TMI Blog1928 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ecute a formal mortgage deed in respect thereof, and to keep and ply the car in Bombay and transfer the same to Laduok whenever called upon by him to do so. She further agreed not to sell or assign the car before paying off the debt. Since the assignment of the promissory note to the plaintiff, the plaintiff has paid ₹ 216 on March 16, 1928, as premium for the renewal of the insurance of the car. 2. The first defence to the suit is that the defendant is an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act and that this Court has no jurisdiction to try the suit. 3. The defence on the merits is that the plaintiff is not a holder in due course. The defendant admits the dealings between herself and Laduok, and admits that she agreed to hypothecate the car to Laduck to secure the money due to him. She alleges that when she handed over the car to Laduck the latter agreed to pay her ₹ 4 every day and agreed to credit the balance of the net income in her account with him, She further alleges that Laduck failed to carry out the agreement and pressed for payment, and therefore, as a result of great pressure brought on her by Laduck and as a resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to enforce his charge on the car pledged to Laduck. He prays for a declaration that there is a valid charge in his favour on the car to the extent of the amount due to him. The plaintiff further prays for the appointment of a receiver, and that the car may be sold by and under the directions of the Court, and the sale proceeds applied towards the payment of the plaintiff's claim, In para. 4 of the written statement the defendant admits what she calls an agreement of hypothecation in favour of Laduck but in para, 5 she admits that the car was hypothecated to him. In her writing of September 1, she states the car continued to be mortgaged to Laduck. It seems to me on the correspondence, the promissory note and the pleadings that the transaction between the plaintiff and the defendant was one of pledge. If then the plaintiff is a holder in due course, he is undoubtedly entitled to a charge on the said car and to enforce the same against the defendant. Under Section 8 of the Transfer of Property Act, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.R(1898) . Cal. 381. Sir Francis W. Maclean C.J. observed (p. 388):- We must read the language of the Legislature if we can, so as to make it harmonize, and not conflict, with the general law, though remembering at the same time that the office of the Legislature by its legislative Acts is to define and even alter, the law. 11. In Shivram Udaram v. Kondiba Muktaji (1884) I.L.R. 8 Bom. 340 West J. observed as follows (p. 346):- In construing Act I of 1868 (General Clauses Act), and Act XXII of 1882 (an Act) to amend the Dekkhan Agriculturists' Belief Act) together with the Code of Civil Procedure we must ascribe to the Legislature, as far as possible, the congruity of thought necessary for making its enactments work harmoniously together as a system. 12. It is clear that the usual rule of interpretation of statutes is that a statute encroaching on the ordinary jurisdiction of a Court must be construed strictly. 13. Now a careful consideration of the apparent scheme of the Act would show that suits mentioned in Clause (w) are of a pecuniary character arising out of contracts whether written or unwritten. Then Clause (a;) refers to certain other suits, and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. It is clear that the transactions mentioned in these sections are the same as those mentioned in Section 3, Clause (w). A comparison of the words in Section 16 with those in Clause (w) shows clearly that the debts in respect of which an account may be sued for are those not secured by mortgage, and it is only in respect of such debts that Section 17 authorizes an order for payment by installments. In Shankarappa v. Dunappa I.L.R(1881) . 5 Bom 604 the question arose whether in the case of a mortgage decree installments could be granted under Section 20 of the Dekkban Agriculturists' Relief Act. The Court observed as follows (p. 607):- Comparing the words of Section 16 with the words of Section 3, Clause (w), it is clear that the debts in respect of which an account may be sued for, are debts not secured by mortgage, and that it is only in respect of such debts that Section 17 authorizes an order for payment by installments The words, 'decree passed against an agriculturist' in Section 20 of Act XVII of 1879 mean a decree passed against tn agriculturist personally, and do not include a decree for the recovery of money by the sale of mortgaged property Reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the following observations occur (p. 23) :- There can be no doubt that when moveable property is pledged to a person for money lent, he acquires a special property therein : he has a charge upon it for the satisfaction of the loan advanced, and be is entitled, under Section 175 of the Contract Act, either to bring a suit against the owner upon the debt or promise, retaining the goods pledged as collateral security, or he may sell the things pledged upon giving reasonable notice of the sale. And when he brings a suit for the purpose of a declaration of his right to sell the article pledged for the satisfaction of his claim, the suit is one to enforce his charge upon the said articles. 23. The same principles were laid down, and the Calcutta case followed, in Mahalinga Nadav v. Ganapathi Subbien I.L.R(1890) . 15 Bom. 30. It was further pointed out in this case that in the case of hypothecation or mortgage of movable property the same principles would apply. 24. Therefore, the claim of a pawnee to recover moneys advanced by him by sale of property pledged is a claim to enforce his charge upon the property. 25. In Kashiram Mulchand v. Hiranand SurairamI.L.R(1890) . 15 Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
