Appeal against dismissal of a Notice of Motion seeking injunction on a property mortgage. The High Court held that the Attorney had wide powers including mortgage, and the lower court correctly refused the injunction.
Appeal dismissed; notice of motion against injunction remains rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 4197 OF 2009
Bindu Nambiar .......Appellant
versus
M/s. Global Trade Finance Ltd. & ors.........Respondent.
Mr. D.D. Madon Sr. adv. With K.A. Shroff i/b Apex Consillis adv. for the Appellant.
Ms. Rajani Iyer Sr. adv. With Chirag Balsara, Munir Mody & Rajesh Talekar i/b. K. Ashar & Co. adv. for the Respondent.
CORAM: J.N. PATEL ACTING C.J. AND B. R. GAVAI, J. DATED : 8th January, 2010.
P.C.:
2
plaintiff's undivided share therein, is not validly mortgaged in favour of the defendant no.1 under the alleged Deed of Mortgage dated 22nd February 2008 and therefore the same is not binding on her. In the said suit a Notice of Motion praying for an order of injunction restraining the defendant no.1 from selling, encumbering, alienating, transferring, leasing etc. or creating any third party interest in respect of the suit property or in any event in respect of 50% undivided share was filed. In the said Notice of Motion, a prayer was also made for restraining defendant no.3 from acting in furtherance of or on the basis of the Power of Attorney dated 17th February 1998. The said Notice of Motion came to be rejected by the impugned order and aggrieved thereby the present appeal has been filed. 3. Heard Shri Madon the learned Sr. counsel appearing on behalf of the appellant and Ms Rajani Iyer the learned Sr. counsel appearing on behalf of respondent no.1. Though duly served, rest of the respondents have chosen not to appear. 4. Mr. Madon the learned counsel appearing on behalf of the appellant submits that the power of attorney which was executed by the appellant in favour of respondent no.3 gave a limited right to him to mortgage the property, if the said mortgage was for the benefit of the appellant. He submitted that since the mortgage in question was not for the purpose of loan advanced in
3
favour of the appellant, the respondent no.3 could not have executed the power of attorney in favour of the respondent no.1. He further submitted hat the mortgage in question was for the loan taken for respondent no.3 with which the appellant had no concern therefore the respondent no.3 could not have mortgaged the property in favour of respondent no.1. The learned counsel in support of this proposition relied on a judgment of the Apex Court in case of Timblo Irmaos Ltd Vs. Jorge Anibal Matos Sequeira and anr. reported in AIR 1977 S.C. 734, so also a judgment of learned Single Judge in case of The Prince Line Ltd. Vs. The Trustees of the Port of Bombay reported in AIR (37) 1950 Bombay 130. Mr. Madon further submitted that in any case the appellant had revoked the power of attorney vide communication of their counsel dated 1st August 2009 and as such the mortgage executed by respondent no.3 in favour of respondent no.1 would not bind on the appellant.
4
Attorney reveals that the appellant empowered the respondent no.3 to execute any document whenever required for the purposes of availing over draft facilities on her behalf in whichever capacity she is carrying on or may carry on business either as proprietor or partner or owner etc. 7. We have perused the judgment of the Apex Court in case of Timblo Irmaos Ltd. relied on by the learned counsel for the appellant. We may refer to the following observations of the Apex Court in the same judgment.
“18. We were then referred to C.A.P.R.M. A.R. Adaikappa Chettiar Vs. Thomas Cook & Son (Bankers) Ltd...AIR 1933 PC 78 where the well-known principles of ejusdem generis was applied to hold that general words following words conferring specifically enumerated powers “cannot be construed so as o enlarge the restricted powers there mentioned”. In this case, the purpose f the general power was subordinated to the specific powers given which determined the object of the power of attorney. There is no deviation in this case from the general rules of construction set out above by us. We have indicated above that implied powers cannot go beyond the scope of the general object of the power but must necessarily be subordinated to it. In fact, in a case like the one before us, where a general power of representation in various business transactions is
5
mentioned first and then specific instances of it are given, the converse rule, which is often specifically stated in statutory provisions (the rules of construction of statutes and documents being largely common) applies. That rule is that specific instances do not derogate from the width of the general power initially conferred. To such a case the ejusdem generis rule cannot be applied. The mode of construing a document and the rules to be applied to extract its meaning correctly depend upon not only upon the nature and object but also upon the frame.”
6
sanction of the alleged loan by the defendant no.1 to defendant no.2 the appellant held 2500 shares of defendant no.2. It is further noticed that on or about 10th December 2007 the said shares were transferred in favour of defendant no.6 who is husband of the appellant.
7
Notice of Motion. No case is made out for intervention and the appeal is dismissed.
(Acting C.J.)
(B.R. Gavai, J.)
2 issues framed by the court
Whether the appellant is entitled to injunction restraining the mortgage of her property executed by her attorney.
Whether the learned Single Judge erred in refusing the injunction prayer against the mortgage deed.
Colour shows how this judgement treated each authority
Timblo Irmaos Ltd Vs. Jorge Anibal Matos Sequeira and anr.Distinguished¶19
AIR 1977 SC 734 · Who else cites this
The Prince Line Ltd. Vs. The Trustees of the Port of BombayReferred¶19
AIR (37) 1950 Bombay 130 · Who else cites this
C.A.P.R.M. A.R. Adaikappa Chettiar Vs. Thomas Cook & Son (Bankers) Ltd.Applied¶20
C.A.P.R.M. A.R. Adaikappa Chettiar Vs. Thomas Cook & Son (Bankers) Ltd...AIR 1933 PC 78 · Who else cites this
Bindu Nambiar
M/s. Global Trade Finance Ltd.
J.N. Patel
B.R. Gavai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
