RATHINDRA NATH MITRA Vs. ANGURBALA MULLICK

JUDGEMENT

(1.) This is an application for a final decree in a mortgage suit. But it raises interesting questions. On the 7th March, 1975, a preliminary decree was passed in suit No. 280 of 1974 instituted by the petitioner Rathindra Nath Mitra in this Court. By the preliminary decree after recording the charge it was ordered and decreed, inter alia, as follows:-- "I. That the defendants do pay into Court to the credit of this suit the said sum of Rs. 51,687/- with interest at the rate of 6% on the said principal sum of Rs. 43,500/- within six months of the date hereof or any later date up to which time for payment may be extended by the Court such sum as may be found due and the taxed costs of the suit awarded to the plaintiff. II. That, on such payment and on payment thereafter before such date as may be fixed of such amount as may be adjudged due in respect of such costs of the suit, and such costs, charges and expanses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure 1908 the plaintiff shall bring into Court all documents in his possession or power relating to the said charged premises in the plaint mentioned, and all such documents shall be delivered over to the defendants or to such person as he appoints, and the plaintiff shall if so required, reconvey or re-transfer the said charged premises free from the mortgage and clear of and free from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required deliver up to the defendants quiet and peaceable possession of the said premises. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made and granted the said charged property or a sufficient part thereof shall be directed to be sold; and for the purpose of such sale the plaintiff shall produce before the Court on such Officer as it appoints, all documents in his possession or power relating to the said charged premises." As the time for payment of the decretal amount mentioned in the said preliminary decree expired without the defendants making payment of the decretal amount or any part thereof, the plaintiff petitioner made this application for a final decree. In the meantime it may be mentioned that an appeal has been preferred from the said preliminary decree and the same is pending. On behalf of the respondents this application is opposed on two grounds. It was contended that the preliminary decree passed by this Court was a nullity and as such a final decree upon that preliminary decree should not be passed. It was, secondly, urged that the decree had been drawn up in breach of the rules of this High Court and as such could not be enforced and the petitioner was not entitled to ask for a final decree on such irregular preliminary decree,

(2.) In support of the first contention raised in this application counsel for the respondents drew my attention to the judgment dated the 7th March, 1975, delivered by Salil K. Roy Chowdhury, J., in passing the preliminary decree. My attention was drawn to the findings of the learned Judge in respect of Issue No. 4. The said issue No. 4 as framed before the learned Judge was to the following effect:-- "Is the claim of the plaintiff governed by the Bengal Money Lenders Act ?" In answering the said issue No. 4 the learned Judge observed that the plaintiff was not a money lender and did not carry on the business of money lending and further the transaction which was the subject matter of the suit was not a loan covered by the Bengal Money Lenders Act, being a loan on the basis of a negotiable instrument under the Negotiable Instruments Act, 1881, other than a promissory note and as such excluded under Section 2 (12) (e) of the Bengal Money Lenders Act from the operation of the said Act. Counsel submitted that in view of the finding that the transaction was on the basis of a negotiable instrument under the Negotiable Instruments Act, 1881, other than a promissory note under the provisions of Section 80 of the Negotiable,. Instruments Act, 1881, the plaintiff was entitled to interest at the rate of 6% on the principal sum from the date on which the sum ought to have been paid until realisation. Section 80 of the said Act provides as follows:-- "80. Interest when no rate specified-When no rate of interest is specified in the instrument, interest on the amount due thereon shall, (notwithstanding any agreement relating to interest between any parties to the instrument), be calculated at the rate of six per centum per annum, from the date at which the same ought to have been paid by the party charged, until tender or realisation of the amount due thereon, or until such date after the institution of a suit to 'recover such amount as the Court directs. Explanation -- When the party charged is the indorser of an instrument dishonoured by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonour." Counsel for the respondents contended that the principal amount lent and advanced in this case as would be apparent from the judgment was Rs. 43,500/- calculating interest from the expiry of 240 days as per the stipulation in the instrument dated the 23rd September, 1963, which was the instrument in the instant case, i.e., from the 23rd May, 1964, being the date on which the principal sum ought to have been repaid until the institution of the suit, i.e., 30th June, 1974, as 6 per cent would have amounted to Rs. 25,665/- Adding the principal with the interest the total amount due to the petitioner on the date of the institution of the suit would have been Rs. 69,165/-. It has been found that the amount paid by the respondents to the petitioner on this account came to Rs. 26,970/-. That has also been found in the judgment by the learned trial Judge. Therefore, deducting the sum of Rs. 26,970/- from the aforesaid sum of Rs. 69,165/- the plaintiff being the petitioner herein would have been entitled to only Rs. 42,195/-and no more. Therefore, the court did not have the jurisdiction to try or entertain the suit. In the premises, it was submitted that the decree passed by this Court was a decree of incompetent jurisdiction and as such was a nullity.

(3.) Counsel drew my attention to the finding of the learned Judge on Issue No. 2 by which the learned Judge had found that the interest was payable at 8% per annum by agreement between the parties as appearing from the conduct of the parties and on pure mathematical calculation of the interest paid and on admission of the defendants by their Solicitor's letter dated 6th March, 1972. According to Counsel for the respondent this finding of the learned Judge was contrary to the mandatory provisions of Section 80 of the Negotiable Instruments Act 1881 and as such was void and without jurisdiction.