1. In Keshavrav v. Bhavanji 8 Bom. H.C. Rep. 142 I have expressed a doubt whether, in the case of an ordinary mortgage in the mofussal, the mortgagee can exercise a power of sale given by the instrument of mortgage. In the present case, although the mortgaged property is situated a few miles out of Bombay, the parties are residents of Bombay, conducting their transactions through Bombay solicitors, and the instrument of mortgage is a regular and formal deed in English form. I think that in this case the parties must be held to have intended to contract with reference to English law, and to be entitled to enforce their rights according to that law: Bholanath Coondoo Chowdry v. Unodapersad Ray 1 Bou. 97 see 101.
2. The deed of mortgage between the parties contains a power of sale to be exercised after a previous notice to the mortgagor. Such a notice was given to the plaintiff on the 21st February 1877, and thereupon, on the 17th March, the plaintiff filed this suit to redeem, and obtained an injunction restraining the defendant from exercising the power of sale. The object of the present appeal is to set aside this injunction.
3. The Subordinate Judge appears to have granted the injunction on no other ground except that, as a suit for redemption has been filed, matters ought to remain in statu quo until the decision of the suit. The case of Rhodes v. Buchland 16 Beav. 212 does not establish the proposition laid down by the Subordinate Judge, viz., that 'a mortgagee cannot sell the mortgaged property under the terms of the mortgage-deed during the continuance of a suit for the redemption of the mortgage.' In that case the Court did restrain the exercise of the power of sale; but the case was a peculiar one, and the person seeking to redeem was not the mortgagor, but a puisne incumbrancer claiming to be entitled to pay off a prior mortgage. As a general rule, when a power of sale has become absolute, the exercise of the power cannot be suspended by the filing of a bill to redeem: Adams v. Scott 7 W.R. 213. If it could be so suspended, the mortgagee might be deprived of his remedy and kept out of his money, for an indefinite time. The owner of the equity of redemption can only stay the sale pendente lite by paying the amount due into Court, or by giving prima facie evidence that the power of sale is being exercised in a fraudulent or improper manner, contrary to the terms of the mortgage.
4. In the present case the plaintiff alleges that the mortgage debt has been fully satisfied: and if he could satisfy the Court that there are good prima facie reasons for supposing that to be the case, the Court might properly restrain the sale. But the Subordinate Judge has not proceeded on that ground, nor is there any evidence at present on record which would have justified him in so doing. Neither is there anything to show that the defendant, in regard to the intended sale, is acting fraudulently or oppressively, or contrary to the terms of the mortgage. The plaintiff's pleader wishes to put in evidence to show that in 1873 the defendant fraudulently endeavoured to have the equity of redemption sold under a decree obtained by a third party. That may be so; but it does not follow that there is any fraud in the defendant's present proceedings.
5. The plaintiff's allegation of full satisfaction of the debt appears inconsistent with the attempt which he makes to show that in 1873 and 1874 he tendered sums, amounting to more than Us. 2,000, which were refused by the defendant. If tenders were made, and improperly refused by the defendant, the plaintiff might have brought his suit to compel the defendant to receive the money due to him, and to reconvey the property. He has admittedly done nothing since the date of the alleged tenders, and has not now paid into Court the money which he alleges that he then tendered, and which, if then due, must be due still.
6. Under these circumstances we must hold that the injunction complained of, was issued on insufficient grounds, and must be set aside. The plaintiff will, of course, be at liberty to apply again for such an injunction, if he can make out a prima facie case, showing that the debt has been fully satisfied, or if he pay into Court a sum which is prima facie sufficient to discharge the debt. Costs on plaintiff.
7. I would reverse the order of the Subordinate Court enjoining the defendant Jagjivan Nanabhai to refrain from exercising the power of sale given to him under his instrument of mortgage, pending the disposal of the suit brought by the mortgagor Shridhar Balkrishna Nagarkar for the redemption of the property, as I consider that the injunction has been granted on insufficient grounds, and without any evidence being adduced sufficient to warrant the exercise of this extraordinary power of the Court. No witness was examined, nor was any affidavit filed, in support of the application for an injunction, and the only verified document on the record is the plaint. When a mortgagee has, in pursuance of a power of sale given to him under his instrument of mortgage, served the mortgagor with notice of his intention to exercise this power, the mortgagor is not entitled to file a suit for redemption, and then ask the Court for an injunction restraining the mortgagee from exercising his power of sale, unless fraud is charged against the mortgagee. To grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed, and to annul one of the chief securities on which persons advancing money on mortgage rely. It would, of course, be otherwise if the notice of sale had been given by the mortgagee after the suit for redemption had been filed.
8. The mortgagor is entitled to have the sale of the property suspended only if he can show either that he has paid off the mortgage lien, or that he has made a legal tender of the amount due which has been refused. In the case before us there is not even prima facie ground shown at present for considering that the mortgage lien has been paid off. And as to a tender of payment having been made, the statements made in support of such are vague and unsatisfactory. So far as the record of the case throws any light on this point, it would appear that the tender or tenders said to have been made through Messrs. Hearn, Cleveland, and Peile were made before the expiration of the period for which the property was mortgaged, and were coupled with a condition that the defendant should, before receiving the money, execute an engrossed reconveyance simultaneously offered for his signature. This would not be a tender which the mortgagee would be bound to accept. Another tender is suggested, but not distinctly alleged. The mortgagor alleges that Rs. 9,864 were deposited with the sarkarkun, in whose jurisdiction the mortgaged salt-pans are, and that the money was returned by him, because the mortgagee did not receive it. There is no distinct allegation that this money was ever tendered to the mortgagee by the sarkarkun or by any one else, and refused. The plaintiff's pleader wishes us to infer that such a tender was made: but, in the absence of evidence, we can draw no such inference; and, as there is no reason shown why the sarkarkun should have undertaken the duty of paying off the mortgage, if we are to infer anything, I should incline rather to the inference that the money was deposited with the sarkarkun, not that he might tender it to the mortgagee, but to secure the sarkarkun from the consequences of his act in letting the mortgagor cancel the power of attorney under which the mortgagee had up to that time been dealing with the produce of the salt-pans, and letting the mortgagor back into enjoyment of the salt-pans.
9. No sufficient grounds for the issue of the injunction granted by the Subordinate Court appear in this case, and I would, therefore, dissolve the injunction, and reverse the order of the Subordinate Court in this behalf. Costs of the injunction matter and of this appeal should be borne by the plaintiff Shridhar Balkrishna Nagarkar.