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TMI Blog1930 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... debentures of the Indo-Burma Oilfields [1920], Ltd., and the manner in which the balance of the price was to be paid was set out in detail in the agreement. This agreement was carried into effect by the execution on the 15th January, 1925, of the conveyance, Ex. A, by the plaintiff company in favour of the 3rd defendant, who was a nominee of Kashi Visvanath Co., and who accepted the terms of purchase as set out in the agreement. One of those terms was that the last two lacs of the consideration was to be paid three months after registration of the conveyance, and in pursuance of this Kashi Visvanath Co., and the purchaser, the 3rd defendant, executed on the 15th January, 1925, a promissory note or hundi, payable in 90 days for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on the 20th March, 1928, this suit was instituted for its recovery. In the first plaint the 5th defendant was not joined and it was only in an amended plaint dated the 5th June, 1928, that he was added as a defendant. The plaint in its first three paragraphs sets out briefly the facts as to the sale agreement and the conveyance. Paragraph 4 sets out that in pursuance of the terms of those deeds the pro-note for two lacs was executed. Paragraph 5 stated that the conveyance and other title deeds of the property were deposited with the plaintiff and claims that this was done with the intention of creating an equitable mortgage over the property. Paragraph 5 A was added by an amendment of the plaint on the 7th March, 1929, and runs as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish it, and that it has not been urged again in this appeal. Effectively the defence of the 4th defendant company was that it had no notice of the equitable mortgage claimed by the plaintiff. The written statements were not amended after the addition of para. 5-A to the plaint, but in fact the defence here of the 4th defendant was that it had no notice of this lien, and the defence of the other defendants was that the plaintiff company had abandoned its right to its vendor's charge. The plaint had been signed by one S.D. Behal, as a director of the plaintiff company. In March, 1929, the defence raised a further contention that Behal was not competent to sign the plaint. On this contention the District Judge found that any defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4). Coming now to the questions arising on the appeal and the cross objection I will deal with them seriatim. 1. It is claimed by the appellants that Behal was not duly appointed as a director of the plaintiff company and had, therefore, no authority to sign the plaint or to carry on the suit and that the suit was, therefore, incompetent. When this appeal first came before us this was argued as a preliminary question. We were of opinion that the learned District Judge had wrongly shut out cross-examination as to facts relevant to this question, and for that reason, by our order of the 12th February, 1930, we remitted the case to the District Court for further evidence and for findings on certain issues. ( Vide ; [1931] Comp. Cas. 98 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment was invalid. The question having been raised in proceedings before a Court, I do not think the appointment can be considered to be shown to be invalid until the Court has come to a definite decision on the subject. I do not regard the District Judge's finding on the remitted questions as a decision in this sense; It is merely an expression of this opinion for the assistance of this Court, which now has seizin of the case. The result is that this judgment is the first definite decision as to the invalidity of the appointment. The District Court, in its original judgment, did not decide the question, the view taken by the Judge being that in view of section 86 it was immaterial whether the appointment was valid or not. I hold, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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