DARA RADHAKRISHNAYYA LINGAM Vs. TALLURI SATYANANDAM

JUDGEMENT

(1.) This appeal is filed by the first defendant under Clause 15 of the Letters Patent against the judgment or our learned brother, Manohar Pershad J. in A.S. No 120 of 1955.

(2.) The appellant executed a simple mortgage for a sum of Rs. 5,000.00 in favour of the father of the first plaintiff on 28-1-1938. It was recited in the document that the principal amount of Rs. 5,000.00 Should be paid in five equal instalments of Rs. 1,000.00 each together with interest at 8 5/8% per annum (simple). It was further stipulated "In case I fail to pay the principal and interest due in respect of an instalment by the respective due date according to the instalments mentioned above, it is settled that without reference to the future instalments the interest accrued up till then shall be added on to the principal and the said amount by principal and interest shall carry compound interest at the rate of Rs. 0-11-6 per cent per mensem with annual rests." It was settled that the mortgagee should recover the entire principal and interest so aggregating in lump sum from the first defendant personally and from the property under the mortgage and from his other movable property, me mortgagor did not pay any of the instalments as per the terms of the bond, in October 1949, he sold a part of the hypothecs for a sum of Rs. 6,000.00 to the second defendant and paid Rs. 3,444.00 towards the mortgage debt on 19-10-1949. On the same day, he created a second mortgage over the rest of the properties in favour of the second defendant for Rs. 10,000.00 under Ex. B-2. Out of this, he paid Rs. 1,500.00 towards interest and Rs. 500.00towards principal of the suit mortgage. As no part of the balance of the amount was paid thereafter, the first plaintiff brought the suit out of which this appeal has arisen for recovery of a sum of Rs. 11,140.00 being the principal and interest that accrued thereon.

(3.) Various defences were set up by the defendants but the two with which we are now concerned In this appeal are these namely, (1) the defendants being agriculturists, they are entitled to have the debt scaled down under Section 9 of the Madras Agriculturist? Relief Act, and (2) since the mortgage deed provided a double penalty, namely, making the whole amount due up to that date payable in the event of default to pay an instalment in time irrespective of future instalments and payment of interest at 8 5/8% compound interest with yearly rests, the mortgagor had to be relieved of the second penalty.