BIBHUTI BHUSAN GHOSE Vs. BAIKUNTHA NATH MONDAL

JUDGEMENT

(1.) This is an appeal from a decision and a decree of the Subordinate Judge, 2nd Court, 24- Parganas, dated November, 29, 1930, in a suit "brought by the plaintiff-appellant, for enforcement of an equitable mortgage) in which in addition to prayer incidental to a mortgage suit, it was claimed by the plaintiff in the alternative that should it be found that the plaintiff was not entitled to a mortgage decree, for any reason whatever, a decree might be passed against the defendants Nos. 1, 2 and 6 for the amount claimed in the suit, on declaring the said defendants liable to pay the dues of the plaintiff according to law and contract.

(2.) The plaintiff's case before the Court, as stated in his plaint, was that on December 2, 1920, the defendants Nos. 1 and 2, father and son, took a loan and executed a promissory note for Rs. 10,003 in his favour at premises No. 13, Esplanade East, Calcutta, and delivered to him, eight mortgage bonds in favour of the defendant No. 1, and two chalans showing deposit of money by the defendant No. 2 in Court, thus creating an equitable mortgage in favour of the plaintiff. The defendants Nos. 3 to 5, the mortgagors in respect of the mortgage bonds delivered to the plaintiff, were aware of the above transaction from the very time of its completion; the defendants Nos. 1 and 2 made payments to the plaintiff on account of interest due on the loan. The defendant No. 1 had on June 26, 1924, conveyed his interest in the mortgage bond hypothecated with the plaintiff to the defendant No. 6, Oriental Bank, Ltd., (hereafter referred to as the Bank), by a deed of assignment; by the terms of the aforesaid deed, and by the terms of a deed of release and surety bond, executed on September 30,1926, the Bank was liable to pay the debt due to the plaintiff. On this part of the case, it was asserted by the plaintiff in para. 13 of his plaint, that on April 14, 1927, the defendant No. 6 (the Bank), wrote a letter to the elder brother of the plaintiff, offering to pay a sum of Rs. 10,500 to the plaintiff out of his dues, in full satisfaction of the debt due by the defendant No. 1. The plaintiff did not agree to the proposal made by the Bank for an amicable settlement. According to the averments made in the plaint, three out of the eight mortgage bonds, deposited with the plaintiff by the defendants Nos. 1 and 2, were taken away by the defendant No. 1 from the plaintiff, on some pretext or other; and were not returned to him. Five of the mortgage bonds said to have been deposited with the plaintiff by the defendants Nos. 1 and 2, were produced by the plaintiff in Court. It may also be mentioned that seven out of the. eight mortgage bonds said to have been de-posited with the plaintiff, are covered by the deed of assignment executed by the defendant No. 1 on January 28, 1924, in favour of the defendant No. 6, the Bank.

(3.) The plaintiff's claim in suit was resisted by the Bank (defendant No. 6), and by the defendants Nos. 1 and 2. The defendant No. 3 a mortgagor in respect of the several mortgages said to have been deposited with the plaintiff, also filed a written statement, and assorted that the mortgages mentioned by the plaintiff had been paid off, and prayed for dismissal of the plaintiff's suit as against him. The knowledge of the equitable mortgage set up by the plaintiff was denied by the defendant No. 3, and it was claimed that he was not bound by the same. The Bank, denied the equitable mortgage set up by the plaintiff, and asserted that no valid and enforceable equitable mortgage was created by the defendants Nos. 1 and 2 in favour of the plaintiff. It was also claimed that there was no liability so far as the Bank was concerned to the plaintiff, in any manner whatsoever. In regard to the written statement filed by the Bank, it has to be noticed that the statement made by the plaintiff in para. 13 of the plaint, relating to a letter written, by the Bank to the plaintiff's elder brother, on April 14, 1927, was not controverted in any way. A proposal for amicable settlement of the plaintiff's dues from the defendants Nos. 1 and 2 was specifically mentioned in the written statement filed by the Bank, and it was said that the plaintiff at the instigation of his brother, and led away by wrongful greed did not agree to the same. The defendants Nos. 1 and 2 admitted the loan on promissory note, but denied that an equitable mortgage was created on December 2, 1920, y execution of a promissory note and deposit of documents, as alleged by the plaintiff, at No. 13, Esplanade East, in Calcutta. The defendants asserted that the hand-note filed in the suit was executed by them at premises No. 4, Bakul Bagan, 1 Lane, Bhowanipur, outside Calcutta. So far as the delivery of documents was concerned, the defendants Nos. 1 and 2 in their written statement, purported to say that six out of the eight, mentioned by the plaintiff in his plaint, were delivered to the plaintiff; but that there was no such delivery of documents in Calcutta, as could create an equitable mortgage in favour of the plaintiff, as alleged by him.