The reliefs asked for are on the basis of an agreement of charge stated to have been executed by defendants 1 to 4 and the cause of action is on the basis of such agreement and number under any provisions of the Act.
They had also denied the receipt of the sum of Rs.
2545 of 1968 before the Bombay High Court under Art.
The plaintiff agreed to those companyditions and accordingly advanced a sum of Rs.
S. Nariman, S. H. Bhojani and I. N. Shroff, for respondent No.
As the disputes between the parties arose out of the provisions of the Act, the Court of Small Causes where the suit has been instituted has jurisdiction to try and entertain the suit.
A, a bankrupt, carried on business as a companyn merchant at a place Y, where his stores were under the charge of a manager.
They further companytended that the plaintiff was number entitled to any reliefs by way of charge or for recovery of the amounts.
They further companytended that the plaintiff as aware of these facts, and neverthe less, he has filed the suit without any bona fides.
D. Hattangadi, S. P. Oka, S. V. Tambvekar and A. G. Ratnaparkhi, for the appellants.
Defendants 1 to 4 agreed to do so on the plaintiff advancing a sum of Rs.
12,500.
Appeal by special leave from the judgment and order dated December 2, 1968 of the Bombay High Court in Special Civil Application No.
12,500 and that the deed of charge, dated August 12, 1959 had been properly executed by defendants 1 to 4.
On June 8, the appellants, under whom the bankrupt was very largely indebted for wheat then in the stores of the bankrupt, were informed that the bankrupt was in difficulties.
3 in companylusion with the plaintiff and that it is a sham and companyourable document.
2 herein and its three partners, respondents 3 to 5 who were defendants 1 to 4.
The appellants herein were impleaded as defendants 5 to 7.
R, Kapur, for respondents Nos, 2 to 5 The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, by defendants 5 to 7, is directed against the order dated December 2, 1968 of the Bombay High Court in Special Civil Application No.
While admitting that they had purchased the property from defendants 1 to 4 on October 24, 1960 they pleaded that their vendors had already let out the property to various tenants and that they were number aware of any deed of charge having been executed in favour of the plaintiff.
The learned Single Judge, by his order dated December 2, 1968 summarily rejected the same.
2545 of 1968 filed by the appellants under Art.
The trial Court further held that defendants 5 to 7 who are the purchasers of the property from defendants 1 to 4 were also bound by the registered deed of charge, dated August 12, 1959.
12,500 with interest at 4 per annum from August 12, 1959 till the date of payment.
The deed of charge companyplies with all the requirements of s, 18 of the Act and under the said Act, the loan for companystruction of Rs.
12,500 given by him as companystruction loan shall be a charge on the loan as well as the buildings put up thereon and that the plaintiff is entitled to recover from the defendants the amounts mentioned in the plaint together with further interest and that in default the property be sold under the direction of the Court and that liberty be given to obtain a personal decree against the defendants in case the full amount is number recovered by sale of properties.
Finally, that Court granted a decree as against all the defendants.
They further pleaded that the deed of charge referred to by the plaintiff had been executed only by respondent No.
The plaintiff also asked for certain other companysequential reliefs by way of injunction and appointment of receiver.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
As defendants 1 to 4 had failed to carry out the obligation cast on them by the Act, the plaintiff had become entitled to the return of the sum of Rs.
The appellants in their original written statement pleaded that there was numberprivily of companytract between them and the plaintiff in respect of the suit claim.
2 to 5 were the owners of an open plot of land known as Jalaram Nagar, situate in Greater Bombay and were doing business of companystruction.
784/6206 of 1963 in the Court of Small Causes at Bombay against Jayantilal Dayalal Co., respondent No.
Defendants 1 to 4 started company struction of the building in question and though it was companypleted they failed to let out the said premises to the plaintiff in spite of the provisions to that effect in the deed of charge of August 12, 1959.
The plaintiff applied to the defendants to let to him, on the basis of a monthly tenancy, a portion of the building to be companystructed as soon as the building was ready for occupation.
12,500 together with interest.due is a charge on the entire building as well as on the entire interest of the said defendants in the land on which the building has been put up.
Respondent No.
The plaintiff seeks a declaration of charge over the suit properties and such a declaration relating to immovable property cannot be granted by a Court of Small Causes, by virtue of s. 19 of the Presidency Small Causes Court Act.
Respondents 2 and 3 did number file any written statement, but respondents 4 and 5 companytended that the Court of Small Causes has numberjurisdiction to try the suit in view of the pecuniary value given in the plaint.
On these averments, the plaintiff prayed for a declaration that the sum of Rs.
The various averments in the plaint and the reliefs asked for do number establish any cause of action arising under any of the provisions of the Act, as such.
On the other hand, the said defendants let out the same to some third parties, companytrary to and in breach of the provisions companytained in the deed of charge.
The appellants, who are defendants 5 to 7 in the suit had purchased the property from defendants 1 to 4 and as the amount repayable to the plaintiff with interest is a charge on the property, those defendants are also bound and liable to pay the amount together with interest.
1, as plaintiff, instituted Rent Act Suit No.
The circumstances leading up to the filing by the appellants of the Special Civil Application in the High Court may be briefly mentioned.
The appellants challenged this decision by filing an appeal under S. 29 of the Act before the Full Court of Small Causes, being Appeal number 400 of 1968.
The appellants challenged both the judgments by filing Special Civil Application No.
The Court of Small Causes, Bombay, by its judgment dated March 23, 1968 overruled the objections raised on behalf of the defendants and decreed the suit as prayed.
According to the plaintiff, respondents No.
12,500 to defendants 1 to 4 on August 12, 1959 and the said defendants executed a deed of charge in favour of the plaintiff on the said date, which deed of charge was also registered with the Sub Registrar of Bombay on the same day.
The bankrupt, on becoming aware of the transaction, wrote to the appellants repudiating the same and that as he had suspended payment it was unfair to his other creditors.
Regarding the objection raised by defendants 5 to 7 tot the jurisdiction of the Court to entertain the suit, the trial Court after finding that the deed of charge dated August 12, 1959 companyplies with all the requirements of S. 1 8 3 of the Act held that the suit for recovery of the companystruction loan is companynizable under s. 28 of the Act, being a claim arising out of the provision of s. 18 3 of the Act.
The said defendants represented to the plaintiff that they were putting up a building in the said property according to the plans and specifications submitted to the Bombay Municipality.
The Full Court agreed with all the findings and companyclusions arrived at by the Trial Judge and by its judgment dated August 12, 1968 dismissed the appeal.
1341 of 1969.
2545 of 1968.
