JKISHENLAL PHOOLCHAND Vs. ARATHAN SINGH

JUDGEMENT

(1.) The appellant, who is the plaintiff in the Court below, has filed a suit to recover, Rs. 1,15,000/- principal plus Rs. 4,662-8-0 interest on the foot of a deed of simple mortgage admittedly executed by the defendant on 8-1-1951. It bears the endorsement of the Sub-Registrar that the amount was paid in his presence. The defendant has pleaded that he has not received full consideration for the document and has asked for a re-opening of some previous transactions between himself and others Which, according to him, have a bearing on the consideration for the suit document.

(2.) In March 1953 the plaintiff made an application for the appointment of a Receiver for managing and protecting the mortgaged properties and for the collection of rents and profits. In the affidavit annexed to the application, he represented that nearly Rs. 1,41,000/- were due to him by that date including costs, that though in the mortgaged deed the respondent had expressly covenanted with the plaintiff that the mortgaged properties were all free from encumbrances except those set out in it he had recently come to know that some of the items had been already mortgaged to one Ambaram Fakirbhai in July 1942, that the latter had filed two suits O.B. Nos. 56 and 57 of 51-52, obtained decrees for sale and had been executing the said decrees and that a sum of Rs. 22,000/- was stated to be due to him under those decrees and that though the respondent had agreed to pay interest at one per cent, per mensem regularly he had not paid any amount towards interest from the date of mortgage though he was realizing a sum of Rs. 920/for rent. . In the meantime the value of the mortgaged properties was falling and in the event of a decree there was no chance of his realizing the full amount due to himself as some of the plaint items were now to be subject to the prior encumbrance in favour of Ambararn Fakirbhai, He estimated the present value of the properties at Rs. 1,33,500/- after deducting the amount due under the previous mortgage in favour of Ambaram Fakirbhai.

(3.) In the counter affidavit the defendant pleaded that the plaintiff was aware about the encumbrances and that one Khanmull Ganeshmull who was acting for the plaintiff had applied or promised to apply for an encumbrance certificate and had collected the necessary charges from himself. The suit mortgage deed was got drawn up by Ganeshmull who for some reason did not incorporate therein the two mortgages in favour of Ambaram. The value of the properties mortgaged was according to him Rs. 4,11,000/- and they were fetching rent of Rs. 680 and not Rs. 920/- as alleged. He characterized the plaintiff's application as 'mala fide'.