HERBERT CARBERRY Vs. CLARK AND GREIG LTD

JUDGEMENT

(1.) The plaintiff sold to the Thaton Sugar Works, Ltd., machinery and plant required for their factory, and a letter, dated 5 February 1934 from the managing agents of the Sugar Works to the plaintiff, contains a confirmation of the agreement that the machinery was to remain the property of the vendor until paid for in full. In the middle of March 1934 the Sugar Works, although they had only paid a part of the purchase price to the plaintiff, purported to mortgage the machinery and plant to Clark and Greig, Ltd., who in the following year sued on their security in the District Court of Thaton in Burmah and got a receiver appointed The Sugar Works went into voluntary liquidation and the mortgagees had the machinery and plant sold in the mortgage suit, with the consent of the liquidators for Rs. 95,000.

(2.) The plaintiff alleges that this price was grossly inadequate and he has brought a suit in this Court for, among other reliefs, recovery of the balance of the purchase money due to him and for a declaration that his rights over the sale proceeds have priority over the rights of the mortgagees. The plaintiff's claim is for Rs. 57,000 odd while the mortgagees are seeking to withdraw over Rs. 71,000. The Sugar Works and the mortgagees are defendants to the suit. The plaintiff in this application seeks an injunction restraining the mortgagee-defendants from withdrawing the sale proceeds from the District Court, Thaton, in Burma.

(3.) The mortgagees oppose the application on two main grounds. First, that the suit will not lie for want of jurisdiction, and no injunction will be granted in an invalid suit. It is true that Clark and Greig, Ltd., carry on business in Burma, and, even if the original contract to purchase the machinery gives this Court jurisdiction to entertain the suit, they were not parties to that contract; but that does not of necessity prevent them from being proper parties to this suit. Leave to sue has been granted under Clause 12 of the Charter and until that leave is revoked I am of opinion that the suit lies. The objection is based on the invalidity of the suit, and if the suit is valid the objection goes. However there is authority that the grant of an interlocutory injunction does not depend on the validity of the suit in which the application is made. Secondly it is urged that the Court will not grant an injunction against a person outside its jurisdiction.