COOK AND CO Vs. CLPHILLIPS

JUDGEMENT

(1.) The insolvent, Charles Spooner Hart, was adjudicated in the Court of the District Judge, 24 Parganas, on 21 January 1929. By an indenture dated 23 February 1925 the respondent in this appeal, C. L. Phillips, leased to the insolvent certain land in Dover Lane Ballygunge, in the suburbs of Calcutta, for a term of 30 years, at a progressive monthly rent ranging from Its. 3,000 to Rs. 3,700. The insolvent carried on business as a horse dealer and veterinary surgeon and occupied the demised premises for the purposes of that business. The lease provided that all buildings or structures which should be erected by the lessee should at the expiration or determination of the tenancy, become the property of the lessor. It further provided by a separate clause as follows: (b) And that all buildings and erections hereafter erected or put up by the lessee on the said demised premises and all fixtures and partitions thereon shall belong to the lessor at the expiration or sooner determination of the said term, but that it shall be lawful for the lessee having first paid and discharged the rent payable hereunder, and having observed and performed all covenants and conditions on the part, of the lessee herein contained at the expiration or sooner determination of the said term or within two calendar months thereafter, to take down and remove for his own benefit all machinery, plant, tenants, fixtures and fittings used or employed in or about any building which the lessee has erected or may erect upon the said demised premises without materially damaging the buildings then standing thereon by such removal.

(2.) The lease further contained a proviso for re-entry in case the rent should remain unpaid for 15 days. By August 1928, the lessee had fallen into arrear with the rent and on 21 of that month he wrote to the lessor's agent: In view of the fact that the rent of the above premises is in arrear, and your client Mr. Phillips, the landlord of the premises, desires to take over possession of the premises in accordance with the terms of the lease, we hereby consent and agree to his terminating the lease and entering into possession.

(3.) On the same date, according to the landlord and his witness, Miss Alton, the landlord went with her to the premises taking some durwans with him and took possession thereof. There was, however, some delay on the part of the insolvent in giving vacant possession, and on 15 September, when the insolvent filed his petition in insolvency, his livestock and effects were still upon the premises and the business was still being carried on more or less actively. A receiver having been appointed on this date, it appears that he took charge of the insolvent's business and effects and on 20 September he-was directed by the Court to sell the livestock, goodwill, stock-in-trade and machinery subject to all risks at a price not less than Rs. 15,000. The sale was held on 24 September 1928 on which date Messrs. Cook and Company, the appellants, purchased the same for the sum of Rs. 15,500.