DURGA PROSAD CHARNARIA Vs. MARIO GALSTAUN

JUDGEMENT

(1.) This is an appeal against a decree passed by S.N. Banerjee J. declaring that the amount due to the plaintiff under the mortgage mentioned in the plaint in the suit for principal and interest is Rs. 5,000/- and a preliminary mortgage decree for sale and for costs, except costs of hearing after the amendment of the plaint. The plaintiff is the appellant before us and his contention in this appeal is that the learned Judge should have decreed the suit in full with all costs and not for a part only of the claim and costs. The respondents Nos. 1(a) and 1(b) are the heirs of John Carapiet Galstaun, since deceased who was the original defendant in the suit.

(2.) The case of the plaintiff as made in his original plaint as filed was as follows: The plain tiff is the mortgagee of properties belonging to the said John Carapiet Galstaun. The properties mortgaged were (a) premises No. 24 Amratolla Lane, Calcutta, (b) premises No. 96 Karaya Road, Calcutta, (c) premises No. 167/1 and 167/5 Dhurrumtolla Street (Chandni bazar) Calcutta. The mort gages were created by deposit of title deeds made in September 1926. It was agreed by and between the plaintiff and the said Mr. Galstaun that the deposit of title deeds in respect of all the said properties would cover advances already made and to be made thereafter by the plaintiff and interest due thereon. The monies lent and advanced and secured by the mortgages as aforesaid were as follows: <FRM>JUDGEMENT_194_AIR(CAL)_1955Html1.htm</FRM> The said John Carapiet Galstaun agreed to pay interest at 9 p. c. per annum on the amounts lent and advanced as aforesaid. Prom time to time the said Mr. Galstaun paid to the plaintiff towards the monies so lent and advanced and interest due thereon the total sum of Rs. 30,000/-. The total amount due to the plaintiff including interest at 8 p. c. per annum on the monies lent as aforesaid was Rs. 4,64,213-5-8 and the plaintiff claimed a decree for the said sum and a preliminary mortgage decree in accordance with Order 34, Rule 4 Civil P. C., and for other incidental reliefs.

(3.) The case made by the said John Carapiet Galstaun in his written statement filed in this suit was one of total denial. He inter alia denied delivery of documents of title or that the said properties were mortgaged or that there was any agreement that the said deposit would cover advances made or to be made. The said Mr. Galstaun in his written statement further stated that the premises No. 167/5 Dhurrumtolla Street was sold to Khan Bahadoor Shapoor Fredoom Mazda and the premises No. 24 Amratolla Lane was sold by him long ago.