V R VENKATARAMA AIYAR Vs. TGOPALAKRISHNA PILLAI

JUDGEMENT

(1.) The appellant in this case is the 2nd defendant. The facts not disputed are, the plaintiff had lent the 1 defendant a sum of Rs. 12,500 on an equitable mortgage of his house by means of a promissory note and pledge of title-deeds as security. In the beginning of March, 1925 plaintiff was informed that the 1 defendant was selling the house to the 2nd defendant under an arrangement that the 2nd defendant should discharge the mortgage. On 10 March, 1925, 1 defendant paid Rs. 900 to P.W. 2 on behalf of the plaintiff in full discharge of the interest clue on the mortgage and undertook to pay the principal within a week and that if the principal was not so paid further interest would accrue until the date of payment. 2nd defendant bought the house on 5 March, 1925. According to him he made a valid tender of Rs. 12,500 to the plaintiff on 16 March, 1925 within a week of grace but the plaintiff refused to have anything to do with him. According to the plaintiff there was no valid tender. The principal sum was deposited in the High Court on 22nd October, 1925. Plaintiff in this suit sues for interest Rs. 925 which he claims due to him as having accrued between 10 March, 1925 and 22 October, 1925. The Lower Court gave a decree for the sum against both the defendants personally. The 2nd defendant appeals.

(2.) The main contention, of course, is that as the plaintiff refused his valid tender made within a week of grace plaintiff is not entitled to any interest, and the chief point for decision is what happened on the 16 March and whether there was then a valid tender of the whole sum due. 2nd defendant was the purchaser of the equity of redemption and as such was of course entitled in law to tender the mortgage amount.

(3.) The alleged tender was made at the Cosmopolitan Club. Plaintiff as P.W. 1 admits that the 2nd defendant, D.W. 3 and the agent of 1 defendant came to him at the Club, that the 2nd defendant asked him to receive the money and give him receipt and that he replied "I will take it from you if Sami Naidu (the mortgagor) says so." Later on in his deposition he says, "He (i.e., 2nd defendant) did not bring money on the 16 or show it to me" : that is all the account the plaintiff gives of this incident, and his is the only evidence on his side about it. How he knew that no money was brought he does not explain. 2nd defendant's version as D.W. 2 is that the three persons abovenamed went to the Club and told plaintiff that they had brought the money, that plaintiff asked "Who are you"; 2nd defendant said "I am the purchaser as you know"; plaintiff then refused to receive the money saying "I have nothing to do with you. The mortgagor must come." 2nd defendant says he had the money Rs. 7,000 in cash and the rest in the form of a draft on the Imperial Bank, that he did not show the plaintiff all the money as he would not listen to the offer, but showed him his "bulging pocket" and said he had it. Two witnesses on his side, D.Ws. 3 and 4 state that the plaintiff refused to receive the money. We regard the evidence of D.W. 3, a vakil of the High Court and a disinterested party, as most reliable on this point. He says that when they told plaintiff they had come to pay he said, "Who are you? I do not know you. I had no dealings with you. My transactions were with the 1 defendant." D.W. 3 was not cross-examined on this part of his evidence and we accept his account. From this it is clear that the plaintiff refused emphatically to have any dealing with the 2nd defendant. At the bar his learned Advocate sought to defend him by alleging that he really did not know who the 2nd defendant was. It is highly significant that plaintiff never gave that reason himself in the witness box and had he ventured to do so, he would have been at once confronted with his own statements in the plaint paragraph 6 that in the beginning of March (obviously some date before the 16th) he was informed of the sale of the house to the 2nd defendant and of the arrangement that 2nd defendant was to discharge the mortgage, and in paragraph 8 that he actually himself sent a letter to his vakil with whom he deposited the title-deeds to hand them over to the 2nd defendant, and again in paragraph 9 where he clearly admits that he was looking to the 2nd defendant as well as the 1 defendant to pay him the mortgage amount. P.W. 2 says that he himself told the plaintiff on the 10 March of the sale in favour of the 2nd defendant. It appears to us futile for the plaintiff to argue that he did not know who the 2nd defendant was. His profession of ignorance of who the 2nd defendant was when 2nd defendant came to the Club was therefore a mere pretence in order to give a colour of justification to his point blank refusal to negotiate. We are quite satisfied that the plaintiff knew perfectly well who 2nd defendant was and that he knew him to be the purchaser of the property. If the reason which the plaintiff gives in his evidence for not dealing with the 2nd defendant, namely, that the mortgagor must also consent, had been really stated by him, then that was also not the true reason but a mere excuse to cover his refusal to deal with the 2nd defendant at all. The 1 defendant's agent D.W. 4 was then present with the 2nd defendant and the plaintiff's statement that he did not then know him to be an agent of the 1 defendant is wholly disingenuous since this man was present at the previous payment of Rs. 900 interest to P.W. 2 on behalf of the plaintiff. It is significant of the plaintiff's real attitude that he does not claim that he told the 2nd defendant that he should pay the amount to P.W. 2 whom on his own case he had authorised to receive the money. It is quite obvious that he was not going to receive the money from the 2nd defendant under any circumstances or at any time or place. The real reason for his pettish refusal to receive the money appears to be pique because he had himself expected that 1 defendant would sell the house to him and annoyance at having been forestalled by 2nd defendant.