NIHALCHAND DALICHAND Vs. MUMTAZ SHAIKH

JUDGEMENT

(1.) THE plaintiffs have filed this suit for enforcement of a mortgage for Rs. 60,000 executed by the defendant in their favour on September 22, 1961. The Mortgage Deed has been tendered and marked exh. F in the proceedings before me. In para. 2 of the plaint it is stated that on the date of the said Mortgage Deed, the plaintiffs, at the request of the defendant, lent and advanced to the defendant a sum of Rs. 60,000 which was agreed to be repaid on March 31, 1962, and that as collateral security for the repayment of the said sum, the defendant mortgaged her immovable property at Lonavala in favour of the plaintiffs. In the course of the hearing before me, it was, however, admitted by the learned Counsel for the plaintiffs themselves that the consideration for the said mortgage mainly consisted of past debts under various promissory notes executed from time to time in favour of the plaintiffs. It was stated by Mr. Karanee, in opening the plaintiffs' case before me, that the first of those promissory notes was one dated August 29, 1959 for Rs. 6,000, and this was followed by six other promissory notes for various amounts on different dates. Those seven promissory notes have been tendered and collectively marked exh. A before me. The total of the amounts for which the said promissory notes were passed comes to Rs. 52,600. It is common ground that on February 2, 1961, a suit, being suit No. 519 of 1961, was filed by the plaintiffs against the defendant for recovery of the amount due only tinder the first promissory note for Rs. 6,000 dated August 29, 1959 and it is also common ground that on July 6, 1961, that suit was allowed to be dismissed for non -prosecution in consequence of a certain settlement arrived at out of Court between the parties. The terms of that settlement are to be found recorded in the defendant's attorneys' letter dated April 20, 1961, which is part of exh. C in this suit. It may be mentioned that the Court is not concerned in this suit with Clause 1 of the terms set out in the said letter, tinder Clause 2, the claim of the plaintiffs in respect of all the promissory notes executed by the defendant and/ or her daughter Suraiya, who, it may be mentioned, is a film actress, was settled for Its. 56,000 with interest at 9 per cent, per annum from April 1, 1961. By Clause 3 it was agreed that the defendant would execute a mortgage for Rs. 60,000 in respect of her Lonavala property as security for repayment of the said sum. Clause 4 of the terms of settlement set out in the said letter mentions1 that the suit filed by the plaintiffs against the defendant in the City Civil Court, being1 suit No. 519 of 1961, was to be withdrawn. It was pursuant to the said settlement that a pro -note for Rs. 56,000 (part of exh. D) was executed by the defendant on June 28, 1961, and the Mortgage Deed dated September 22, 1961, for the enforcement of which the present suit has been filed, was also executed by the defendant.

(2.) THE defence taken up by the defendant in the written statement is that there was no consideration for the said promissory note dated June 28, 1961, and that defence is to be found in para. 6 of the written statement. That defence, however, is clearly false in view of the fact that on the averments to be found elsewhere in the written statement, as well as on the admission of the learned Counsel for the defendant in the course of the hearing before me, some amounts at least, viz., Rs. 9,900 under the seven promissory notes (exh. A), and Rs, 1,500 paid at the time of the execution of the mortgage (exh. F), aggregating to Rs. 11,400, were due to the plaintiffs. The real defence of the defendant, therefore, is that the full consideration mentioned in the said several promissory notes and in the Indenture of Mortgage was not received by her from the plaintiffs, but a much lesser amount was received by her.

(3.) AS far as issues Nos. 1 and 2 are concerned, it is common ground that a licence under the Money -lenders Act has now been obtained by the plaintiffs and the said issues, therefore, no longer survive. As far as issue No. 3 is concerned, Mr. Karanee for the plaintiffs has conceded that the provisions of Sections 18 and 19 of the Bombay Money -lenders Act have not been complied with by the plaintiffs. Issue No. 4 relates to the legal consequences of non -compliance with those statutory provisions, but, I am afraid, in' view of the provisions of Section 21(6) of the Bombay Money -lenders Act, non -compliance with those provisions cannot entail the dismissal of a suit but can only affect the grant of interest and costs, and issue No. 4 must, therefore, be answered accordingly.