The main legal point established in the judgment is that the leave and license agreement entitled Respondent No. 2 to continue to use and occupy the premises until the security deposit and interest thereon were refunded by Respondent No. 1. The Court also found that the agreement constituted an anomalous mortgage under Section 58(g) of the Transfer of Property Act, 1882, and that Respondent No. 2 had a right to bring the property to sale and have the debt satisfied from the sale proceeds.

S. J. VAZIFDAR, J.

( 1 ) THIS is an Appeal against the order of the learned Single Judge allowing the Chamber Summons taken out by Respondent No. 2 by directing the amendment of the terms and conditions of sale of a flat, in execution, recognising the right of respondent No. 2 therein under a leave and license agreement dated 8. 10. 2001. PRELIMINARY FACTS :

( 2 ) THE Appellant is a judgment creditor having obtained a decree dated 31. 5. 2002 against Respondent no. 1 passed by the High Court of the Hong Kong special Administrative Region, Court of First instance, in Action No. 4761 of 2 in the sum of US $616 with interest. Respondent No. 1 is the judgment debtor. On 26. 3. 2003 the above Execution application was taken out by the Appellant for execution of the decree of a sum of Rs. 3,48,98,644. 84 inter-alia against a flat owned, according to the appellant, by Respondent No. 1. According to respondent No. 1, he is the co-owner of Flat No. 201, silver Arch, Nepan Sea Road, Mumbai alongwith his wife. This is a dispute with which we are not concerned in this Appeal. A warrant of sale of the said flat was issued on 21. 5. 2004 and a proclamation of a sale thereof has also been issued. On 25. 5. 2005 the particulars and conditions of sale were finalised by the Sheriff of Mumbai.

( 3 ) RESPONDENT No. 2, the Applicant to the above chamber Summons, is the ING BANK, N. V. , a banking company, incorporated under the Laws of Netherlands. Aggrieved by the fact that the particulars and conditions of sale finalised by the Sheriff of Mumbai do not mention their rights in respect of the said flat arising from the leave and license agreement respondent No. 2 filed the above Chamber Summons seeking to set aside the sale on the said terms and conditions. In the alternative Respondent No. 2 sought an order amending the terms and conditions of sale to recognise their right to be in possession of the flat till the amount of the security deposit of rs. 3,25,00,000/- alongwith the contractual interest thereon is refunded to them as per the terms and conditions of the leave and license agreement. Respondent No. 2 has also sought a declaration that they have a lien and charge over the flat and that they have a lien on possession, equivalent to a charge under the said agreement and for a right to possess, occupy and enjoy the same.

( 4 ) RESPONDENT No. 2 has based its claim upon the leave and license agreement dated 8. 10. 2001 entered into between Respondent No. 1 and his wife on the one hand (therein referred to as the licensors) and itself (therein referred to as the licensee) on the other. For convenience the reference to Respondent no. 1 in this judgement will include a reference to his wife. Respondent No. 1 granted to Respondent No. 2 leave and license of the said flat and car parking spaces (therein referred to as the licensed premises) on the terms and conditions mentioned therein. As recorded in clause 25, Respondent No. 2 deposited a sum of Rs. 3,25,00,000/- (referred to therein and hereafter by us as the security deposit) with respondent No. 1 for due observance by Respondent No. 2 of the terms of the agreement. Under clause 26 upon expiry or sooner determination of the agreement the security deposit is to be refunded without interest against Respondent No. 2 handing over possession of the said flat.

( 5 ) WE will refer to the relevant clauses of the agreement while dealing with the various submissions. At this stage it is necessary only to set out clauses 19 and 28 which form the fundamental basis of the second Respondents case. Clauses 19 and 28 read as under :"19. In the event of the Licensors desiring to sell or dispose of the licensed Premises during the period of the licence, the Licensors shall be entitled to do so without affecting the rights of the Licensee hereunder and such sale or disposal shall be subject to the rights of the Licensee under this Agreement. "28. In the event of failure on the part of the Licensors to ref