GAURI LAL Vs. RAM LAL SHAW

JUDGEMENT

(1.) This is a second appeal on behalf of defendants l and 3 from the concurrent decision of the Court below decreeing the plaintiffs suit for damages for breach of contract of sale registered on 4 December 1934, for Rs. 700. Out of the said consideration money Rs. 535 was left in deposit with the vendees, who were really defendants 1 and 2, the appellants, though the sale-deed was taken benami in the name of defendant 3. It appears that before the sale-deed in question the vendor had executed two mortgage bonds in favour of one Sundar Singh father of defendant 4 one in the year 1928 and the other in the year 1932. It was deemed from these two mortgages that the sum of Rs. 535 had been kept in deposit with the vendees. The plaintiffs case further is that the vendees did not redeem these mortgages nor did they tender money in deposit with them to the mortgagee. The result was that the mortgage Suit No. 151 of 193G was instituted by the mortgagees, and a preliminary decree was passed on 27 May 1937. One of the properties sold to the vendees, which was also the subject-matter of the mortgage, was sold on 24 January 1940, for Rs. 450 which did not satisfy the mortgage decree in full. The rest of the mortgage decree has been realised in part from the plaintiffs, which should really have been paid by defendants 1 and 3. On these allegations the plaintiffs instituted a suit originally for the unpaid portion of the consideration of the sale-deed. The suit was instituted on 22 February, 1940. Subsequently, on 10 August 1943, when the Court was about to deliver judgment, the plaint was amended so as to make it a claim for damages for breach of contract in writing and registered.

(2.) Defendant 1 contested the suit on the ground that the mortgage dues of Sundar Singh could not be liquidated by the vendees inasmuch as the amount of Rs. 535 left in deposit with them was not sufficient for that purpose. It was stated that really Rs. 600 was required to redeem the two mortgages aforesaid. It was also contended on behalf of the defendant that the sum of Rs. 535 had been tendered to the mortgagees, who refused to accept the same on the ground of the insufficiency of the amount.

(3.) The learned Munsif decreed the suit modifiedly holding that the plaintiff was entitled to a decree for a sum of Rs. 535 together with interest at one per cent. per mensem from the date of the sale-deed, namely, 25-9-1934 up to 24th January 1940, the date on which the property was sold in execution of the mortgage decree less the sum of Rs. 450 which was the sale proceeds of the auction sale. The Munsif granted a decree for interest at the rate of 6 per cent. per annum on the balance of the amount thus calculated with costs of the suit. On appeal the learned Subordinate Judge upheld the decision of the learned Munsif but modified it to this extent that he held that the plaintiff was entitled to get interest at one per cent. per mensem not from the date of the sale-deed but from the date of the registration of the deed, that is 4 December 1934. Hence, this second appeal by the defendants Nos. 1 and 2.