BAI RUTTONBAI Vs. FRASER ICE FACTORY LTD

JUDGEMENT

(1.) This suit arises out of a mortgage-deed dated the 30 of January 1907 and made between the defendant Company of the first part, the defendant Dayal Mulji of the second part, and the plaintiff of the third part in pursuance of an agreement of the 26 May 1906. The consideration for this mortgage-deed was a sum of Rs. 1,00, 000 paid by the plaintiff to the Company and a further sum of Rs. 85,000 credited to it by the plaintiff in her books of account. The Company by this deed covenanted with the plaintiff to pay her on the 31 day of December 1917 the sum of Rs. 1,85,000 and in the meantime to pay interest at the rate of 71/2 percent per annum, and in order to secure repayment of the sum advanced or to be advanced with interest the Company by the mortgage-deed demised to the plaintiff for the term of years expressed therein the premises therein described. The Company did also by the mortgage-deed charge with the payment of the mortgage debt the uncalled capital of the Company and all its other property and assets. It was provided by the mortgage-deed that the plaintiff should credit to the Company's account in her books a sum of Rs. 85,000 for making further advances to the Company as it might require, that the plaintiff should allow to the company interest on the sum of Rs. 85,000 or such other sum as the plaintiff might have credited to the Company in her books at the rate of Rs. 5 per cent, per annum from the date or respective dates of such credit or credits, and that the amount of interest payable by and to the company should be made up and adjusted and the balance of such interest paid to the plaintiff by the company on the 31 day of December every year. Liberty was also secured to the Company to repay in part the mortgage debt for the time (sic) in sums not less than Rs. 1000 at a time and in the (sic) of repayment the plaintiff was to receive and credit the same to the Company in part payment and to allow to the Company interest upon such part payments at the rate of Rs. 5 per cent per annum from the dates of the respective payments until the expiration of the term, that is, the 31 day of December 1917; and it was provided that the plaintiff should be entitled to charge to the Company interest at the rate of Rs. 71/2 per cent, per annum on the whole amount of Rs. 1,85,000 for the whole of the term up to the 31stday of December 1917 to the intent that the plaintiff should in any case earn up to the 31 day of December 1917 the difference between the rates of interest on the full amount of the sum of Rs. 1,85,000 and the payments made on account by the company and to the further intent that the Company should not undergo any loss of interest save and except the difference between the different rates of interest on the items on the debit and credit sides by allowing the monies available in its hands for payment towards the discharge of its liabilities to the plaintiff to remain unutilized. Then after enumerating several contingencies provision was made on the happening of any of them in the following terms: "notwithstanding anything herein contained to the contrary the mortgage debt for the time being owing on the security of these presents shall at once become payable as if the due date...had elapsed and in such case all such rights and remedies shall be available to the banker as will be available to her under the terms of these presents upon default being made in payment of the principal money or interest and all other monies hereby secured and the Banker may in such an event in her discretion without any further consent on the part of the Company forthwith enter upon or take possession of the mortgage premises or any of them of which she is not already in possession." By the mortgage-deed the defendant Dayal Mulji guaranteed payment of the mortgage debt and all other monies due to the plaintiff by the Company, By an instrument of the 19 of March 1907 the mortgage deed was rectified.

(2.) It is now common ground that events have happened which have brought into operation the provision contained in the words that I have cited from the mortgage-deed.

(3.) It is in these, circumstances that the plaintiff has brought this suit and by her plaint she prays, among other things, that it may be declared that the debt owing on the security of the mortgage-deed has become payable and that she is and was on the 25 April 1907 entitled to enter upon and take possession of the premises mortgaged to her, and that she may be placed in possession of these premises.