CENTRAL BANK OF INDIA Vs. NATHMALJI AMOLAKCHAND

JUDGEMENT

(1.) THE Plaintiff - Bank had advanced monies to the First Defendant under different credit facilities against hypothecation of all movable goods and book debts. On 7th October, 1985, Defendants 3 to 6, who are the guarantors of the monies advanced to the First Defendant, executed an undertaking in favour of the Plaintiff - Bank that they would be depositing the title deeds of their property at Silvassa as soon as they receive the same from Gujarat State Financial Corporation, Ahmedabad. The undertaking was signed by Defendants 3 to 6, who are the partners of the Second Defendant-firm. The agreement of Hypothecation of movable properties is at Exhibit 'E-1'. The Deed of Hypothecation of book debts is at Exhibit 'G' to the Plaint ., The Plaintiff has brought this suit for a declaration that the immovable property described in Exhibit 'A' to the planit has been equitably mortgaged in favour of the Plaintiff to secure its outstanding loans and also for a decree for specific performance of an outstanding to create equitable mortgage as evident from the letter of undertaking dated 7th October, 1985. It has also prayed for sale of the hypothecated movable property.

(2.) THERE is no affidavit - in - reply filed by any of the Defendants.

(3.) SECONDLY Mr. Rao contended that the Undertaking dated 7th October, 1985 at the highest, merely amounted to an agreement contingent upon a happening, viz., that the receipt of the title-deeds from Gujarat State Financial Corporation, Ahmedabad, and hence, it was not capable of specific performance, Prima facie, this argument is unsound. The undertaking is not made conditional, but only provides that as soon as the title-deeds are received, they would be deposited with the Bank.