1959 Supreme(Cal) 212

HIGH COURT OF CALCUTTA
G. K. Mitter
JNAN CHAND CHUGH - Appellant
Versus
JUGAL KISHORE AGARWAL - Respondent
Suit 659  Of  1959
Decided On : SEPTEMBER 21, 1959

The intention of the person erecting the structure within which the machinery was housed, was to pull down the structure, it required, at a short notice and without a great deal of expense can it be said that his intention at the time of fastening, the machines to the earth or to the concrete bed was, to fasten the same for the permanent beneficial enjoyment of the land?

Headnote:

SUIT FOR DECLARATION - MORTGAGE - IMMOVABLE PROPERTY - JURISDICTION - RES JUDICATA - TRANSFER OF PROPERTY ACT - GENERAL CLAUSES ACT - LETTERS PATENT - CIVIL PROCEDURE CODE - ENGLISH LAW OF FIXTURES - MACHINERY ATTACHED TO EARTH - INTENTION OF BORROWER - ESTOPPEL BY RECORD.

Fact of the Case:

The plaintiff filed a suit for a declaration that the decrees passed by this Court on 20-1-1958 and 18-8-1958 in suit No. 1182 of 1957 are invalid and illegal and not binding on the plaintiff, for an injunction restraining the defendants from enforcing the said decrees or taking any steps thereunder and for other incidental reliefs. The facts of the case lie in a very short compass. The plaintiffs father Ratan Chand Chugh deceased entered into an agreement on 9-6-1953 with the defendants herein whereby the latter agreed to lend to the borrower from time to time as and when required a total sum of Rs. 1,00,000/ for the purpose of the borrower's business. There is a recital in this document that in order to secure the proposed loan the borrower had agreed to execute, whenever called upon, a formal legal charge over his entire machinery and fixtures as specified in the schedule to the document. In pursuance of the above agreement and in consideration of a sum of Rs. 1,00,000/- the plaintiffs father Ratan Chand Chugh executed a mortgage in favour of the defendants herein of properties set out in the schedule to the deed of 4-8-1953. The mortgage was registered in Book No. 1 of the Registrar of Assurances, Calcutta. Ratan Chand Chugh was the sole proprietor of the Arim Tin and Steel Works at 258/4 Upper Circular Road, Calcutta, which is beyond the local limits of the original jurisdiction of this Court. The deed was in the form of an English mortgage to secure a sum of Rs. 1,00,000. Ratan Chand was only a monthly tenant of the land on which the factories stood. The properties charged include hinges, pull drawers, door bolts and belt lacing and machinery, described more fully in the schedule to the deed.

Finding of the Court:

The Court held that the machinery in this case cannot be said to have been attached to the earth or permanently fastened to anything attached to the earth within the meaning of the expressions in the Transfer of Property Act and the General Clauses Act. It may be that the legs of one or two of the machines in this case look as Sf they have become imbedded in the earth as a result of the raising of the floor but there is no evidence before me that the idea or intention of the mortgagor in this case was to imbed them in the earth so that they could not be removed without breaking the concrete foundation. Except in the case of the furnace which appears to have been built in the soil itself all the other machinery appear to me to have been put on the floor of the factory on beds of concrete prepared for them and fastened down to the concrete bed by bolts and nuts, the bolts being firmly fixed in the concrete and passed through and projected beyond the holes in the machines. The object of the fastening was only to prevent the machines from vibrating inasmuch as they have to be worked by electric power conveyed to them from exterior sources. Nor, in my opinion, can it be said that the machines were attached to the concrete foundation laid in the earth for the permanent beneficial enjoyment either of the concrete foundation or of the soil in which the same was laid. The object of fastening the machinery to the land was not for the permanent beneficial enjoyment of the land but for the purpose of obtaining steadiness in the machinery while working for polishing and shaping things and earning profit thereby.

Issues: 1. Are the mortgaged properties immoveable properties as alleged in paragraph 1 of the plaint? 2. (a) Was suit No. 1182 of 1957 -- a suit for land? 2. (b) Did tin's Court have jurisdiction to try the said suit? 3. Is this suit barred by res judicata or principles analogous thereto? 4. To what relief, if any, is the plaintiff entitled?

Ratio Decidendi: The Court held that the machinery in this case cannot be said to have been attached to the earth or permanently fastened to anything attached to the earth within the meaning of the expressions in the Transfer of Property Act and the General Clauses Act. It may be that the legs of one or two of the machines in this case look as Sf they have become imbedded in the earth as a result of the raising of the floor but there is no evidence before me that the idea or intention of the mortgagor in this case was to imbed them in the earth so that they could not be removed without breaking the concrete foundation. Except in the case of the furnace which appears to have been built in the soil itself all the other machinery appear to me to have been put on the floor of the factory on beds of concrete prepared for them and fastened down to the concrete bed by bolts and nuts, the bolts being firmly fixed in the concrete and passed through and projected beyond the holes in the machines. The object of the fastening was only to prevent the machines from vibrating inasmuch as they have to be worked by electric power conveyed to them from exterior sources. Nor, in my opinion, can it be said that the machines were attached to the concrete foundation laid in the earth for the permanent beneficial enjoyment either of the concrete foundation or of the soil in which the same was laid. The object of fastening the machinery to the land was not for the permanent beneficial enjoyment of the land but for the purpose of obtaining steadiness in the machinery while working for polishing and shaping things and earning profit thereby.

Final Decision: The Court dismissed the suit with costs.