HRISHIKESH BANERJEE Vs. SUSHIL CHANDRA MOULIK

JUDGEMENT

(1.) On May 29, 1935, the defendant-respondent Sushil Chandra Moulik and his brother Suresh Chandra Moulik, since deceased, borrowed a sum of Rs. 7,000/- from the plaintiff appellants' father late Krishnadas Banerjee on a first mortgage of their premises No. 32, Mahesh Barik Lane, Baliaghata, 24-Parganas. The mortgage deed (Ex. 1 (a)) provided, inter alia, for payment of interest at the rate of 7 1/2 per cent, per annum compound with half-yearly rests and the stipulated date of re-payment was May 29, 1936.

(2.) On the back of the mortgage bond (Ex. 1 (a)) there were several endorsements of payment of interest totalling Rs. 2,229-8-0 and these were duly given credit in the plaint which laid the claim at Rs. 11,508/- on account of the outstanding principal and interest. The plaintiffs prayed for the usual mortgage decrees, preliminary, final and personal, and for costs.

(3.) The suit was contested by the defendant Sushil Chandra Moulik who claimed to be the 16 annas owner of the mortgaged property by virtue of a kobala or deed of sale, dated April 20, 1937, from his brother Suresh Chandra Moulik and his defence, inter alia, was (i) that the suit was barred by reason of certain proceedings and an award under the Bengal Agricultural Debtors Act and (ii) that further payments to the tune of Rs. 1,900/-made by him in respect of the above disputed mortgage had not been shown in the plaint and the defendant was entitled to credit for the same. Details of these defences will be given and discussed by us in the course of this judgment but we may at once indicate here that the main question which arises for our consideration in this appeal relates to the effect of the Bengal Agricultural Debtors Act proceedings, referred to in the written statement, on this mortgage Suit.