BROJENDRA KUMAR DUTTA ROY Vs. SUSHIL CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) This is an appeal by one of the defendants from a decree for sale which the plaintiff has obtained on a mortgage bond. The plaintiff's case was that the defendant and his three brothers and also their mother executed the bond on 7 Pous 1323 (22 December, 1916) and borrowed Rs. 5,500 at an interest of 14 as per cent per month compound with six monthly rests in order to pay off two earlier mortgages on some of the properties covered by this bond; that these two mortgages were one dated 17 Magh 1323 (31 January 1916) for Rs. 2,000 in favour of one Tara Nath Mitra bearing interest at 12 as per cent per month and another dated 12 Falgoon (24 February 1916) for Rs 1,800 from one Kunja Chakravarty bearing interest at 10 annas per cent per month and also that he had received two sums, namely Rs 613-2-0 and Rs. 1,365/-, on account of interest due, the former through one Jogendra Chakravarty, brother of Kunja Chakravarty, and the latter through one Mon Mohan Moulik, Mukhtear of the Bhowal Estate. The Bhowal Estate were the purchasers of one of the mortgaged properties which was sold to them by the mortgagors with the consent of the plaintiff. The claim was laid at the balance due at the date of the suit, namely Rs. 15,932-9- 10.

(2.) The principal defendants in the suits, of whom the appellant is one, were the mortgagors or their heirs, and the others were subsequent transferees of portions of the mortgaged properties. The defence of the appellant and of the other contesting defendants introduced along and complicated story. Shortly put, the story was as follows: The plaintiff at the time of the mortgage paid only Rs. 1,433 in cash out of the amount of consideration which was stated in the bonds: viz. Rs 5,500 and retained the balance Rs. 4,067/- to pay off the two earlier mortgages. In 1324 B.S. the appellant was given an appointment by the plaintiff's father as an officer in his employ. In November 1917 the mortgagors sold away their moveables, including furniture, ornaments, cattle, etc., and out of the sale proceeds paid off Tara Nath's mortgage and, on 22 December, 1922 deposited in Court for paying off Kunja Chakravarty's mortgage a sum of It Section 1923-12-0. Kunja Chakravarty did not accept the amount so deposited as it was short by a small amount, and eventually a creditor of his attached and realised Rs. 129-14-0. Out of this deposit, a balance of Rupees 1,793-14-0, was thus left. On 20 March 1923 a part of the mortgaged properties was sold with the plaintiff's consent, and this sale fetched Rs. 4,365, out of which Kunja Chakravarty was paid Rs. 3,000 leaving a balance of Rs. 1,365. These two amounts of Rs..1,793-14-0 and Rupees 1,365 , making a total of Rs. 3,158-14-0, was paid to the plaintiff on that date, of which Rs 1,978-2-0 was credited to his dues on the mortgage, and the balance Rs. 1,180-12-0, was paid to him in satisfaction of his dues on certain pro-notes and for certain other charges. Taking the principal amount of the mortgage as Rs. 1,433 and giving credit for Rupees 1,978-2-0 then received, the dues on 20 March 1923 was found to be Rs. 481.12-6 which however the plaintiff's father promised to remit. The plaintiff's father eventually refused to grant the remission and so the appellant left his service. Other defences were also taken: want of legal execution and attestation; penal and unconscionable rate of interest; paramount title; maintainability of the suit; etc.

(3.) The Judge has overruled all the defences and accepting the plaintiff's case has made a decree. The first and most important question in the appeal is whether Rs. 5,500 was lent in cash or only Rupees 1,433 was paid in cash, the balance Rs. 4,067 being retained for clearing off the prior mortgages. On this question considerable reliance was placed upon the words of the bond which after reciting the two prior mortgages and saying that it was necessary to borrow Rs. 5,500 for paying them off and also for other needs of the mortgagors stated: "We, on keeping alive the rights under both the aforesaid mortgages . . . . borrow from your tehbil today the sum of Rs. 5,500." It has been argued that this stipulation shows that the dues on these earlier mortgages must have been retained and that no prudent mortgagee would, if he intended to keep alive his rights under the previous mortgages, in such circumstances, have consented to allow the mortgagors to take the money for paying off the earlier mortgages. We are unable to see that the recital referred to above indicates any such thing. Nor are we able to hold that the story that the plaintiff trusted the mortgagors and left it to them to pay off the earlier mortgages is a story which is so improbable that it is intrinsically unacceptable. It is true that it would be to the interest of the mortgagees to see that the previous mortgages were paid off; but having regard to the fact that the appellant was soon after taken in the employ of the plaintiff's father, it was not an impossibility on the part of the plaintiff's father to be a bit indulgent to the mortgagors so that they might settle thoir own terms with the prior mortgagoes as regards their satisfaction.