CHOWDHURY KASI NATH MITRA Vs. BHIKAN CHARAN MAITY

JUDGEMENT

(1.) This is an appeal by the defendant from the decision of the learned Subordinate Judge of Midnapore, dated the 29th day of August 1916. The appeal is one of the most frivolous nature. I doubt whether I have ever seen an appeal with less to support it than the present one; and, if I may say so, that is saying a good deal. The suit was brought to enforce a registered mortgage bond. The suit was of the simplest description and the mortgage-bond bore interest at the rate of 9 1/2 per cent, per annum with annual rests, which in this country certainly is not excessive. The mortgage is admitted by both sides.

(2.) The two points raised in this appeal are these: First of all, that a part of the claim is barred by limitation and secondly, that the interest contracted to be paid by the mortgage- bond is penal. Both the points are equally bad. The mortgage itself was dated the 7th May 1906. I give the date under the ftregorian Calendar, because I find it more convenient. The mortgage purported to secure a sum of Rs. 3,000 with interest. The mortgagor took only Rs. 1,000 at the time of the execution of the bond; the other Rs. 2,000 was what is called in this country kept in deposit with the mortgagee, that means that the money was placed in a separate account in the hands of the mortgagee, the mortgagor having the right to have the same whenever he wished. The date of the repayment was agreed to be 13th April 1908. The date of the repayment arrived and the sum of Rs. 2,000 still remained in deposit with the mortgagee. On the 1st October 1908 the Rs. 2,000 was paid over to the defendant by the plaintiff and subsequently--and wisely I expect--the mortgagee plaintiff obtained a registered receipt for the Rs. 2,000 on the 7th January 1909. The first point is that the suit to recover the sum of Rs. 2,000 is not based upon the mortgage security at all but that it is a mere personal remedy to recover the sum of Rs. 2,000 due upon a simple contract and, therefore, it is barred by limitation. There is nothing in this point. It is a non-arguable point and it only requires to be stated to show how wrong it is. It is said that there are decisions of some of the Courts in India and also in America that support such a proposition. All I can say is that, if there are such decisions, I respectfully disagree with them and I expect that, if the decisions were available and could be looked at, one would find that they do not lay down the proposition that the learned Vakil for the appellant in this case says that they do.

(3.) The other point is an extremely frivolous point, namely, that the rate of interest is penal. What the non-penal rate is is not suggested. The defendant has not gone into the witness box to state that any undue influence was exercised or any unfair means were adopted. This rate, the rate of 9 1/2 per cent, per annum, is clearly not so high on a mortgage in the district of Midnapore of a property of this nature as to shock the conscience of the Court. It is a rate which the i Judges in the local Courts at Midnapore must see exceeded every day the Court sits, Certainly 9 1/2 per cent, per annum with annual rests is usual in the Moffusil and, so far as I know, it is a rate that has not been quarrelled with in this Court. I notice that, since the intended legislation, this class of penal rate seems to have increased in this Court. When the mortgagor sees that he cannot repay the money the rate is stated to be penal and excessive. The short answer is either do net borrow money at this rate or, if you do borrow, repay the money on the date you agreed on the contract to repay. The mortgagor has only got himself to thank if on account of his failure to pay off the loan for a lung period of year?, the debt amounts to a considerable sum. The appeal fails and must be dismissed with costs. We assess the hearing fee at one hundred and fifty rupees. Shmasul Huda, J.