CHATRU ABAJI PATIL Vs. KONDAJI VITHAL PATIL

JUDGEMENT

(1.) We are of opinion that the mortgage bond is not an agreement to give time.

(2.) My second submission is that the mortgage-bond is not for a sum in excess of the decretal-debt. Both the lower Courts have found that the sum of Rs. 10-4-0, which is in excess of the decretal-debt, was paid in cash by the respondent- plaintiff to the appellant-defendant when the mortgage-bond was executed. The amount for which the mortgage-bond was executed is thus made up of the decretal debt of Rs. 889-12-0 plus the sum paid in cash. The mortgage-bond is consequently not for payment of a sum in excess of the decretal-debt.

(3.) Thirdly, I submit that the agreement to pay interest does not render the mortgage-bond void under class. (2) of Section 257A. In the mortgage-deed it is stated that interest is only to be paid if there is a failure in the payment of an instalment ; and even then interest is chargeable from the date of the default. The agreement to pay interest was therefore . conditional. It was a separate agreement. The true test whether the agreement to pay interest was separate or not is this: Suppose all the instalments were regularly paid, could the mortgagee have claimed interest? If there was no default in payment of any instalment, no interest could have been claimed. There are thus two distinct agreements in the mortgage-deed: first, to pay the principal amount which is found to be not in excess of the decretal-debt, and, secondly, to pay interest if there was a default in payment of an instalment. The primary agreement was to pay a sum of money which was not in excels of the decretal debt. The provision as to interest was not a part of this agreement. The invalidity of the second agreement does not render the mortgage-bond, so far as the payment of the principal amount is concerned, void. The agreement to pay interest, which is a conditional and separate agreement, does not affect the right to sue for the recovery of the mortgage-debt; Bhagchand v. Radhakisan (1903) I.L.R. 28 Bom. 62 : 5 Bom. L.R. 672. This case has been referred to with approval in Raichand v. Naran (1904) I.L.R. 28 Bom. 310 : 6 Bom. L.R. 62.