LADLI BEGUM Vs. SUNDER LAL

JUDGEMENT

(1.) This is a mortgagors' appeal in a suit for sale on foot of a mortgage deed executed by the mortgagors-defendants in favour of the plaintiffs-mortgagees on the 1st of October, 1928, for a sum of Rs. 15,000.

(2.) In their plaint the mortgagees have set out the particulars of the mortgage and have shown that amount of mortgage money was Rs. 15,000/-, It is alleged in the plaint that out of the mortgage consideration Rs. 11,500, were left for payment to Lala Ramchander, but out of that Rs. 11,500/-only a sum of Rs. 11,346/4/- was paid and Rs. 40/-was spent in the execution and completion of the acquittance. In this way Rs. 11,386/4/- were paid and the amount which was actually paid has been included in the account. The rest of the mortgage consideration, according to the mortgage deed, was made up in such a way that Rs. 1875/- were paid before the Sub-Registrar, Rs. 1200/- was in respect of other debts and Rs. 1500/-was taken for redeeming some ornaments which had been pledged.

(3.) Defence was entered and the plea was taken that undue advantage was taken of the straitened circumstances of the contesting defendants and they were therefore compelled to agree to usurious conditions. By paragraph 6 of the additional pleas it was pleaded that as the plaintiff had not upto the date of the plaint returned the pawned ornaments to the contesting defendants, Rs. 1500/- as well as the price of the ornaments should be set off as against the mortgage money. By paragraph 8 it was pleaded that it was agreed upon between the plaintiffs and the contesting defendants that the plaintiffs would give to the contesting defendants Rs. 1875/- at the time of the registration, but after the registration the contesting defendants would return this money to the plaintiffs as interest for 1 1/4 years and that if the contesting defendants paid the mortgage money this money would be allowed credit for and would be set off as against the interest for 1 1/4 years. It was pleaded that in this way the sum of Rs. 1875/-which had been returned to the plaintiffs should be set off as against the mortgage money. With regard to the amount which was to be paid to Lala Ramchander it was said that a sum of Rs. 153/12/- remained with the plaintiffs. It was stated that the contesting defendants had paid Rs. 1200/- more on the 15th of March 1935, towards interest to the plaintiffs, the receipt whereof has not been given by the plaintiffs and thus this has not been mentioned in the plaint and that the aforesaid amount should also be allowed credit for. By paragraph 11 it was pleaded that the plaintiffs creditors were carrying on money-lending business and were, neither prepared nor had sent annual accounts to the contesting defendants and were not entitled to get any interest and costs.