BINAPANI ROJA Vs. RABINDRANATH SARKAR

JUDGEMENT

(1.) This is a suit to enforce a mortgage created by a deposit of title-deeds in March 1947. The suit was instituted by the original mortgagee in July 1950. Shortly after, in November 1950 the original mortgagee died and the suit is being continued by his widow the present plaintiff who has been substituted in the place and stead of the original plaintiff. The defenadnt No. 1 Rabindranath Sarkar is the mortgagor. The other defendants are mortgagees having an interest in the equity of redemption. It is alleged that the loan was made on the deposit of title-deeds of certain immovable properties situate at Calcutta in which the Mortgagor defendant had a half share. By way of additional security three several promissory notes in favour of the mortgagor defendant were deposited with the plaintiff. The promissory notes were not however endorsed in favour of the mortgagees. The said promissory notes are for Rs. 26,000/- , Rs. 17,000/- and Rs. 19,000/- respectively. It is alleged that the defendant No, 1 instituted a suit on the promissory note dated 2-4-1946 for Rs. 7,000/- and after recovering the said sum, Rs. 6,500/- has been paid by the mortgagor to the plaintiff. A second suit on the promissory note dated 16-4-1939 for Rs. 26,000/- is still pending. The third promissory note for Rs. 19,000/- is time barred. I am told, though it does not appear in evidence that on this promissory note of Rs. 19,000/- only Rs. 3,500/- was, due and payable. The amount due to the plaintiff as alleged in the plaint is Rs. 13,500/- on account of principal and Rs. 1434/- on account of interest calculated up to 30-6-1950. A decree in Form No. IX of Appendix D of the Code of Civil Procedure is claimed as also a declaration that the promissory note dated 16-4-1939 for Rs. 26,000/- is charged for the repayment of the loan. There is a further prayer for ad-judication of priorities of the various mortgagees.

(2.) There are all told five defendants in this action. Of those defendants, except the defendant No. 1, namely, the mortgagor, none have contested the suit before me. Of the remaining defendants the defendant Amarendranath Bose and the defendant Phanindra Lal Mukerji and Manindra Lal Mukerji have filed written statements. The only point that was made by Phanindra and Manindra is that even though their mortgage was subsequent to the mortgage in favour of the plaintiff they are entitled to priority. I am told now by Mr. Gouri Mitter, learned counsel appearing for the plaintiff, that all the mortgagees have been paid off. The contest, therefore, before me is a straight contest between the plaintiff on the one hand and the defendant No. 1 on the other. It is not necessary for me therefore to summarise or to state the defence of the defendants other than the defendant No. 1. No other defendant has appeared at the trial.

(3.) The defendant No. 1 has contested the suit and in his written statement has taken up a luimbef of defences. In the first place, the deiendant denied the equitable mortgage. He admitted however that to secure an advance of Rs. 20,000/- taken by the defendant from A.K. Ghose of Messrs. H.N. Datta and Co. he deposited three promissory notes referred to in the plaint . It is pleaded that it was agreed that Mr. Ghose would be entitled to realise the amounts covered by the said three promissory notes and appropriate the same in payment of the loan in the present suit. It is further pleaded that two suits on the basis of the two promissory notes for Rs. 26,000/- and Rs. 7,000/- respectively were instituted by Messrs. H.N. Datta and Co. and the amount due on the second promissory note for Rs. 7000/- had been realised, the other suit for Rs. 26,000/- is still pending. The execution of the documents referred to in the plaint is admitted but it is alleged that the execution was procured by the exercise of undue influence by A.K. Ghose, a member of the firm of H.N. Datta and Co. Two other defences have been taken under the Moneylenders Act, (i) the plaintiff is a moneylender but holds no licence under the Moneylenders Act, (ii) nor did the plaintiff send any statement of account as required by the Moneylenders Act, and it is contended that in consequence the plaintiff is not entitled to any interest or costs or decree. Lastly, instalment has been claimed under the Moneylenders Act.