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In Re: Ahmed Alimahomed Khoja - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberInsolvency No. 857 of 1931
Judge
Reported inAIR1932Bom613; (1932)34BOMLR1398
AppellantIn Re: Ahmed Alimahomed Khoja
Excerpt:
.....i find no reason why i should order the examination of hassanalli and ahmed under section 35, they have clearly indicated the documents on which they rely for the purpose of their claim and i do not think any further materials can be property elicited from them by their examination. it may be that in spite of the absence of any express provision for giving possession, but finding that on receipt of the notice demanding payment they were bound not to deal any further with the property, the mortgagors considered it better to deliver over possession of the shop to the mortgagees. that case clearly decides that the rights of a mortgagee of moveable property are not in any way inferior to the rights of a pledgee because the mortgagee has the general estate in the property which is..........hours from the receipt of the notice. it may be a question whether that notice gives sufficient time to themortgagors. but the dispute, if any, about the sufficiency of time could be raised by the mortgagors alone and by no one else, before the possession was taken by the mortgagees. that is so because under the terms of the deed on receipt of a notice calling upon the mortgagors to pay, the mortgagors were bound not to deal with the stock-in-trade and furniture as they were entitled to do before notice. it may be that in spite of the absence of any express provision for giving possession, but finding that on receipt of the notice demanding payment they were bound not to deal any further with the property, the mortgagors considered it better to deliver over possession of the shop to.....
Judgment:

Kania, J.

1. This application is principally for the examination of the alleged mortgagees under Section 36 of the Presidency-towns Insolvency Act and for restraining them from selling the shop, stock-in-trade and furniture pending their examination. On the affidavits filed I find no reason why I should order the examination of Hassanalli and Ahmed under Section 35, They have clearly indicated the documents on which they rely for the purpose of their claim and I do not think any further materials can be property elicited from them by their examination. That application is, therefore, refused.

2. It is contended on behalf of the applicant that the mortgagees have no right, either to take possession of the property or to sell the same, without the intervention of the Court. The document under which the mortgagees make their claim is annexed as Ex, A to the affidavit of Hassanalli and Ahmed dated January 4, 1932. That document creates a floating charge in favour of the mortgagees in respect of the stock-in-trade, furniture, book-debts, and all other choses-in-action, and it is further provided in the deed as follows:-.such floating charge not to restrict our (i. e, the mortgagors') power of dealing with the said stock-in-trade and furniture aforesaid in the ordinary course of business and of receiving and dealing in the ordinary course of business with such debts and choses-in-action until the said Hassanalli Ahmed and slimed Husseinbhoy shall give us or our personal representatives notice to pay the moneys hereby secured or the balance thereof for the time being remaining owing by us.

3. This form is evidently adopted from Form No. 126 in Vol. VIII of Butterworth's Encyclopaedia of Forms. It is true that it does not give any express power to the mortgagees either to enter into possession or to sell the properties, the subject of the charge. The affidavits, however, clearly show that in fact before the insolvency the mortgagees had obtained possession and the mortgagors had not complained that any forcible possession was taken from them. In accordance with the terms of the deed, the mortgagees gave notice to the mortgagors on November 11, 1931, calling upon them to repay the amount, viz., Es, 10,000 within twenty-four hours from the receipt of the notice. It may be a question whether that notice gives sufficient time to themortgagors. but the dispute, if any, about the sufficiency of time could be raised by the mortgagors alone and by no one else, before the possession was taken by the mortgagees. That is so because under the terms of the deed on receipt of a notice calling upon the mortgagors to pay, the mortgagors were bound not to deal with the stock-in-trade and furniture as they were entitled to do before notice. It may be that in spite of the absence of any express provision for giving possession, but finding that on receipt of the notice demanding payment they were bound not to deal any further with the property, the mortgagors considered it better to deliver over possession of the shop to the mortgagees. That is a matter of arrangement amongst themselves, but, on the facts which had transpired before the insolvency, I cannot hold that on the present application I can deprive the mortgagees of their possession. I must, therefore, proceed to deal with the notice of motion on the footing that the mortgagees at the time of this application were in fact in possession of the mortgaged property, without any objection from the mortgagors. Under those circumstances it is clear that a mortgagee has a right to sell the property without the intervention of the Court: see Devergea v. Sandeman, Clark & Co. [1902] 1 Ch. 579 The facts of that case show that the shares were transferred to the names of the mortgagees. That, however, is not material because the judgment was given on the footing that there was a mortgage and not on the footing that there was a pledge. The circumstances in the present case may be considered to be identically the same, because in fact, as I have mentioned above, on the date of this notice of motion the mortgagees were in possession of the properties. That case clearly decides that the rights of a mortgagee of moveable property are not in any way inferior to the rights of a pledgee because the mortgagee has the general estate in the property which is mortgaged to him, Besides, he has the right to sell the property without the intervention of the Court if the mortgagor, after a proper notice is given to him to repay the money, fails to do so, The sufficiency or otherwise of the notice of November 11, 1931, is not a question which arises before me at present and on that point the affidavits are not helpful. If the mortgagees are wrongfully attempting to exercise the power which is given to them under certain circumstances by law, the remedy of the parties would be in damages I do not think that merely because the time to repay is insufficient, according to the contention of the present applicant, I should restrain the mortgagees from selling the property. It should be mentioned that the mortgagors have not raised the point, and although the sale has been stayed in fact for two months since that notice, neither the mortgagors nor the Official Assignee have made any effort to pay or tender the amount claimed by the mortgagees.

4. There will, therefore, be an order for the public examination of the insolvents in terms of prayer (a) of the notice of motion. The application contained in prayers (6) and (c) is dismissed with costs.

5. As regards the books of account the respondents have agreed to deposit the same with the Official Assignee, subject to the Official Assignee giving the respondents reasonable facilities for production and inspection of the books as evidence in support of the respondents' claim to recover the mortgaged debts.

6. The interim injunction granted till the hearing of this application will stand dissolved.


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