9911796707
TMI Blog1970 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... The sum of Rs. 3,50,000 was agreed to be paid in instalments. Rs. 75,000 was agreed to be paid after the execution and registration of the document. The balance was agreed to be paid in six monthly instalments, each to be made on the production of a certificate of an architect certifying that the works valued at more than 50% had been carried out during the month immediately preceding the date of the certificate. The principal was agreed io be paid on or before 31st March, 1965, that is, a period of three years was fixed for payment, The mortgagees were given the right to bring the property to sale out of court under section 69 of the Transfer of Property Act, It is not in dispute that all the instalments payable under the terms of the agreement were duly paid by the mortgagees. The company committed breach of the stipulation made in the document regarding payment of the principal money. But the company and the mortgagees entered into an agreement, by which the company agreed to pay 9 % interest per annum from April 1, 1965, and to execute a supplemental mortgage deed duly registered embodying this term. The mortgagees, for their part, agreed to extend the time for repayment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement regarding the enhanced rate of interest from 8% to 9 % was executed and registered under the Indian Registration Act and under the Companies Act, the mortgagees should be directed to adjust the excess payment of interest towards the amount due under the document calculating interest only at 8%. The mortgagees oppose this application contending that, under the terms of the mortgage deed, they are entitled to bring to sale the entire building including improvements, accessions and accretions, that what has been paid by way of enhanced interest was in consideration of the mortgagees agreeing to give extension of time for repayment of the mortgage amount, that though the subsequent agreement was not registered, payments made by the company have been duly appropriated in terms of the agreement and that, as such, what has been appropriated is not liable to be reopened. Two questions arise for determination and they are : 1. Are the mortgagees liable to adjust the excess payment of interest at 9 % per annum towards the mortgage amount by calculating interest at 8% per annum as stipulated in the mortgage deed ? and 2. Whether wooden partitions, motor pump-set, Missen hut, motor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced, or a copy thereof verified in the prescribed manner, are filed with the Registrar for registration in the manner required by the Act within the time specified. Inasmuch as no document was executed, much less registered, this requirement has not been complied with in the instant case. The argument of the official liquidator is that the charge is not only void so far as the future is concerned but is void from the inception. His argument is that on that basis what has been paid under the void transaction is liable to be adjusted by reopening the transaction. I am unable to accept this argument. The language of section 125 does not give room for the argument that the charge that does not satisfy the requirements of section 125 is void for all purposes. The language is clear in showing that it is void as against the liquidator and any creditor of the company. That means, it cannot be contended that it is void from the inception. The question arose in Tyagarjan v. Official Liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ask the mortgagees to reopen the payments already made and make a fresh appropriation by calculating interest at 8% as per the terms of the mortgage deed by giving credit to the excess payment towards the amount that may be due by such calculation. In this view, I hold that the official liquidator is not entitled to ask for readjustment of the excess payment of interest at 9% per annum. In asking for the exclusion of certain items from the property to be sold for the realisation of the mortgage amount, the official liquidator con tends that those items cannot be called Immovable property within the meaning of the Transfer of Property Act and that, therefore, such items should be excluded. Immovable property is defined in section 3 of the General Clauses Act, 1897, as including land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Section 3 of the Transfer of property Act excludes from immovabie property standing timber, growing crops or grass. The term "attached to the earth" is defined as ( a ) rooted in the earth, ( b ) imbedded in the earth or ( c ) attached to what is so imbedded for the permanent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al enjoyment of the property. To disprove this claim, the mortgagees produced a number of photographs taken of the relevant portions of the building showing the shed, partition walls and the motor shed consisting of corrugated sheets resting on cement posts which are fixed to the earth. At one end of the shed is a room enclosed by walls with a door and window. On one side it is open for ingress and egress for cars and the other side is closed by a wall. The rafters are embedded on the wall and upon the rafters rests the roof. The Missen hut consists of a curve shaped roof made up of corrugated iron sheets. The roof rests on a small wall on either side in which is embedded a wooden rafter to which the roof is nailed. The small wall is intended to prevent rain water splashing into the shed. The wooden partitions inside the rooms rest on walls up to a particular height. Above them are also walls. There is the wooden frame fixed in between the walls up and down. It is not liable to be removed and it is not intended to be removed. Thus, having regard to the nature of these constructions, I do not think that they are temporary constructions not intended for the beneficial enjoyment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
