LILABEN RAMNIKLAL Vs. VITHALDAS TULSIDAS

JUDGEMENT

(1.) This is an appeal preferred by the original defendants of the Special Civil Suit No. 70 of 1974 decreed against them by the learned Civil Judge (S.D.) Rajkot who by his judgment and decree directed these appellants-defendants to deposit with the court on or before 30-6-75 Rs. 2 76 309.97 along with interest on this amount at the rate of 12 % per annum from the date of the suit till the date of the decree and interest at the rate of 6% per annum on the decretal amount from 31-12-1975 (the date of the judgment) till 31 or any prior date of the deposit if any. The learned Judge further ordered that if the defendants failed to deposit money as ordered the mortgaged property would be sold and the proceeds would be applied towards the payment of the debt as said above. The learned Judge also stated that the plaintiffs were entitled to interest at 6% per annum till the date of realisation of the money subsequent to the above dates. The defendants were also saddled with the costs of the suit of the plaintiff.

(2.) The plaintiffs had filed the afore-said suit to recover the aforesaid amount by the sale of the mortgaged property. The mortgage deed is to be found at Exhibit 24 and it is dated 17-6-1969 securing loan of Rs. 1 50 0 As per the terms of the agreement rent was to be paid at the rate of 12% per annum every three months because the mortgagors were entitled to receive rent from the tenants occupying various parcels of this mortgage property and therefore it was provided that if the defendants failed to make such payments of rent every three months the said rent due was liable to be added to the principal amount and interest at the rate of 12% per annum on that amount was to be calculated onwards. Thus on the date of the suit the total amount of Rs. 2 76 309.97 was claimed to be due along with the initial principal amount of Rs. 1 50 0 The mortgage was executed by deceased Ramniklal Sunderji who had died after that transaction and so the suit was filed against his heirs and legal representatives. Out of 12 defendants the defendants Nos. 9 10 11 and 12 were stated to be minors being aged 17 16 12 and 12 respectively. The summons for the minor defendants had come to be served on the natural guardian that is their mother the defendant No. 1. She had engaged a lawyer specifically and expressly for herself and the minors also and she had filed the written statement Exhibit 16 also for herself and on behalf of her children referred to above. The written statement Exhibit 16 is dated 21-7-75 whereas the suit had come to be filed on 1-8-74. Curiously enough there was no specific application for getting the mother appointed as the guardian; ad-litem for those minors. At least some of them i.e. the defendants Nos. 9 and 10 would have become major very shortly after the institution of the suit as they were aged 17 and 16 on the day the suit had come to be filed. The suit went on. In the written statement Exhibit 16 filed by all the defendants including the mother acting for and on behalf of the above-mentioned minor defendants the mortgage transaction was specifically admitted in paragraph 4 nor was it disputed that the plaintiffs were entitled to claim interest at the rate of 1% per month making the monthly liability by way of interest at Rs. 1 500 All that they contended was that their liability on the date of the suit could not exceed Rs. 2 38 500 after giving credit for payment of the first months interest after the execution of the mortgage deed. So the only question was the matter of calculation of interest and whether interest on the amount of interest due could be claimed or not.

(3.) The learned trial judge raised only two issues because of the abovesaid state of pleadings. The issues were-