachment by the pro-order has to be dismissed vacating the interim order already made. 14. In the result, A. No. 484/1995 is dismissed allowing Application Nos. 3109/1995 and 3110/1995. Interim order of attachment by pro-order is vacated.