MANALAL RIKHBAJI Vs. MOHANLAL HARILAL RATHI

JUDGEMENT

(1.) This is a suit to enforce a mortgage dated June 19, 1952. The mortgage is an English mortgage.

(2.) At the instance of the parties, I directed that the first issue as regards jurisdiction of this Court should be tried as preliminary issue. The relevant facts that need be noticed in this connection are as follows: The Plaintiffs who carry on business in Bombay as shroffs and commission agents in the firm name of Messrs. Rikhbaji Manalal and Co., were appointed shroffs and commission agents by the Defendants' firm of Messrs Laxminarayan Bankatlal and Co. to effect certain transactions in Bombay. Admittedly, Defendants Nos. 1, 2, 3 and 4 are brothers. Their business is situate at Lasalgaon in Niphad Taluka in Nasik District. The Plaintiffs' case is that accounts of the previous transactions between the parties were settled and adjusted and at the foot of the accounts a sum of Rs. 25,000/-was found due as on June 15, 1952. The Defendants requested for a further loan of Rs. 10,000/- and ultimately by the indenture of Mortgage dated June 19, 1952, an immovable property of the Defendant situate at Lasalgaon was mortgaged to the Plaintiffs to secure repayment of the aggregate sum of Rs. 35,000/- and interest as mentioned in the mortgage. According to the Plaintiffs, after giving credit for repayments, a sum of Rs. 21,017.65 nP. remained payable to the Plaintiffs as on May 5, 1958, as per particulars annexed as Ex. A to the plaint. The Plaintiffs have filed this suit to enforce the claim for that balance due at the foot of the mortgage. The Plaintiffs have also claimed Interest at 6 per cent on the outstanding principal amount of Rs. 13,505-1-6. The reliefs claimed are usual reliefs for declarations that the amount is due under the mortgage and that the Plaintiffs have a first charge on immovable property and for a decree against the defendants for the amount claimed and in default of payment within the date fixed for redemption for sale of the property. The Plaintiffs have also claimed Receiver of the Immovable property as and by way of interim relief.

(3.) The defendants have raised diverse questions at law and facts by their written statement. It is unnecessary to summarise those contentions here, as the only Issue that I am trying is whether this Court has Jurisdiction to try and entertain the suit. The contention that is made on behalf of the Defendants in that connection is that all the Defendants are admittedly residing outside Bombay and are not carrying on business or working for gain at Bombay. The immovable property mortgaged to the Plaintiffs is also admittedly situate outside Bombay. The Plaintiffs have failed to obtain leave under Clause 12 of the Letters Patent. The Defendants' submission is that having regard to the Plaintiffs' failure to obtain such leave, this Court, has no jurisdiction to try the suit.