BHABANI CHURN LAW Vs. TULSI CHANDRA GOSWAMI

JUDGEMENT

(1.) This is an appeal from an order of Gentle J, discharging a receiver, appointed by this Court in the following circumstances. The respondent, Tulsi Chandra Goswami, borrowed Rs. 6,50,000 from the appellants Bhabani Churn Law and Satish Churn Law on 6 September 1937 and executed in favour of the appellants an English mortgage of the greater part of his zemindari properties. One of the terms of that mortgage provided as follows: It is hereby further agreed by and between the said parties that upon a suit being filed by the mortgagees or any of them or their or any of their heirs executors administrators representatives and/or assigns upon these presents, the mortgagees may forthwith and before the filing of the written statement or appearance in such suit by the said mortgagor, his heirs executors administrators representatives and/or assigns and without any further consent on his or their part than is herein contained may with the sanction of the Court get appointed such person or persons as they in their absolute discretion may nominate as fit to be the Receivers of the rents issues and profits of the mortgaged premises...."

(2.) The appellants instituted a suit for the enforcement of the mortgage on 16 January 1939 and applied to the Court for the appointment of a Receiver. Mr. S.N. Chatterjee Barrister-at- Law was appointed Receiver on 6 February 1939 and on that same date a preliminary decree was passed by consent in the mortgage suit. It was provided in the preliminary decree that Mr. S.N. Chatterjee be appointed Receiver of the mortgaged properties and of the rents issues and profits thereof, with instructions how to deal with the income. The material portion of those instructions is as follows: 5. Besides the usual powers the Receiver will have power to make settlement of the lands appertaining to the properties comprised in the mortgage with the previous consent in writing of the mortgagor and the mortgagees and to apply the selami and other moneys realised on such settlement in manner following: (a) On payment of the costs charges and expenses of the Receiver and the mortgagees of and incidental to any such transactions to be certified by two respectable attorneys of the Court. (b) On payment of the balance to the mortgagees towards satisfaction of their claims firstly towards interest and then towards principal for the time being due. 6. As regards other collections the same to be applied by the Receiver in the manner following: (a) In payment of all rates taxes ground rent Government revenue, cesses, amounts due to the superior landlords including arrears and other overhead charges including annuity with arrears if any payable to Rani Bakulmoni Devi the mother of the defendant and all other outgoings in respect of the mortgaged properties. (b) In payment of the Receiver's monthly remuneration and his establishment charges including office rent and other incidental expenses. (c) In payment to the mortgagees towards their claims firstly for interest due and to accrue due to them including arrears and secondly towards part satisfaction of their claims.

(3.) The Receiver took possession of the mortgaged properties under this preliminary decree on or about 28 March 1939. Shortly thereafter, the respondent applied to the Court of Wards under Section 6 (e) of Bengal Act 9 of 1879 to be declared a disqualified proprietor. On 17 April 1940 an order was passed by the Court of Wards that the Court of Wards is pleased to declare that the said Mr. Tulsi Chandra Goswami is a disqualified proprietor within the meaning of that section and that it is expedient in the public interest that the portion of the estate which is not in charge of the Receiver, appointed by the High Court should be managed by the Court of Wards....