MIRALAL Vs. V. M. JAKATDAR

JUDGEMENT

(1.) THE facts giving rise to this and the other two First Appeals Nos. 101 and 102 of 1927 are these. On 21st December 1912 in consideration of a cash loan of Rs. 16,000 the defendant had executed a mortgage by conditional sale in favour of one Bhika Patel. The mortgage debt was to carry interest at 0-11-6 per cent per mensem, and was repayable in 12 years by annual instalments of Rs. 1,333 each in the next 11 years and the last instalment for the 12th year was of Rs. 1,337. Together with each annual instalment the interest on the entire amount at the above rate was also agreed to be paid and defaulted instalments were to carry compound interest at the rate of Rs. 1-8-0 per cent per mensem. The whole amount was exigible on failure to pay any two instalments. Repayments were agreed to be taken in the first instance towards interest due and the balance if any towards the principal.

(2.) ON 3rd December 1915 the defendant again borrowed Rs. 16,000 from the said Bhika Patel and executed two separate mortgages by conditional sale in his favour, one for Rs. 10,000 and the other for Rs. 6,000. The debts due on both these mortgages were repayable in 16 years by annual instalments of Rs. 625 and Rs. 375 respectively. The mortgage debt in each case was to carry interest at Rs. 1-6-0 per cent per mensem and was payable in respect of the entire principal together with each annual instalment. The whole amount due on each bond was exigible on failure to pay any two instalments, and defaulted instalments were to carry to compound interest at the rate of Rs. 2 per cent per mensem. As in the case of the first mortgage repayments were to be appropriated first towards interest due in respect of both these mortgages and the balance towards the principals.

(3.) PRACTICALLY the defence in all the three suits was the same. The defendant admitted the execution and receipt of consideration of all the three mortgages as also the execution of the deed of assignment in plaintiff's favour. He, however, pleaded that the transfer in plaintiff's favour was void under Section 23, Contract Act, because it was a champertous transaction. It was also alleged that on 9th January 1924 Balaram as the manager of the joint family consisting of himself and his brothers having received Rs. 2,975 had agreed with the defendant to receive Rs. 29,075 more towards full discharge of all the mortgages provided the payment of this sum was made within three months, and that Balaram again promised to wait for another year and to accept payment of the amount due with interest at 8-ahnas per cent per mensem.