RAGHUNATH SHIVAJI KULKARNI Vs. RAMCHANDRA NARAYAN JOSHI

JUDGEMENT

(1.) The plaintiffs filed this suit to recover on a mortgage bond Rs. 1,500 for principal and Rs. 1,500 for interest. The first and fourth defendants appeared, They admitted the mortgage bond but contended that the whole consideration was not received; that the first defendant was in difficulty and so he admitted the previous debt of Rs. 900; that instalments should be granted; that accounts should be taken; and that the defendants only received Ra. 600 as consideration. Accordingly the learned Subordinate Judge took accounts with the result that he found that. on the 28 January 1903, two days before the bond, the principal sum due to the plaintiffs was Rs. 3,185-13-0. Nothing was paid in cash on the day of the bond, so that taking the principal sum on the data of the bond to be Rs. 3,185-13-0, he considered that double that amount should be allowed. But as he had to take accounts up to the day of the suit, on the latter day the principal sum due was Rs. 3,338-2-0, and so he passed a decree for double that amount, viz. Rs. 6,676-4-0 and costs of the suit to be paid in yearly install-ments of Rs. 400 each.

(2.) In appeal this decree was varied by substituting in the decretal order the words "Rs. 1,500 for principal and Ra. 1,500 for interest up to the date of the suit, together with future .interest at six per cent, per annum on the principal amount or the unpaid portion of it, and proportionate costs, for the words "Rs. 6,676-4-0 and costs."

(3.) It seems to us that the learned Subordinate Judge took entirely a wrong view of the functions of the Court in taking an account under the Dekkhan Agriculturists Relief Act. The plaintiffs admittedly took a bond for Rs. 1,500, and, therefore, that was all the principal amount which could possibly be considered as secured on the property mortgaged. Even supposing the learned Judge was right in finding that at the date of the bond a greater sum than Rs. 1,500 was due to the plaintiffs, if they chose to take a bond for Rs. 1,500, they cannot be allowed to contend afterwards that the balance of the amount should also be considered as secured on the mortgaged property. As a rule the object of directing accounts to be taken under the Dekkhan Agriculturists Relief Act is to ascertain how much of the amount secured by the bond is principal and how much interest after going into the history of the transactions between the parties. But once the creditor has taken a bond, then in no possible case can he recover in a suit on the bond more than the principal amount with interest. We may refer to the case of Dadabhai V/s. Dadabhai (1908) I.L.R. 32 Bom. 516;10 Bom. L.R. 745. where the plaintiffs, who stated that they were agriculturists, sued to redeem and recover possession of the properties in suit, alleging that they were mortgaged by their fathers to the defendants for Rs, 2,449 on the 3 May 1898; that accounts should be taken; and that the amount, if any, found due to the defendants, should be made payable by instalments. The learned Judge found that the plaintiffs were agriculturists; that Rs. 2,314 was the consideration for the mortgage; that the mortgage was with possession; and that Rs. 2,449 were due to the defendants on the mortgage; and that the said amount should be paid by the plaintifis to the defendants by ten instalments. The learned Judge said: "A commission was issued...to make up these accounts, Their report is filed. I have not been scrupulously careful in examination of these calculations as more than Rs. 2,499 are to be found due under any version. I cannot allow more than Es, 2;499 to defendants as even in the case of non- agriculturists they could not have got more." In second appeal to the High Court it was held that the Subordinate Judge was in error in thinking that he could not award more than Rs. 2,499. Then the case was renmndad to take an account according to the provisions of Section 13 of the Dekkhan Agri- culturists1 Relief Act. But it must be noted in that case that it was alleged in the plaint that the mortgage amount was Rs. 2,499, and, therefore, all that the Court decided was that on the accounts being taken it was open to the Judge to award more than the principal amount alleged to be due on the mortgage by the plaintiff.