RAM LAL SINGH Vs. HARIHAR PRASAD SAH

JUDGEMENT

(1.) This appeal is presented on behalf of the, defendants against the judgment and decree of the Subordinate judge of Chapra dated 25-3-1947.

(2.) On 13-12-1937 the plaintiff Fatah Bahadur Sah executed a registered deed of sale in favour of the defendants in respect of certain milkiat interest of Mouza Salempur, Dahiawan, Sandha and other villages for a consideration of Rs. 28,000. It was agreed between the parties that out of the amount of consideration a sum of Rs. 6000 should be paid to the mortgagees Babu Kailashpati Singh and Bindeshwari Prasad, benamidars of Bhagwat Prasad Singh. The two mortgage deeds in this case were dated 4-1-1928 and 5-10-1926. Item 2 was a sum of Rs. 7700 due to Awadh Prasad Sahu and Jagdish Prasad Sahu on the basis of a mortgage bond dated 6-6-1925. Item 3 was a sum of Rs. 4751 due on the basis of a mortgage bond dated 27-9-1934 and payable to Jagdawan Singh. Item 4 was a sum of Rs. 750 due on a handnote payable to Pandit Deonarain. Item No. 5 was a sum of Rs. 400 due to Sita Ram Sahu on the basis of a handnote and the sixth item was a sum of Rs. 150 due to Kuer Lal on the basis of a handnote. The total amount covered by these documents was therefore a sum of Rs. 19751. It is stated in the sale deed that a sum of Rs. 8249 was set off in favour of the vendee on account of the mortgage bond executed by the vendor on 27-9-1926. The Bihar Money Lenders Act was enacted by the State Legislature in the year 1938 and one of the provisions of this Act was that no creditor was allowed to realise interest in excess ofthe principal amount. After the passing of this Act the plaintiff served a notice upon the defendants asking them not to pay the creditors more than the double amount of the principal for the respective items. The notice is dated 3-2-1944.

(3.) On the basis of these facts the plaintiff brought the present suit for recovery of Rs. 7598 as principal and Rs. 2052 as interest from 4-12-1942 uptil 3-12-1945 at the rate of 9 per cent per annum. The case of the plaintiff is that this was the surplus amount out of the purchase money kept in the hands of the defendants who are liable to refund the same. According to the case of plaintiff the surplus amount of Rs. 7598 was made up as follows (1) Rs. 1600 as surplus amount of item No. 1, (2) Rs. 47 as surplus amount of item No. 2, (3) Rs. 615 as surplus amount of item No. 3, and (4) Rs. 683 out of the surplus amount kept as set off.