JNAN CHAND CHUGH Vs. JUGAL KISHORE AGARWAL

JUDGEMENT

(1.) This is a suit for a declaration that the decrees passed by this Court on 20-1-1958 and 18-8-1958 in suit No. 1182 of 1957 are invalid and illegal and not binding on the plaintiff, for an injunction restraining the defendants from enforcing the said decrees or taking any steps thereunder and for other incidental reliefs.

(2.) The facts of the case fie in a very short compass. The plaintiffs father Ratan Chand Chugh deceased entered into an agreement on 9-6-1953 with the defendants herein whereby the latter agreed to lend to the borrower from time to time as and when required a total sum of Rs. 1,00,000/ for the purpose of the borrower's business. There is a recital in this document that in order to secure the proposed loan the borrower had agreed to execute, whenever called upon, a formal legal charge over his entire machinery and fixtures as specified in the schedule to the document. In pursuance of the above agreement and in consideration of a sum of Rs. 1,00,000/- the plaintiffs father Ratan Chand Chugh executed a mortgage in favour of the defendants herein of properties set out in the schedule to the deed of 4-8-1953. The mortgage was registered in Book No. 1 of the Registrar of Assurances, Calcutta. Ratan Chand Chugh was the sole proprietor of the Arim Tin and Steel Works at 258/4 Upper Circular Road, Calcutta, which is beyond the local limits of the original jurisdiction of this Court. The deed was in the form of an English mortgage to secure a sum of Rs. 1,00,000. Ratan Chand was only a monthly tenant of the land on which the factories stood. The properties charged include hinges, pull drawers, door bolts and belt lacing and machinery, described more fully in the schedule to the deed, As a matter of fact there are two factories one at the premises already mentioned and the other at 246, Maniktola Main Road, Calcutta, also situate outside the original jurisdiction of this Court. Below the list of machinery given in the schedule there is an endorsement reading "machinery, fixtures at premises No. 246, Maniktola Main Road and 258/4, Upper Circular Road, Calcutta". The only other thing of any significance mentioned in the deed is a statement that

(3.) On 5-7-1957 the mortgagee filed a suit on the mortgage with leave under Clause 12 of the Letters Patent on the ground that the money was advanced in Calcutta and the mortgage executed within the jurisdiction of this Court. The prayer in the plaint was that a mortgage decree should be passed in Form No. 5 or 5A of Appendix D to the first schedule of the Code of Civil Procedure. Immediately thereafter the mortgagee applied to this Court for the appointment of a Receiver. The mortgagor filed an affidavit-in-opposition thereto contending, inter alia that this Court had no jurisdiction to try the said suit inasmuch as the properties mortgaged were heavy machinery imbedded and permanently attached to and fixed in the earth and were, immoveable property. Bose J., who heard the application, appointed the Official Receiver a Receiver over the mortgaged properties. The plaintiff preferred an appeal therefrom taking the same point as to jurisdiction. Thereafter there was a compromise between the par-tics whereby a preliminary mortgage decree was made on consent on 20-1-1958, the plaintiff undertaking to withdraw the said appeal. A final decree was passed on the basis of the, said preliminary decree on 18-8-1958.