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Satyanarayan Banerjee and anr. Vs. Dinesh Chandra Roy Choudhury and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal388
AppellantSatyanarayan Banerjee and anr.
RespondentDinesh Chandra Roy Choudhury and anr.
Excerpt:
- .....was not a registered one, and the transaction evidenced by the same could not therefore operate as valid mortgage of immovable property under the law. it could not affect immovable property specified therein: so far as the immovable property was concerned there was no valid mortgage by the insolvent, against whom the application for adjudication was directed. the learned judge overruling the objection of the official receiver that the document was invalid as a whole, stated in one part of the order that there was 'a valid mortgage of the movables i.e. machineries;' and in the concluding part of the order passed by him definitely stated, and which statement was strictly in accordance with law, that 'so far as the moveables' were concerned, the mortgage was valid, and was not liable to be.....
Judgment:

1. This is an appeal arising out of an insolvency proceeding started at the instance of a creditor. The question raised before the learned District Judge of the 24-Parganas, which has given rise to this appeal was whether the Judge was right in interpreting or confining the word 'moveable' to machineries, as was done by him in his order dated 27th November 1933, when the learned Judge was apparently asked to determine what his predecessor in office meant by 'moveables' in his order of 8th May 1933, passed in Insolvency Case No. 14 of 1931, in the Court of the District Judge of the 24-Parganas. The creditors applying for adjudication, the appellants in this Court, placed before the Court a document purporting to be a mortgage-deed, in which both moveable and immovable properties were hypothecated. The document however was not a registered one, and the transaction evidenced by the same could not therefore operate as valid mortgage of immovable property under the law. It could not affect immovable property specified therein: so far as the immovable property was concerned there was no valid mortgage by the insolvent, against whom the application for adjudication was directed. The learned Judge overruling the objection of the Official Receiver that the document was invalid as a whole, stated in one part of the order that there was 'a valid mortgage of the movables i.e. machineries;' and in the concluding part of the order passed by him definitely stated, and which statement was strictly in accordance with law, that 'so far as the moveables' were concerned, the mortgage was valid, and was not liable to be held void as against the Receiver under Section 54, Provincial Insolvency Act. On the order of the learned Judge passed on 8th May 1933, as it stands taken as a whole, we are not able to hold that the moveables specified in the unregistered mortgage-deed were confined to machineries only. The moveables mentioned in the order, regard being had to the concluding part of the same, must refer to all the moveables specified in the unregistered mortgage-deed.

2. It remains to notice that we were not impressed with the argument advanced on the side of the respondent, that the order of Judge passed on 8th May 1933, could be held to be limited to machineries only, on the assumption that the other moveables mentioned in the unregistered mortgage-deed, vested in the Receiver in insolvency, on the footing that they remained in the possession of the insolvent; and we cannot possibly accept the position indicated in the above argument before us, as sound, regard being had to the provisions of the law applicable to the facts and circumstances of the case before us. In the above view of the question raised in this appeal the order of the learned District Judge, passed on 27th November 1933, is set aside. The Official Receiver is to pay to the appellants the whole of the sale proceeds of She moveables mentioned in the unregistered mortgage-bond, less administration charges. The appeal is allowed; there is no order as to costs in this appeal.


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