MAHENDRA Vs. MEHTA MOHANLAL MATHURDAS

JUDGEMENT

(1.) JUDGEMENT :- The Appellant, Mahendra Mohanlal Mistry, inhabitant of Godhra (District Panchmahals) was the defendant in a suit, bearing Special Civil Suit No. 45 of 1977, filed in the Court of the learned 2nd Joint Civil Judge (Senior Division), Godhra by the respondent, M/s.Mehta Mohanlal Mathurdas, a Partnership firm through its Partners, (1) Ramanlal Mohanlal Mehta, and (2) Sankalchand Mohanlal Mehta, having died through Rameshchandra Sankalchand Mehta, both of Godhra (District Panchamahals), for the purposes of getting possession of the suit property, bearing City Survey No. 437, situate in the City of Godhra, and for recovering a sum of Rs. 6750/-, being the arrears of rent for a period of three years prior to the date of the suit. The learned trial Judge. by his judgement and order dated 31st December, 1981 declared that the respondents were entitled to recover a sum of Rs. 10,000/- on the mortgage amount, as the principal amount, and Rs. 1,800/- for interest on the said amount and further passed a decree that on the payment of the aforesaid amount of Rs. 11,800/- (inclusive of interest), the respondents shall bring into the Court all the documents in his possession or power relating to the mortgaged property and all such documents shall be delivered over to the appellant or to such person as he appoints, and the respondents shall, if so required, reconvey or retransfer the said property free from the said mortgage, and clear of and from all encumbrances created by the respondents or any person claiming under them or any person under whom they claim and free from all liabilities whatsoever arising from the mortgage or the suit. The trial Judge further ordered and decreed that in default of payment as aforesaid, the respondents may pray for a final decree that the appellant shall thereafter stand absolutely debarred and foreclosed of and from all rights to redeem the mortgaged property, described in the Schedule annexed thereto and shall, if so required, deliver up to the respondents quiet and peaceable possession of the said property, and that the parties shall be at liberty to move the Court from time to time as they may have occasion, for appropriate directions. He further directed the appellant to pay the costs of the suit to the respondents and directed that a preliminary decree be drawn accordingly.

(2.) The appellant, having been dissatisfied and aggrieved by the aforesaid judgement and order, has filed the present appeal.

(3.) The facts leading to the present appeal may shortly be stated as under : The respondent No. 1 is a partnership firm registered under the Indian Partnership Act and deals in Shroff business, i.e. to say, it deals in money lending transactions. The appellant had entered into an agreement of mortgage of an immoveable property, admeasuring 74.06 sq. yards out of a private plot bearing plot No. 26, along with a superstructure built upon the said land. The mortgage is stated to be a mortgage with conditional sale in favour of the respondent firm for a sum of Rs. 15,000/-. The agreement of mortgage was entered into on 20-3-1969 and it was a registered document. It is to be found at Exh. 76. Despite an averment to the contrary in the mortgage deed, possession of the suit property remained with the appellant. It was provided in the mortgage deed specifically that the mortgage was in the nature of a mortgage by conditional sale and that if the mortgage debt was discharged within one year of the mortgage-deed, the property would stand redeemed from the mortgage and that if within the same period of one year from the mortgage deed, the mortgage-debt was not discharged, the appellant would not have a right to redeem the property and that the property would stand automatically sold to the respondents. The respondents averred in the plaint that subsequent to the entering into the transaction of mortgage, the appellant had agreed to pay Rs. 187-50 ps. per month by way of rent of the suit property. They further averred that the appellant had paid a cheque of Rs. 15,000 dated 1-8-1973 towards the rent and after giving a credit of the same, the respondents were entitled to recover a sum of Rs. 7187-50 ps., but they were not claiming the same amount as the same had become barred by limitations. In other words the respondents. claim that on account of an agreement subsequent to the mortgage-deed entered into by and between the parties, they were entitled to recover rent alias mesne profits from 20-3-1969 to 19-8-1974, which came to Rs. 12,187-50 ps. towards which amount the appellant had paid Rs. 5,000/- by a cheque dated 1-8-1973, and giving a credit of that amount, the respondents were still entitled to recover the balance amount of Rs. 787-50 ps., but they did not press the amount in the suit, since it had become barred by limitations. Consequently, they have claimed a sum of Rs. 6750/- being the arrears of rent alias mesne profits for a period of three years prior to the filing of the suit.