BHUTNATH BOSE Vs. KALI PRASAD PATRA

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the Additional District Judge of the 24-Perganaa affirming a decision of the Subordinate Judge. The plaintiff sued upon a mortgage dated the 14th Magh 1305.

(2.) Three questions arise on the appeal, first, whether the plaintiff s suit is barred by limitation, secondly, whether there was in fact consideration for the mortgage, and thirdly, a point which has not been dealt with by either of the lower Courts, whether the provision for interest at the rate of 75 per cent. contained in the mortgage-bond is an unconscionable bargain.

(3.) With regard to the first point, both the lower Courts have held that upon the construction of the bond the plaintiff s claim is barred by limitation. The bond provides for repayment of the principal and interest by the month of Chaitra 1305, but there is this additional provision, namely, that if the mortgagor fails to repay the amount upon this date he is to give to the mortgagee the produce of the mortgaged property for three years, namely, for 1306, 1307 and 1308. There is a further provision that the mortgagor will not thresh the produce without the permission of the mortgagee, and that if he does so the mortgagee should realize the principal and interest in the month of Magh 1308. Now as already stated, both the Courts have held that upon the construction of the bond the plaintiff s claim is barred by limitation, as his cause of action, they say, arose in the month of Chaitra 1305.. We do not think that this is so upon a true construction of the bond, for we think the proviso already referred to with regard to the question of produce extends the time for payment until the year 1303, and that this suit is brought within time and that no question of limitation arises. If the plaintiff had sued in the year 1306, default having been made in payment of the principal, we do not think that there would have been any answer to the contention of the defendant that he was entitled to give the produce for the years 1308, 1307 and 1308, and that before 1308 no cause of action arose in the plaintiff for the enforcement of the money due upon the mortgage bond.