D E D COHEN Vs. BAIDYANATH MUKHERJEE

JUDGEMENT

(1.) The plaintiff Cohen on 27 July 1928 executed a mortgage of the premises 57, Ballygunge Circular Road in favour of Miss Mary Jones. The property was already subject to prior mortgages in favour of the Administrator General of Bengal, but the rights of the prior mortgagee are not in dispute in the present action. The mortgage in suit inter alia provided that it should be read and construed as an English mortgage as defined by the Transfer of Property Act, 1882, and that the power of sale and all other powers and provisions ancillary or auxiliary thereto conferred upon a mortgagee by the said Act or by Secs.6 to 19 inclusive of the Trustees and Mortgagees Powers Act (28 of 1866) or any statutory modification thereof should be incorporated therein, (which includes the power to appoint a receiver) but without the restriction in the last mentioned Act contained as to giving notice. On 16 June 1933 interest on the mortgage was admittedly over six months in arrears, and Miss Mary Jones, through her constituted attorney Mr. Deveria, acting under the powers contained in the Trustees and Mortgagees Powers Act and incorporated in the mortgage, appointed the defendant Baidyanath Mukherjee receiver of the mortgaged premises.

(2.) The plaintiff thereupon brought a suit in the Court of the Second Munsif at Alipore in 1934 for a declaration that the appointment was illegal and for an injunction restraining Mr. Mukherjee from taking possession of the mortgaged premises or from realizing rent from the tenants. The trial Court granted the relief claimed, but the District Court reversed that decree, and the High Court in second appeal upheld the decree of the District Court. By the decision of the High Court in appeal, which is reported in David Elias Duck Cohen V/s. Baidyanath Mookerjee , it has been finally decided that the mortgage is an English mortgage and that Mr. Mukherjee's appointment as receiver was valid. The High Court on 12 June 1935 had appointed the defendant receiver under the Court pending the hearing of the appeal and he was formally discharged as such receiver after passing his accounts by an order of the Court of the Second Munsif at Alipore on 11 September 1936. That order provided that after passing his accounts a sum of Rs. 2152 remained in the hands of the receiver out of which Rs. 179 was to be paid to Mr. Cohen and for the balance Rs. 1973 the receiver was to be "answerable to Miss Mary Jones and Mr. Cohen as provided for in law as receiver." Mr. Cohen tried to have this order reconsidered and to re-open the receiver's accounts, but his application was dismissed on 13 May 1937, ten days after he had filed the present suit.

(3.) It follows therefore that the defendant was validly appointed as a receiver by the mortgagee on 16 June 1933, and that he continued in that capacity until 12 June 1935, when he became a Court receiver until discharged as such by the Court on 11 September 1936. On 4 February 1937 a meeting was held at the office of the Administrator General at which the present plaintiff, Miss Jones, and the Administrator. General were represented and an agreement was arrived at for the liquidation of the plaintiff's debts. The Administrator. General was to lend the plaintiff a sum of Rs. 75,000 which was to be applied in satisfaction of the existing mortgages. Out of this sum Rs. 24,000 was to be paid by the Administrator- General to Miss Jones and the plaintiff was to pay a further Rs. 3000 either out of arrears of rent in respect of the property or from any other source available to him. The parties agreed inter alia that "until the transaction is ready for completion Miss Mary Jone's receiver under her mortgage shall not be discharged by her", but that he should not, in the mean time, make any further collections.