SURYAKANT NATVARLAL SURATI Vs. KAMANI BROS P LTD

JUDGEMENT

(1.) The plaintiffs, who are the trustees of Kamani Engineering Corporation Limited Employees' Gratuity Fund, had filed Suit No. 308 of 1977 in this court against the defendant company for realisation of amounts due under a mortgage created in their favour by deposit of title deeds made on January 18, 1966. In this mortgage suit, a decree on admission was passed on December 3, 1977. Under this decree, it has been declared that by virtue of the deposit made on or about February 18, 1966, by the defendants with the plaintiffs of the title deeds of the property described in the plaint, the plaintiffs are entitled to the mortgage or charge on the said property. It has been further declared that there is due and owing to the plaintiffs on the security of the said mortgage, the sum of Rs. 20,55,541 for principal and Rs. 1,93,135.92 for interest and other amounts as stated therein; under the said decree, the date of redemption is fixed as December 3, 1980. It is further provided that in the event of the defendants committing default in payment of the said principal sum and interest and costs by the prescribed time, the Commissioner of this court for taking accounts do sell by public auction the said mortgaged property and that the net sale proceeds of such sale or so much thereof as may be sufficient be applied in or towards satisfaction of the said decree and the costs. We are not concerned with the other provisions of this decree.

(2.) On August 3, 1979, a winding-up order was made in respect of the defendant company in Company Petition No. 109 of 1978. The decree on admission is admittedly prior to the order of winding up of the defendant company or the filing of the winding-up petition.

(3.) The applicants contend that no steps can be taken under the said decree by the plaintiffs for the sale of the mortgaged property in question and they further contend that the said decree is not binding on the official liquidator. In support of this contention, they rely upon s. 125 of the Companies Act. Section 125 provides as follows :