- (1.) THESE two appeals, one at the instance of the plaintiff, the United Bank of India, and the other at the instance of the defendants excepting the defendants nos. 8 and 9 arise out of a suit for mortgage and recovery of money.
(2.) THE defendant No. 1 Narendra Krishna Roy, since deceased, the defendant no. 2, Khagendra Krishna Roy, the defendant no. 3, Nripendra Krishna Roy and one Harendra Krishna roy, since deceased, were brothers. The defendant no. 4, Suhas and the defendants nos. 5-7 are the sons of the said Harendra Krishna Roy. The defendants nos. 2 and 4, that is, Khagen and Suhas carried on a business under the name and style of Licensees Maharajah cossim bazar China Clay Mines. In connection with the said business, they opened an account with the Bengal Central Bank Limited, now known as the United Bank of India Limited, and the Bank allowed them cash credit loan against bills in their account with the Bank at an interest of 12% per annum with monthly rent. It appears that on February 11. 1933, a mortgage was executed by the defendants nos. 1, 2 and 3 and the said Harendra Krishna roy in respect of the properties described in Schedule A to the plaint and also in respect of premises no: 57, Raja Nabakrishna Street, Calcutta in favour of the Bank as security for repayment of further advances that might be made by the Bank to the defendants nos. 2 and 4. Again, on March 9, 1933, there was a mortgage by deposit of title deeds in respect of the property described in Schedule B to the plaint. It is alleged by the plaintiff Bank that in 1945 the dues in the account standing in the names of the defendants nos. 2 and 4 amounted to Rs. 12038/l4/10p. The said four brothers and the defendants nos. 4-7 executed a registered indenture of mortgage in favour of the plaintiff Bank in respect of the properties described in Schedules A and B to the plaint. It may be stated here, that the properties described in Schedule A belonged to the four brothers, but the property in Schedule B belonged to Harendra Krishna Roy and one Sisir Mukherjee, each having a moiety share. Further, it may be stated that the defendant no. 2 retired from the business in 1938 and it was the defendant no. 4 Suhas who had been carrying on the said business.
(3.) IN 1951-52, the property described in Schedule B was acquired by the Government under the Land Acquisition act, 1894. It is alleged that no notice under Section 9 was served upon the plaintiff Bank, although the L. A. Collector was aware of the fact that the plaintiff Bank was the mortgage in respect of that property and, as such, a person interested. The compensation awarded in respect of the Schedule B property was paid to the defendants by the L. A. Collector. In May, 1953 the plaintiff came to know for the first time about the acquisition and payment of compensation money in respect of the Schedule B property to the defendants. It is contended that due to the act and omission of the L. A. Collector, the plaintiff has suffered serious loss. Accordingly, the plaintiff Bank claims to recover its dues under the mortgage out of the compensation money paid to the defendants, from the State Government and the L. A. Collector who are the defendants nos. 8 and 9 respectively. The plaintiff has prayed for a decree for a sum of Rs. 25,323/217p against all the defendants, for a mortgage decree for sale of the properties described in Schedule A to the plaint and for a personal decree, if and when asked for on account of insufficiency, etc.;