CORPORATION OF CALCUTTA Vs. ARUNCHANDRA SINGHA

JUDGEMENT

(1.) This is a suit by the plaintiff Corporation for Rs. 134-4-9, on account of consolidated rates payable in respect of premises No. 2, Pyari Das Lane, Calcutta, which is a debuttar property, of which defendant 1 is the shebait. Defendant 2 is a lessee of the property under a lease for 70 years granted by the then shebait on 29 November 1917, and defendant 3 is a mortgagee from defendant 2. Defendant 1 alone contests the suit. He contends that the suit is not maintainable, as the plaintiff Corporation is a charge-holder Under Section 205, Calcutta Municipal Act, over the property in suit, and also has charges over other properties belonging to the same defendant, for the enforcement of which it has brought five other suits, some of which have been decreed. His contention is that Section 67-A, T. P. Act, which was inserted by the amending Act 20 of 1929, makes it compulsory for a mortgagee or chargee, who holds several mortgages or charges over the same or different properties of the same debtor, to enforce all such mortgages or charges in a single suit. The plaintiff Corporation's charge arises Under Section 205, Calcutta Municipal Act (Bengal Act 3 of 1923) which provides: The consolidated rate due from any person in respect of any land or building shall, subject to the prior payment of the land revenue (if any) due to the Government thereupon, be a first charge upon the said land or building and upon the moveable property (if any) found within or upon such land or building and belonging to the said person.

(2.) The language of this section, as was stated by this Court in Akhoy Kumar Banerjee V/s. Corporation of Calcutta AIR 1915 Cal 478, is perfectly plain, and the intention of the legislature to make the consolidated rate a first charge upon the premises is obvious. The nature and incidents of such a charge are found by reference to Section 100, T. P. Act, which is in the following terms: Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.

(3.) Among the provisions applicable to a simple mortgage, and so applicable to a charge, are the provisions of Secs.67 and 67-A, T. P. Act. Section 67 defines the rights of a mortgagee "in the absence of a contract to the contrary," and among those rights is the right to obtain from the Court a decree for foreclosure or sale. Section 67-A provides: A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree Under Section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage money has become due.