TIMOTHY BOWEN ALSO KNOWN AS TIM BOWEN MANOR LANE Vs. CLENERGEN CORPORATION A COMPANY INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA

JUDGEMENT

(1.) BEING aggrieved by the dismissal of the application in A.No.5097 of 2011 and declining to grant leave to sue, plaintiffs have preferred this appeal.

(2.) CASE of appellants is that the 1st appellant is a resident of United Kingdom. 2nd and 3rd appellants are Companies incorporated in United Kingdom. On 24.1.2011, an Agreement was entered into between the 1st appellant and 1st respondent, being the Bridge Loan Agreement, which was effective from 24.5.2010. In terms of the Bridge Loan Agreement, the 1st respondent confirmed that the 1st appellant had given a loan of GB Pounds 110,000/- (GB Pounds One hundred and ten thousand only) being approximately US $ 180,000/- (United States Dollars Hundred and Eighty Thousand only) to the 1st respondent. The Bridge Loan was to part finance the acquisition of a 1.5 MW anaerobic digestion plant near Salem. Clause 6 of the Bridge Loan Agreement inter alia provided that the loan should be repaid within ten months following the draw down date of the Loan. As per the terms of the Agreement, Bridge loan ought to have been repaid by 24.3.2011; however, it has not been repaid. On 31.8.2011, the 1st respondent issued a settlement letter offering certain terms for settlement of the debts owned to the appellants amounting to US $ 400,000 and also with regard to the shares that were being held by the appellants in the 1st respondent. The Settlement agreement (dated 31.8.2011) was signed on behalf of the 1st respondent by the 4th respondent.

(3.) UPON consideration of the application, the learned single judge passed an elaborate order holding that mere seeking declaration that the appellants have first charge over the property with consequential relief of mandatory injunction to create charge over the immovable property cannot take out a suit from purview of being 'suit for the land'. The learned Judge further held that the main relief claimed by the appellants is for specific performance of agreement to create mortgagee's right on the immovable property to secure the amount. Referring to the citations relied on by the appellants i.e., ADCON ELECTRONICS PVT. LTD. VS. DAULAT AND ANOTHER ((2001) 7 SCC 698) and S.V.SUBRAMANIAN VS. CYPRESS SEMICONDUCTOR TECHNOLOGY INDIA PRIVATE LIMITED AND OTHERS, (2008(1) CTC 471), the learned judge held that those judgments are of no assistance to the appellants. Observing that the reading of the pleadings in the judgment shows that the suit is in fact a suit for specific performance of agreement to create mortgagee's right to secure the amount, the learned judge dismissed the application declining to grant leave.