BEJOY RANJAN DAS Vs. AJIT KUMAR DUTTA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by Shri R. L. Mukherjee, Subordinate Judge, Third Court, Alipore, 24-Parganas in Title Suit No. 130 of 1968 allowing the claim of the plaintiff for enforcing a mortgage debt and for realising the money due thereunder.

(2.) The appeal arises out of the following facts.

(3.) The plaintiff alleged that the defendant borrowed from him a sum of Rupees 10,000/- on the 26th March, 1962 agreeing to pay interest thereof at the rate of Rs. 10/-per cent per annum on the basis of equitable mortgage in respect of the property mentioned in the schedule given in the plaint. It was further alleged that the defendant deposited with the plaintiff on the selfsame date at Bengal Restaurant at 10 Chowringhee Road in the town of Calcutta, title deeds of the defendant's premises No. 40, Kabir Road, Tollygunge within the district of 24-Parganas thereby agreeing to create an equitable mortgage of the said property for securing the aforesaid loan as evidenced by the pro-note dated the 26th March, 1962 executed by the defendant in favour of the plaintiff. Tn this connection the plaintiff also asserted that the defendant deposited the title deeds of the premises No. 40, Kabir Road and other documents relating thereto on the day when the loan was advanced. The defendant also handed over one memo Ext. 4 and another affidavit, Ext. 5 at 10, Chowringhee Road, in the city of Calcutta on the 28th March, 1962. On the above allegations the plaintiff brought the title suit claiming Rs. 16,000/- as his dues to be realised from the defendant and accordingly he made a prayer for preliminary decree against the defendant in terms of Order 34, Rule 4 of the Civil P. C. and for a final decree under Order 34, Rule 5 of the said Code. . Prayer for costs was also made.