SUITI DEVI Vs. BANARSIDAS BHAGWANDAS

JUDGEMENT

(1.) This is a defendants appeal in a suit for possession and damages. The material facts are as follows : Karaundia Industrial Development Co. Ltd., owned a flour mill and an ice factory situated at Aisbbagh, Lucknow. The company went into liquidation and the liquidators appointed by the Avadh Chief Court sold to two brothers. Rangnath Khemraj and Srini-vas Khemraj, the said mill and ice factory for & consideration of Rs. 7,61,000. Rangnath Khemraj and Srinivas Khemraj carried on business in Bombay under the firm name "Messrs. Khemraj. Srikishendas." The purchasers created an equitable mortgage over the said mill and factory in favour of the Central Bank of India Ltd., for a consideration of Rs. 4,50,000. The two brothers were adjudicated insolvent on 9 September 1930, and the property owned by them, including the said mill and the factory, vested in the official assignee. On 17 December 1930, the Central Bank of India Ltd., filed a suit in the High Court of Bombay (Original Side) to enforce their mortgage. The official assignee was made a party to this suit. During the pendency of the suit the High Court appointed Mr. H. C. Captain, the then Secretary of the Central Bank, receiver of the mortgaged property, with power either to work the mill or lease the same for a period not exceeding three years. The receiver was directed; to pay the profits or the rent to the mortgagee bank in part settlement of the claim. On 28th January 1931, a preliminary decree for sale was passed in favour of the said bank. This was followed by a decree absolute on 28 August 1931. The receiver Mr. H. C. Captain granted a lease of the mill and factory to one Devidut Sukhramdas for a period of one year (1 March 1931 to 28 February 1932), on a monthly rent of Rs. 5000. The terms of the lease provided that in case the demised premises were sold either by private sale, or in pursuance of a decree that may. be passed in the mortgage suit instituted by the bank, the lessor could determine the lease earlier by giving three months notice to the lessee. Devidut Sukhramdas, who carried on business under the firm name "SukBramdas Devidut," had executed a power of attorney in favour of Lala Jaganath Bansidhar Banka who was managing the said mill on his behalf.

(2.) After the expiry of the period of one year, though no fresh lease was executed, the lessee continued in possession and paid the monthly rent till his death on 11 January 1942, Devidut Sukhramdas left his widow Mt. Manbhari alias Suitidevi as his sole hair. On 15 January 1942, Mt. Suitidevi executed a general power of attorney in favour of Lala Jagannath Banka who continued to manage the mill and the ice factory.

(3.) In execution of the decree passed in the mortgage suit under an order of the Bombay High Court (Original Side) the mill and the factory were sold and purchased by the respondent Seth Banarsidas Bhagwandas for a consideration of Rs. 8,03,000, on 17 April 1943. On 26 May 1943, under instructions from Mr. Captain the receiver, Ardesir Hormusji and Dinshaw & Co. Solicitors issued a notice to the firm Sukhramdas Devidut to vacate the premises and to give over possession of the properties sold to the purchaser Seth Banarsidas Bhagwandas by the e August, 1943. The sale in favour of Seth Banarsidas Bhagwandas was confirmed by the High Court of Bombay on 21 September .1943, and the receiver was directed to deliver possession to the purchaser forthwith. Possession, however, was not delivered to the purchaser, whereupon another notice was issued by Mr. Captain to the firm Sukhramdas Devidut and to Bai Manbhari, widow of Devidut Sukhramdas, calling upon them to forthwith vacate and hand over possession of the said mill and ice factory to Seth Banarsidas Bhagwandas. Having failed to obtain possession, Seth Banarsidas Bhagwandas instituted the suit, which has given rise to the present appeal, for ejectment, and damages amounting to Rs. 36.000. (1) Firm Sukhramdas Devidut; (2) Manbhari alias Suitidevi widow of Devidut Sukhramdas; and (3) Lala Jagannath Bansidher Banka were impleaded as defendants.