JUDGMENT Cunliffe, J. - This is a curious and somewhat irritating case which has taken a considerable times to try having regard to the paucity of evidence placed before the Court. It is, in reality, an action based on a mortgage brought by a firm carrying on business under the name of Budhsing Balchand. The first Defendants to the action are another firm known as Arnhold & Co., Ltd., and the second Defendants are a firm in liquidation by the name of the Sirajgung Industrial Development Company, Limited. They were represented, in so far as a written statement was put on the file, by a Mr. George Reed, who is described as a Chartered Accountant of Avenue House, Chowringhee, Calcutta, and as the Official Liquidator of the Company. 2. The Official Liquidator has been before the Court during the hearing taking no part in the proceedings before me. He was brought in his personal capacity. I do not think that in the circumstances of the case, he has rendered any assistance nor was it necessary for him to do so. I shall dismiss him from the case with costs in his favour. 3. The situation between the Plaintiffs, Arnhold & Co. and the Sirajgung Industrial Development Co., Ltd., at the material time appears to have been this. The Sirajgung Co. was formed for a variety of purposes connected with trade but paramountly, I think, for the purpose of carrying on an electrical business. The Company and its directors do not seem to have been blessed with much cash, and in the month of June, 1929, they entered into a memorandum with Arnhold & Co., by which Arnhold & Co. supplied them with some expensive electrical machinery and plant at their premises, which were situated somewhere outside the radius of the metropolitan area of this city. The actual plant was delivered only on the signature of a very special document which is known in this case--I have heard of it in other cases--as a trust receipt. 4. supplied them with some expensive electrical machinery and plant at their premises, which were situated somewhere outside the radius of the metropolitan area of this city. The actual plant was delivered only on the signature of a very special document which is known in this case--I have heard of it in other cases--as a trust receipt. 4. I am by no means sure what exactly the force in law of a trust receipt is, but it is a document, to my mind, of great undesirability, because it is of a secret nature and it is the type of document which leaves the possession of the property which is concerned with the document in question in the hands of the vendor and not in the hands of whoever it is who has executed the trust receipt and has apparently got the goods in his possession. When I say "in the hands" I mean really in the legal possession. One of my learned brothers has held This seems to be a reference to In re Nripendra Kumer Base, I. L. R. 56 Cal. 1074. For other cases on trust receipt see In re Sumarmull Surana, 59 Cal. 818 and Chartered Bank v. Imperial Bank, 60 Cal. 262.--Reporter in terms, that this type of document is specially designed to defeat certain provisions of the insolvency law, and I should imagine in some cases he is perfectly right in the view he takes. But there is no doubt in my mind also that commercial men have invented the document primarily so that they may do business in bad times with some hope of not losing the whole of the valuable goods with which otherwise they might part and thereby cause themselves a great loss. It is, basically, a document for the protection of the vendor and was issued on the 22nd of June, 1929. 5. Now, the Company, not very long after this trust receipt had been signed, in fact in the same year in the month of September, raised some money On a mortgage and on a mortgage of this very plant and machinery that they had just bought from Arnhold & Co. The mortgagees were the present Plaintiffs, who, as far as I can make out from the evidence that was given to me, do not seem to be particularly carefully advised when they lent the money. The mortgagees were the present Plaintiffs, who, as far as I can make out from the evidence that was given to me, do not seem to be particularly carefully advised when they lent the money. The borrowers are shown to be particularly dishonest people, because in the body of the document they solemnly state :-- The said mortgaged properties have not been previously encumbered or alienated in any way in favour of any body. If such a thing cornea to light then we shall be bound to give compensation and be liable to punishment according to the civil and criminal laws. 6. That is in the body of the mortgage deed, and any one lending money on such a deed would never imagine that the security which was being hypothecated was already the subject of a charge based on a trust receipt and possibly not even in law the property of the mortgagor to encumber at all. 7. Subsequently, Arnhold & Co. did get to know of this mortgage on which the Plaintiffs had lent their money. The correspondence shows that. There are letters from them to the Directors of the Company urging the paying off of the mortgage, but no notice was taken of these suggestions. What did happen was that Messrs Arnhold & Co. proceeded to enforce their charge against the second Defendants, the Company now in liquidation, by an ex parte action. I am by no means sure whether the Company in liquidation were not assisting Messrs. Arnhold & Co. in this ; but there is no real proof of that. At any rate, they did not implead the mortgagees, the Plaintiffs here, and they obtained judgment in what I may suppose is the undefended short cause list in this Court in the form of a decree which was not based on a judgment delivered by the Court. In my opinion, that decree is valueless in law once it can be established that Arnhold & Co, knew all about the existence of this mortgage, and had taken no steps and no pains to join, as a necessary party to the case with which they were concerned, the mortgagees, who were mixed up with the same properties. 8. That is really the case of the Plaintiffs here at the present time. 8. That is really the case of the Plaintiffs here at the present time. I think it is a good case ; but they are met with three distinct points in opposition. Two of them do not impress me at all. 9. One is a contention taken in a somewhat half-hearted manner based on a provision of the Indian Electricity Act [I think it is sec. 9 of the statute, sub-sec. (2)] which forbids companies engaged in electric light undertakings from raising mortgages unless they have first obtained the necessary permission from the appropriate official of Government who is controlling the electric light undertakings in the province. 10. It was said in answer to that point, and I think quite rightly, that there never was any evidence here that the Company functioned as a Company making electric light and dealing in electric energy, and there never was any evidence that they ever held a license from Government. 11. It is quite obvious from the provisions of the Act and the way they are framed that such a veto upon a Company would only be exercised when that Company had submitted to the jurisdiction and control of Government by taking out a license with regard to electricity. The taking out of such a license seems to be in the nature of a statutory condition precedent for Government control. 12. The next point which was taken against the Plaintiffs by Arnhold & Co., who are the real competitors in this case, was that the actual amount of the mortgage was ultra vires of the borrowing powers of the Directors of the Company under the Articles of Association (which was limited under the Articles to Rs. 30,000). [His Lordship after a review of the circumstances and the evidence concluded.] 13. All I do know is that Arnhold & Co. have not proved to my satisfaction, and I do not believe they could prove to the satisfaction of any Court on the evidence they have produced, that the Directors had exceeded their borrowing powers of Rs. 30,000. * * * * * 14. All I do know is that Arnhold & Co. have not proved to my satisfaction, and I do not believe they could prove to the satisfaction of any Court on the evidence they have produced, that the Directors had exceeded their borrowing powers of Rs. 30,000. * * * * * 14. We now come to the last point with which I have to deal, which, in reality, was the first point on which argument was offered to the Court; and I may say at once that I think it is the most artificial point of the whole of the arguments which have been addressed against the Plaintiffs' claim. But, unfortunately, artificial and technical points have to be given effect to if they happen to coincide with the artificial and technical law of the country in which the law is being administered. The point which is taken against the Plaintiffs as a preliminary point here is a point of jurisdiction. It is said that this is a suit on a mortgage and it is a suit on a mortgage in relation to land which is situated outside the limits of the area controlled by this High Court as laid down in the appropriate clause of the Letters Patent under which the High Court was founded. A similar clause, of course, exists in the Letters Patent of almost every other chartered High Court in the whole of India, and, in fact, I shall not be going too far in saying that the Letters Patent of all the new High Courts are drafted upon the precedent of the form of the Letters Patent of the Court in which I am sitting now. 15. It is argued, because of this clause, that this action being a mortgage action cannot be considered by this High Court, because it has always been the view of the Judges sitting in Bengal that a mortgage action is an action for land. It is a view to which every respect ought to be given and it is a view by which, as I am now a member of this High Court, I am controlled. But it is a view which I have never agreed with and it is a view which I do not suppose I shall ever agree with. In my opinion a mortgage suit is not a suit for land prima, facie or substantially. But it is a view which I have never agreed with and it is a view which I do not suppose I shall ever agree with. In my opinion a mortgage suit is not a suit for land prima, facie or substantially. A mortgage suit is a suit for money. It is quite true that in all mortgage actions a relief of a collateral nature is inevitably claimed which asks for assistance of an ancillary nature, supposing the debt in its money form cannot be realised. We all know that, but Judges, as I have said, of this High Court have universally held, taking their analogy from interpretations of the Registration Act and also of certain sections of the Transfer of Property Act, that a mortgage suit must be and is a suit for land. Here I may say that I am convinced that there is a certain amount of doubt upon this point, leaving aside the views held by the Bombay High Court, the Rangoon High Court and certain other High Courts, because the very experienced advisors of the Plaintiffs would not have come into Court and asked immediately to amend unless they had been in some kind of doubt about this decision, which, I believe, has never been decided by a Full Bench. I may be wrong in that but I believe in this province it has never been decided by a Full Court. 16. What Mr. Page appearing for the Plaintiffs did do was this. Directly he appreciated that this point was being taken against him, he said "I am going to amend by cutting out of the prayer to my plaint every reference to land, and then I shall still have substantial security for my Rs. 30,000 plus its interest on this valuable plant and machinery." 17. I thought that was a reasonable amendment to make and I permitted it not without a certain amount of opposition from the other side. The consequence is that the plaint as it stands now reads something like this :-- The Plaintiffs pray-- (a) for a declaration that the Plaintiffs are the mortgagees of the engines, plants, machineries, etc., mentioned in para. 1 of the plaint. The consequence is that the plaint as it stands now reads something like this :-- The Plaintiffs pray-- (a) for a declaration that the Plaintiffs are the mortgagees of the engines, plants, machineries, etc., mentioned in para. 1 of the plaint. (b) for an injunction against the Defendants Arnhold & Co., Ltd., restraining them and their servants and agents from selling any of the machineries, plants, engines and properties of the Defendants Sirajgung Industrial Development Co, Ltd., which are mortgaged to the Plaintiffs. 18. Then there are other reliefs with regard to a receiver and so on. 19. Now, in the schedule to the mortgage there is set out the property which is the subject of the mortgage. There are two sets of 80 h. p. Deisel Oil Engines. The type of these engines is described and their numbers are given. They can quite easily be identified, and they have naturally, as is referred to, adjuncts, appurtenances and accessories and so on. Then there are two electric generators with switch boards. Then there are a number of poles with which we are not immediately concerned. There is a power house which is described as being 42' X 25' in size with its equipments, and there are two other smaller buildings and various, what I should imagine should be accurately called, sheds. Then there are in addition to that fittings, electrical apparatus and fixures of the Company, utensils and furniture and other movable property which are lying in the office room and the workshop and so on. 20. The further argument developed by the first Defendants Arnhold & Co. to meet the Plaintiffs' amendment amounts to this. They say when you have a mortgage of land with plant and machinery, if the plant and machinery is of such a character that it amounts or even approximates to what we know as fixtures in an ordinary dwelling house, you must look on that plant and machinery as being in fact and in law land, and you cannot separate them from the actual land itself. 21. That, of course, is exactly what the Plaintiffs have tried to do here. The evidence shows, however, that this heavy engine machinery and so on was very carefully and very permanently installed and established on the Plaintiffs' land, round and above which no doubt the power house had been built. 21. That, of course, is exactly what the Plaintiffs have tried to do here. The evidence shows, however, that this heavy engine machinery and so on was very carefully and very permanently installed and established on the Plaintiffs' land, round and above which no doubt the power house had been built. The machinery and plant was said to have been erected and embedded in beds of concrete, which we all know is the modern form of installation of machinery which is used to counter heavy vibration. It is the most permanent and the most lasting form of foundation that there is. It is well-known to everybody that concrete buildings resist tremors and vibrations much better than anything else. That is the evidence with regard to this machinery. It was embedded in slabs of concrete. 22. What is the modern position of the law with regard to such machinery? I have been referred to cases which I consider are almost directly in point. There is the case, for example, decided in the House of Lords in England and reported in Reynolds v. Ashby and Sons [1904] A. C. 466. There it is held that machines supplied by the owner to the lessee of a factory upon the hire-purchase system, the machines to remain the property of the owner till they had been wholly paid for, and which were fixed, as the owner knew, to concrete beds in the floor of the factory by bolts and nuts, and could have been removed without injury to the building or the beds, that when the lessee made default in payment, and the owner brought an action to recover the machines or their value from a mortgagee of the premises, the machines which had been so set up passed under the mortgage to the mortgagee. No doubt, a certain amount turned there upon the actual wording of the mortgage deed, but the judgments of the Law Lords, although they are very short, do seem to show that they had come to the conclusion that machinery of the very type with which we are dealing here, in the circumstances which we have to consider, must be held to approximate to land in law and they are no longer chattels. Lord Macnaughten in his judgment said :-- I agree with the conclusion at which the Lord Chancellor has arrived. Lord Macnaughten in his judgment said :-- I agree with the conclusion at which the Lord Chancellor has arrived. The law with regard to fixtures as between mortgagor and mortgagee is not perfectly satisfactory, but I am sure much mischief would be created if there were a departure at this stage from the law which has been looked upon as governing such transactions as this ever since the case of Mather v. Eraser [1866] 2 K. & J. 536 : 26 L. J. Ch. 361. 23. And Mather y. Fraser [1866] 2 K. & J. 536 : 26 L. J. Ch. 361 was the case greatly relied on in argument no doubt before the House of Lords and before the Court of Appeal from which the appeal to the House of Lords was preferred. Then Lord Lindley in his judgment said this, inter alia :-- The purpose for which the machines were obtained and fixed seems to me unmistakable ; it was to complete and use the building as a factory. 24. If I may interpose my own words, that is exactly what these machines and plant were there for ; in this case it was for the purpose of starting the Company's factory. Lord Lindley went on to say :-- "It is true that the machines could be removed if necessary, but the concrete beds and bolts prepared for them negative any idea of treating the machines when fixed as movable chattels. The question is whether they passed by the mortgage. But for the fact that Holdway had not paid for them the question would not in my opinion be open to the slightest doubt." (Holdway was I think the mortgagor). "There is a long series of decisions", said the learned Law Lord "of the highest authority shewing conclusively that as between a mortgagor and a mortgagee machines, fixed as these were to land mortgaged, pass to the mortgagee as part of the land." Lord Lindley added :-- My Lords, it is quite impossible to overrule these decisions. 25. Then he went on to deal with certain other cases all of which seem to have been decided on the same principle and which had really very little difference except in immaterial particulars. 26. 25. Then he went on to deal with certain other cases all of which seem to have been decided on the same principle and which had really very little difference except in immaterial particulars. 26. It seems to me that what we have to look at here when we are dealing with this question of whether machinery and plant ought to be looked upon as land is the intention between the mortgagor and the mortgagee when they entered into the covenant of mortgage. No mortgagee would be such a fool as to lend money on a small piece of perhaps inexpensive land unless, in the particular circumstances of this case, it was backed up by this valuable machinery as a going concern. No doubt that was in the minds of the mortgagee as being one of the main lines of his security ; on the other hand, the mortgagor impliedly or tacitly, I imagine, conveyed to the mortgagee that this plant and machinery was not there for the moment, it was going to be there for a substantial time whilst the Company was prosecuting their business, establishing it and putting it on a profitable basis. It was by the maintenance of the machinery and the plant, no doubt, that the mortgagor hoped to pay the interest on the mortgage. I very much question whether the Plaintiffs would ever have lent the money if they had not imagined that the machinery and plant with which we have been dealing was on this land in this power house as more or less permanent fixtures. 27. In these circumstances I must hold that the Plaintiffs' prayer fails as far as the engines, plants and the machinery are concerned. I do not think that I can say that it is really affected as to certain other minor properties which are in my view chattels, to be found on the mortgaged premises, but certainly the items such as the two Deisel oil engines, the generators and the power house cannot be included in the Plaintiffs' prayer any longer, because, as I say, they are artificially to be looked upon as part of the land, under the series of decisions, of the Calcutta High Court under cl. 12 of the Letters Patent in conjunction with the English decisions that I have already mentioned. 28. 12 of the Letters Patent in conjunction with the English decisions that I have already mentioned. 28. It is rather difficult for me to give the Plaintiffs any exact judgment. I think their security has disappeared almost to a vanishing point, if my view of the case is correct. But I should be glad if some agreement can be come to between Arnhold & Co. and the Plaintiffs as to what actually are the chattels and what are the plant and machinery which approximate to the land. To make quite clear the view I take, I think I may say this that if I were sitting in the right District Court and I was asked by the Plaintiffs to give effect to their mortgage I should do so in toto. It is only the successful plea to the jurisdiction which defeats them in this Court. I may repeat again that I think Arnhold & Co.'s decree with their knowledge of the Plaintiffs' mortgage was valueless against the Plaintiffs' rights under the mortgage and I must leave it at that.