A.N.Ray, J. - (1.) This appeal is from the judgment of S.P. Mitra J. dated 17th August, 1966.
(2.) The plaintiff is the appellant. The plaintiff instituted this suit against the respondent company Raugaroon Tea Company Ltd. and Ranjit Bose. During the pendency of the suit Ranjit Bose died and his widow and minor sou were impleaded as parties to the suit.
(3.) The plaintiff's case in short is that on 30th August 1944 the plaintiff lent and advanced to Ranjit Bose a sum of Rs. 2,75,000 with interest thereon at the rate 6 per cent per annum which was subsequently increased to 6 per cent (sic) per annum with effect from 1947. To secure the repayment of the said loan the plaintiff alleged that the said Ranjit Bose deposited with the plaintiff the documents of title relating to the properties known as Rangaroon Tea Estate belonging to Ranjit Bose and situated in the district of Darjeeling. In paragraph 3 of the plaint it was alleged that on 30th August 1944 a registered memorandum of agreement was entered into between the plaintiff and Ranjit Bose at Calcutta evidencing the deposit of title deeds. As further security for the said advance Ranjit Bose charged and hypothecated by way of first charge in favour of the plaintiff the plants, machinery, furniture and other movable assets appertaining to the said Rangaroon Tea Estate. On 30th August 1944 Ranjit Bose it is alleged, executed in favour of the plaintiff a deed of hypothecation on tea crops of Rangaroon Tea Estate to secure a cash credit account not exceeding Rs. 20,000. In para. 6 of the plaint it is alleged that on 20th December 1944 by a deed of transfer executed by Ranjit Bose in favour of Rangaroon Tea Estate to which the plaintiff was a party Ranjit Bose relinquished all right, title and interest in Rangaroon Tea Estate in favour of Rangaroon Tea Company Ltd. and transferred and assigned the Rangaroon Tea Estate, the movable properties and tea crops to Rangaroon Tea Company Ltd. subject to the aforesaid mortgage by deposit of title deeds, hypothecation of movables and tea crops in favour of the plaintiff. The plaintiff alleged that a sum of Rs. 1,70,365/12/-was due up to 30th January 1950. The plaintiff claimed preliminary mortgage decree in form 5-A of appendix D of the Code of Civil Procedure and other relief's. In the schedule of the plaint the description of the property in respect of which the preliminary mortgage decree was asked for was set out.;