KSHETRA NATH SIKDAR Vs. HARASUKDAS BALKISSEN DAS

JUDGEMENT

(1.) These two appeals are against the preliminary decree and the final decree in the same suit which was brought for enforcement of a mortgage by deposit of title deeds in the town of Calcutta. The appellants are Defendants 3 and 4. The Defendant No. 1 purchased certain properties in the suburbs of Calcutta by a deed dated the 29 of September 1919 for Rs. 1,03,000. The area of the land purchased was 12 bighas odd. Out of this he had sold to third parties about 2 bighas of land which is not the subject matter of the present litigation. The Defendant No. 1 subsequently borrowed a certain amount of money from one Torit Bhusan Roy by depositing the fcitle deed with him. He afterwards approached the manager of the plaintiff firm and asked for a loan of Rs. 70,000 on the security of the property in question. The manager agreed. The plaintiff's case is that on the 21 of January 1920, the manager Kissen Gopal Bagri, advanced Rs. 25,000 which he made over to the attorney who was acting for Defendant No. 1 on condition that he would pay off the debt of Defendant No. 1 to Torit Bhusan Roy and after getting back the title deed deposit it with Kissen Gopal Bagri for the loan of Rs. 70,000 which Bagri had agreed to make on the mortgage of the property. The attorney got back the document and made over the title deed to Bagri under the direction of Defendant No. 1 on the 24 of January 1920, when Bagri made a further advance of Rs. 25,000 to the Defendant No. 1.

(2.) After getting the title deed of the Defendant No. 1, Bagri and Defendant No. 1 went to the office of the plaintiff's attorney Jatindra Nath Basu and a memorandum of the transaction already completed was drawn up by the attorney and signed by Defendant No. 1, Ganendra Krishna Mitter. The memorandum was in the form of a letter addressed to the firm, Further sums were advanced to the Defendant No. 1 on 29 January, 4 February and 12 February 1920, making up the total amount of Rs. 70,000 that was agreed to be secured by the mortgage. The money was advanced on hundis of which the Defendant No. 1 was the drawer as well as the acceptor. These hundis were not met on due dates but were renewed from time to time and the money thus advanced not having been paid the plaintiff has brought this suit for recovery of the sums due. The last series of hundis which the Defendant No. 1 drew are given at the foot of the plaint. Out of the 10 bighas of the property which remained with the Defendant No. 1 he sold to Defendants 5, 6 and 7, 2 bighas on the 24 of March 1920 for Rs. 47,500. On the 11 of May 1920 Defendants 5, 6 and 7 sold for Rs. 75,000 the entire quantity of land purchased by them from Defendant No. 1 to Defendants 3 and 4 who are the appellants before us. The Defendant No. 1 subsequently became insolvent and Defendant No. 2 is the Official Assignee in whom the interest of Defendant No. 1 is now vested.

(3.) Various questions were raised before the Subordinate Judge by Defendants 3 and 4 to the claim made by the plaintiff. The Defendant No. 1 did not appear to contest the suit. The Official Assignee also did not contest the suit. Defendants 5, 6 and 7 were not originally joined as defendants but they were added on the objection of Defendants 3 and 4. These defendants really contested the suit. In the Court below 15 issues were raised and the Subordinate Judge decreed the suit and directed that the plaintiff was entitled to the sum claimed with interest at the rate of 18 per cent per annum. There is some obscurity in the judgment with reference to the rate of interest. The plaintiff claimed 18 per cent interest in the plaint, but the Subordinate Judge observes that there was some claim for interest at an increased rate which he did not allow. No question, however, was raised as regards the rate of interest before us, or the amount found due in the final decree, so it is unnecessary to say anything further with reference to it.