MANOJ KUMAR SAHA Vs. NABADWIP CHANDRA PODDAR

JUDGEMENT

(1.) This appeal is at the instance of the plaintiffs and it arises out of a suit for enforcement of a mortgage.

(2.) The plaintiffs Nos. 1 and 2 are respectively the son and widow of late Akshoy Kumar Saha, who was the sole owner of the premises No. 3, Baisnab Sett Street, Calcutta. The defendants Nos. 1 and 2 were monthly tenants in respect of two rooms of the said premises and carried on their business under the name and style of "Sachuni Ram Kanto Poddar" which was one of the big wholesale firms and had its principal place of business at Bhairab Bazar, now in Bangla Desh. The case of the plaintiffs was that on account of mutual confidence Akshoy Kumar Saha advanced a loan of Rs. 20,000/- to the defendants in the name of their said firm for the purpose of their business on April 15, 1949 corresponding to Baisakh 2, 1356 B. S. Out of the said loan the defendants paid a sum of Rs. 1,000/- on December 13, 1950 corresponding to Agrahayan 27, 1357 B. S. The said loan transaction was duly entered in the books of account of Akshoy Kumar Saha and after his death in the account books of the plaintiffs. The loan was to carry an interest at the rate of 8% per annum. It was alleged by the plaintiffs that the defendants having failed to pay the balance amount of the ' loan with interest thereon in spite of repeated demands by the said Akshoy Kumar Saha, they deposited with the said Akshoy Kumar Saha the title deeds of their Nabadwip property on December 1, 1952 at the said premises No. 3, Baisnab Sett Street, situate within the town of Calcutta, as security for re-payment of the outstanding loan together with the interest due thereon. The documents that were deposited were the original Bengali deed of sale between Harimati Debi and others as vendors and the defendants as purchasers and two tax receipts of Nabadwip Municipality. On December 6, 1952 the said Akshoy Kumar Saha died leaving him surviving the two plaintiffs as his only heir and heiress. The defendants failed and neglected to repay the mortgage-debt or any part thereof which, with interest, amounted to Rupees 35,000/-. The plaintiffs served a notice on the defendants on November 20, 1964 through their Attorney Radhashyam Saha by registered post with acknowledgment due calling upon the defendants to pay the mortgage dues, but the defendants not having paid the same, the suit was instituted. The plaintiffs inter alia prayed for a decree for a sum of Rupees 35,000/- with interest from the date of suit to the date of realisation, in default, for the sale of the mortgage property.

(3.) The defendants contested the suit by filing a written statement. It was contended by them that the suit was barred by limitation as the same was not filed within 12 years of the date of the alleged loan. They denied that they had taken a loan of Rs. 20,000/- from the said Akshoy Kumar Saha or that they had deposited the title deeds with him by way of equitable mortgage for the purpose of securing repayment of the said alleged loan. It was alleged by them that after their purchase of the Nabadwip property in 1945, they asked one Haricharan Saha, an employee of the said Akshoy Kumar Saha to procure the sale deed of the said property from the Registration Office. They did not ask the said Harichatan to return the said document to the defendants. Taking advantage of the laches and negligence of the defendants, the said Haricharan fraudulently and in collusion and conspiracy with the said Akshoy Kumar Saha attempted to convert the sale deed into a mortgage by deposit of title deeds.