SANWARMAL AGARWALLA Vs. BENOY KRISHNA MUKHERJEE

JUDGEMENT

(1.) This appeal has been directed against the preliminary decree passed by the Second Subordinate Judge. Dhanbad, in Title (Mortgage) Suit No. 16 of 1962 decreeing the plaintiffs suit with costs on contest against defendant No. 2 and ex parte against defendant No. 1. He directed the defendants to pay a sum of Rs. 33,882.88 paise to the plaintiff on or before the 22nd August, 1963, failing which the mortgaged property, or a sufficient portion thereof, was to be sold to satisfy the decree.

(2.) The case of the plaintiff, shortly stated, was that coal lands measuring 50 bighas lying in village Baromesia, P. S. Baghmara, in the district of Dhanbad, as described in Schedule "A" of the plaint, belonged to the plaintiffs. On the 31st December, 1949, both the defendants took settlement of those coal bearing lands from the plaintiff under a registered Indenture of Mining Lease, together with all inclines, quarries, houses, tools, machineries etc. This colliery was then known as "Central Sindhi Colliery", which name was subsequently changed into "South Muraidih Colliery. The defendants agreed to pay a salami of Rs. 18,000/-; but they were not in a position to pay so much in cash and so they executed a registered mortgage bond on the same date in favour of the plaintiff in consideration of the said amount of Rs. 18,000/-. Under this mortgage bond, the defendants hypothecated, by simple mortgage, the very same 50 bighas of coal lands as described in Schedule "A" of the plaint. They further agreed to pay the mortgage money to the plaintiff on or before the 30th June, 1950; and, in default thereof, the defendants made themselves liable to pay interest on the same amount at 6 p. c. p. a. from the 1st July. 1950 till realisation. In spite of repeated demands and notice, the defendants mortgagors did not pay any amount to the plaintiff, and so the plaintiff had to bring the suit for recovery of the principal amount of Rs. 18,000/-, together with interest at 6 p. c. p. a. from the 1st July to June 1962, amounting to Rs. 12.960.00. The plaintiff prayed that a mortgage decree for the above mentioned sum, together with costs and interest, pendente lite and further, be granted in his favour, and the said decretal amount be declared a charge on the leasehold coal lands. The plaintiff further prayed that, if the defendants fail to pay the decretal dues within the time fixed by the Court, the mortgaged property be put to sale and. should the sale proceeds be insufficient to satisfy the decretal dues, a personal decree be passed against the defendants.

(3.) Both the defendants filed separate written statements. But at the time of hearing only defendant No. 2 contested the suit, and the lawyer for the defendant No. 1 endorsed "no instruction". In the written statement filed on behalf of defendant No. 1, it was contended that defendant No. 2 was never his adopted son; rather he was the karta of his joint family. He, along with defendant No. 2, purchased the lands in suit from one Satyaprasad Chatterjee under a registered deed of sale dated the 15th December, 1949; but when the defendants, along with other members of their families, entered into possession of the property in Suit, the plaintiff represented that he had interest in the property, and advanced a claim in respect of the said property. So, in order to buy peace and under the coercion of the plaintiff, the defendants were forced to execute the mining lease in question. The mortgage in question is without consideration, inasmuch as the very same property was also charged under the mining lease in question. According to defendant No. 1, defendant No. 2 had deceived him because he stopped sending return about the income etc., In respect of the colliery in question since after May, 1949, and for this he (defendant No. 1) had brought Title Suit No. 29 of 1960 against defendant No. 2. Another plea taken was that the plaintiff was not a registered money-lender, and so the suit was not maintainable.