SIR JEHANGIR COWASJI JEHANGIR Vs. HOPE MILLS LIMITED

JUDGEMENT

(1.) The plaintiff, Sir Jehangir Cowasji Jehangir as mortgagpe in possession of the property of the first defpndant Company The Hope Mills Limited, instituted tbis suit in August 1903 to recover the moneys due to him under his mortgage and prayed that in default of payment the right to redeem may be foreclosed or the mortgaged premises may be sold. The mortgage is dated the 5 of April 1900. After the date of the mortgage the plaintiff on the 30 of May 1901 had entered into an agreement with the first defendant Company under the terms of which he worked the Mills of the Company. This agreement is mentioned in the plaint and a copy of it is annexed and marked Ex. B.

(2.) On the 26 of January 1904 the plaintiff obtained a decree which is manifestly defective. In the first place the decree is drawn up in conformity with Form 26 and is entitled "Decree on mortgage, mortgagor in possession." The plaintiff at the institution of the suit and at the date of the decree was admittedly in possession of the mortgaged premises and the decree ought to have been drawn up in accordance with Form 28 and not Form 26. Then the decree contemplates an account. It is obvious that an account would have to be taken before the decree could be enforced. There is however in the decree no reference to the Commissioner and no direction whatever for taking accounts. An application for final decree for foreclosure or sale was on the 9 of August 1904 refused on the ground, as the plaintiff himself in his affidavit says,-that the exact amount due to him as first mortgagee was not determined. After this refusal it seems that certain correspondence passed between the parties and an agreement bearing date the 3 of October 1905 was entered into between the plaintiff Sir Jehangir the first defendant Company-and the Compiny's agents. The Company subsequently on the 1 of November 1906 are alleged by the plaintiff to have passed a Resolution for the purpose of entering into another agreement with him.

(3.) On the 19 of October 1907 Jivanlal Choonilal Chinoy claiming to be the senior partner in the firm of Rangildas Bhookun-das and Company, agent of the first defendant Company, obtained on behalf of the Company a Rule Nisi calling upon the plaintiff to show cause " why he should not pass his aocounts as first mortgagee in possession of the moveable and immoveable property of the said first defendant, the Hope Mills Limited before the Commissioner of this Hon ble Court for taking accounts" and why in taking such accounts the Commissioner should not be directed to calculate interest at a certain rate and not at the rate mentioned in the decree. The Rule was argued before me on the 21 of November last when at the outset the first defendant Company's counsel Mr. Raikes abandoned the latter part of the Rule.