SURJAMULL AGARWALA Vs. RAM CHANDRA MISTRY

JUDGEMENT

(1.) By an indenture of mortgage, dated the 24th January 1910 and made between Shyamlal Chatterjee of the one part and the respondents to this appeal, Ram Chandra Mistry and others (hereinafter called the mortgagees) of the other part, Shyamlal Chatterjee, in consideration of a previous advance of Rs. 5,178-11-9 made to him by the mortgagees and of further advances to be made to him by them up to Rs. 20,000 (including the said sum of Rs. 5,178- 11-9), mortgaged by way of floating-charge his beneficial interest in the trade or business of contractor of stone collections, petty contracts and all and every kind of contract works undertaken by him and carried on at Jaiuti and elsewhere under the Quarrying Division, Lower Ganges Bridge, or wherever the trade or business might be carried on thereafter either under the Quarrying Division, Lower Ganges Bridge, or under any one else who employed him, and also all books and other debts then due or thereafter to become due and owing to him on account of the said trade or business either from the Quarrying Division, Lower Ganges Bridge, or from any other source, including all cheques, cash, etc., that he might receive or become entitled to in connection with his said work or business of a contractor that were then existing or which might thereafter be secured by him and all contracts and agreements, benefits and advantages, that had been or might thereafter he entered into with him or which he might or could bo entitled on account or in respect of the said trade or business and also all stock in trade, materials, goods, fixtures, etc., present or future, in connection with the contract business. The indenture contained a provision for the payment of interest on all sums advanced or to be advanced at the rate of Rs. 12 per cent, per annum with half-yearly rests and also a provision that Shyamlal Chatterjee would not without the mortgagees consent in writing charge, hypothecate or mortgage the mortgaged premises.

(2.) The mortgage was presented for registration at Darjeeling on the 26th January 1910 and was registered there on the 2nd February 1910.

(3.) Subsquently by an indenture, dated the 22nd November 1910 and made between Shyamlal Chatterjee of the one part and Surjamull, the present appellant, of the other part, after reciting that (Surjamull had already advanced money to Shyamlal Chatterjee to the extent of about rupees 8,000 and that Surajmull had agreed to make from time to time farther advances not exceeding with the sum already advanced Rs. 20,000 at any cue time which Shyamlal Chatterjee agreed to re-pay with interest at the rate of Rs. 36 per cent, per annum, and that Shyamlal Chatterjee would execute a power of attorney in favour of Surajmull authorising him to receive all monies which should from time;o time be payable to Shyamlal Chatterjee or from the Eastern Bengal State Railway in respect of the work done by Shyamlal Chatterjee in terms of the contract already secured or to be secured in connection with the left or right bank of the Lower Ganges Bridge and would get the power of attorney registered with the Eastern Bengal State Railway authorities, Shyamlal Chatterjee covenanted with Surajmull to pay the sums already advanced with Interest at the rate of Rs. 36 per cent, per annum and not to draw or receive from the Eastern Bengal State Railway authorities any money payable in respect of the said work until the advance and interest were re-paid and not to revoke the power of attorney.