NRIPENDRA CHANDRA SAHA CHOUDHURY Vs. MDABBAS ALI

JUDGEMENT

(1.) These two appeals, the first by the mortgagees and the second by the mortgagors, arise in a suit to enforce a mortgage dated 3 March 1917. The suit was instituted on 23rd December 1929 for the sum of Rs. 11,197, which represented the principal, as stated in the mortgage bond, and interest calculated up to the date of the institution of the suit at the rate provided for in the mortgage bond. The preliminary decree was passed on 9 July 1930 and the final decree on 8 November 1930, for a sum of Rs. 12,818-4-0, which included Rs. 1124-6-0 awarded as costs. There were some infructuous applications for execution. The last application for execution in the course of which the questions involved in these appeals arose, was made on 27 January 1937. This application was stayed for a time by the Debt Settlement Board, but ultimately the stay lapsed, as the debtors application to the board made under Section 8, Bengal Agricultural Debtors Act was dismissed. This application for execution was pending when the Bengal Money-lenders Act, 10 of 1940, came into force. The mort- gagors thereafter applied for relief under Section 36 of the last mentioned Act, which will hereafter be referred to as the Act. The learned Subordinate Judge has allowed the application. He has re-opened the preliminary and the final decree passed on 9 July and 8th November 1930 respectively, and has passed a new preliminary decree for Rs. 6961, for the principal and interest calculated up to 22 February, 1941, the date of the new preliminary decree. He has awarded Rs. 698 odd as costs. The total amount, namely Rs. 7659-12-4 has been made payable in five equal yearly instalments, the first of such instalments being made payable in chaitra 1847 B.S. The decree has further provided that in default of payment of any instalment, the instalment unpaid will be recoverable in terms of Section.34, Sub-section (1), Clause(b) of the Act. In making the new decree the learned Subordinate Judge has taken Rs. 3781 to be the principal of the "original loan." He accordingly held that Rs. 3781 only was recoverable as interest and as Rs. 600 had been paid by the borrowers towards interest, the decree was made for Rs. 6961. Both parties have preferred appeals against his decree.

(2.) The material facts are as follows: Defendant 1, Abbas Ali and Dulal Bepary, the predecessor of the other defendants, had borrowed from time to time sums of money on simple bonds from the plaintiffs predecessors, Hriday Chandra Saha Chowdhury and Bepin Chandra Saha Chowdhury. For securing the monies due on account of the principal and arrears of interest due on those simple money bonds the mortgage in suit (Ex. l) was executed on 3 March 1917 by Abbas Ali and Dulal Bepary in favour of Hriday Chandra Saha Chowdhury and Bepin Chandra Saha Chowdhury. The mortgage bond recited that the mortgagors had in the past taken the following sums of money on executing simple money bonds:

(3.) The mortgage bond further recited that after crediting payments made towards principal and interest and after remissions the sum of Rs. 4484 was then due on the simple money bonds. A sum of Rs. 188 was advanced in cash at the date of the mortgage bond. The sum total of Rs. 4484 + Rs. 188, namely Rs. 4672 was agreed upon as the principal on which simple interest at the rate of 12 per cent, per annum was made payable. The mortgagees admitted before the learned Subordinate Judge that the borrowers were entitled to relief. The learned Subordinate Judge has also held that they are entitled to relief The principal controversy before him, and before us, is, what must be taken to be the "principal of the original loan" for the purpose of passing the new preliminary decree: whether (1) the sum of Rs. 4672 which was treated as principal in the mortgage bond or (2) Rs. 3593 + Rs. 188=Rs. 3781 or (3) a sum less than Rs. 3781. Before the learned Subordinate Judge the borrowers contended that Rs. 3593 had not been actually advanced by the lenders on the simple money bonds but a lesser sum, inasmuch as the simple money bond for Rs. 3000 item 1 recited in the mortgage instrument, was a renewed bond. They led evidence in support of their contention on the point. The mortgagees on the other hand said that as the mortgage transaction cannot be re-opened in view of proviso 1 to Section 36, Sub-section (1) of the Act, it being beyond twelve years "of the suit," the principal must be taken to be what has been agreed upon by the parties in the mortgage instrument, namely Rs. 4672. The learned Subordinate Judge has overruled both these contentions. He has taken, as I have already stated, the sum of Rs. 3781 to be the principal of the original loan. For overruling the contention of the borrowers, he held that as the adjustment recorded in mortgage instrument cannot be re-opened in the view of that proviso, the borrowers cannot say that Rs. 3000 was not the actual advance on the questioned simple money bond. He accordingly proceeded upon the recital of the mortgage instrument in fixing Rs. 3781 as the principal of the loan. In his judgment, however, he gave no reasons for repelling the contention of the mortgagees.