NANHAK SINGH Vs. RAM LAGAN DUBEY

JUDGEMENT

(1.) This is an appeal from the preliminary decree in a mortgage suit. The bond was executed by defendant 1 on 17 July 1907, for a principal sum of Rupees 1633-10-10. The mortgagor made an admitted payment of Rs. 1500 on 12th September 1919. He sold a part of the mortgage property on 19 July 1921, to defendant 10 for a consideration of Rupees 2615-10-0 of which Rs. 170-11-0 was paid to the vendor in cash. Rs. 322 was left with the purchaser for payment to a creditor Asghar Ali, Rs. 400 similarly was left in deposit for payment to another creditor, a co-operative bank, and Rs. 1722-15-0 was similarly left in deposit for the satisfaction of this mortgage. The purchaser made a payment on account of this mortgage on 22 August, 1921 of Rs. 1200. According to the plaintiff no further payment was made and the mortgage debt with interest at bond rate amounted at the date of suit to Rs. 5113-9-10. The defence was that a further payment of Rs. 695-7-9 was made on 23 March 1929, leaving only Rupees 126- 15-0 due which the defendant was ready to pay with interest to date but the plaintiff was not willing to receive. It is also said that interest is not payable at the rate charged by the plaintiff, that being a penal clause in the bond and not enforcible. The Subordinate Judge negatived both these contentions of the defendant and decreed the entire claim.

(2.) In appeal the same points have been raised and in addition it has been contended that having regard to the provisions of the Bihar Money-Lenders Act, 1938, the plaintiff is entitled at the most to a very much smaller amount than that claimed. We propose to discuss first the plea of payment. It is supported by a receipt purporting to be signed by the plaintiff Ram Lagan Dube. The Subordinate Judge compared the disputed signature with admitted signatures of Ram Lagan and found the disputed signature not to be genuine. Ram Lagan is an old man whose sight according to the evidence has been failing for the last seven or eight years. The signatures on the admitted documents as well as on the disputed ones have been placed before us. The appearance of the admitted signatures is entirely consistent with their being made by an old and feeble man who can hardly see what he was writing. Those on the disputed documents are clearly and firmly written as if by a very much younger man.

(3.) They cannot possibly have been written by the same hand as the admitted signatures unless in the admitted signatures the plain, tiff was deliberately disguising his handwriting which there is no reason whatever to suppose. When the earlier payments were authenticated by endorsement on the back of the bond, it is, as the Subordinate Judge has pointed out, not very probable that the defendant would make a substantial payment like this without getting such an endorsement. We therefore maintain the finding of the Subordinate Judge that the payment pleaded has not been established.