BHASKERRAO Vs. BALMUKUND

JUDGEMENT

(1.) THE suit for foreclosure out of which this appeal arises is based on a mortgage-deed, dated 1st May 1889. The consideration of the deed was Rs. 600. The mortgagee has been in possession of the mortgaged property since the date of the mortgage. Nevertheless he claimed that the amount due on the mortgage at the date of the suit was over Rs. 39,000. Mr. Amardekar in dealing with this case held that the deed provided for interest at 1 per cent. per mensem and it was provided that the usufruct was to be taken in lieu of interest. He directed that the parties should state what the profits were in each year from 1889 onwards. It is admitted before us that in view of the finding that profits were to be taken in lieu of interest accounts were not necessary for the years preceding the date on which the mortgage money became payable. Mr. Bhagade succeeded Mr. Amardekar. He held the deed provided for interest at 2 per cent. per mensem; the usufruct of the property was to be taken as equivalent to interest at 1 per cent. per mensem and the remaining interest was to be paid in cash at the end of 25 years. No accounts were therefore necessary. He found that over Rs. 50,000 was due on the mortgage and passed a preliminary decree for foreclosure accordingly. The defendants appeal to this Court.

(2.) THE points urged before us are: (1) That the mortgage-deed provided for interest at 1 per cent per mensem only (2) That if it provided for payment at 1 per cent. per mensem compound interest in addition to the usufruct, the mortgage was a hard and unconscionable bargain which should not be enforced by the Court. (3) That the plaintiff was liable to render an account of the profits after the date on which the mortgage debt became payable.

(3.) THERE is a further clause that: however much the debt might amount to at the end of 23 years owing to the taking of yearly accounts, that is, giving interest on principal and interest it would be a charge on the fields.