- (1.) This is a suit on an overdraft account. The Defendant No. 1 was the borrower. Promissory notes, deeds of hypothecation and other documents were executed by the Defendant No. 1 from time to time since 1946. The limit of the overdraft was also increased from time to time. The rate of interest was varied as well. Kartick Charan Mullick, since deceased, had personally guaranteed the repayment of the loans to the Bank and executed an equitable mortgage of a property at Marquis Lane in Calcutta. Upon the death of Kartick Charan Mullick the Defendants Nos. 2 and 3 who are his executors also gave personal guarantees along with the Defendant No. 4 who was a Director of K.C. Mullick and Sons Ltd.
(2.) The Defendant No. 1 went into liquidation on September 8, 1958. This order for winding up necessitated certain amendments to the plaint which were effected under an order of this Court made on February 24, 1964. It appears that all the deeds of hypothecation executed by or on behalf of the Defendant No. 1 till March 26, 1964, were registered in accordance with the provisions of the previous Companies Act. But the deeds executed on March 5, 1957 were not registered. The result is that under Section 125 of the Companies Act of 1956 these deeds are void against the Liquidator.
(3.) Mr. R.C. Kar appearing for the Liquidator has argued before me that the Plaintiff originally filed this suit on the 1957 group of documents treating them as documents on which the Plaintiff's claim rested. In Clause (c) of the prayers in the original plaint a declaration of charge was asked for in terms of the deeds of hypothecation, of March, 1957. When the Liquidator pointed out that these documents of 1957 could not be availed of against him, the Plaintiff asked for amendments and in the amended plaint a declaration of charge was claimed both on the deeds of 1954 and those of 1957. Mr. Kar then said that there was ample internal evidence to show that the Plaintiff accepted the 1957 documents in substitution of the 1954 documents. In the 1954 documents the limit of the overdraft was Rs. 2,50,000. In the 1957 documents the limit was Rs. 2,72,013-8-2 p. In the promissory note and the deeds of hypothecation executed in 1957 the increased limit of Rs. 2,72,013-8-2 p. has been mentioned. Then again, the deeds of hypothecation of 1957 create, according to Mr. Kar, charges by themselves and do not refer to the earlier documents. Moreover, when the 1957 documents were executed Kartick Charan Mullick had died; his guarantee had lapsed; and separate letters of guarantee were taken from the Defendants Nos. 2, 3 and 4.;