GANGAYA NAROTTAM SHASTRY Vs. ARDESHAR DINASHAW

JUDGEMENT

(1.) This is an appeal arising out of a suit on a mortgage. The learned Subordinate Judge has in this suit on a simple mortgage entered into an elaborate discussion as to the matter of an agreement previous to the mortgage between the parties, by which the plaintiff acted as the managing agent of some business carried on by the defendant; and by entering into an elaborate discussion as to the accounts of the managing agency the learned Subordinate Judge held that the suit on the mortgage was not maintainable. The mortgage-deed is to be found at p. 59, Vol. "A" of the paper book. It is a mortgage bond for money advanced and for future advances to be made to the defendant up to a certain amount for the purpose of carrying on the business. The money actually advanced before the date of the mortgage was Rs. 14,400 odd, and after that date the future advances, according to the plaintiff's evidence, was Rs. 10,700, although the plaintiff stated in his plaint that it was something in excess of that amount. The defendant in his written statement admitted the execution of the bond. He has stated that the total advanced on the bond was Rs. 24,699-10-0. He further stated that Rs. 16,27-6-8 had been realized by the plaintiff in satisfaction of the mortgage-bond. Thereupon the defendant admitted that Rs. 8,423 for the principal and Rs. 900 for the interest was due to the plaintiff.

(2.) The learned Subordinate Judge after going into an elaborate discussion as to the account of the managing agency of the plaintiff gave a simple money decree for Rs. 3,821 to the plaintiff after setting off a cross claim of the defendant to the extent of Rs. 5,000. I cannot understand the decree made by the learned Subordinate Judge. He has directed the defendant to pay court-fees on Rs. 4,000. At the lowest he might have made a decree in favour of the plaintiff for the amount admitted by the defendant himself. But curiously enough he did not do even that. It seems that the learned Subordinate Judge is not familiar with mortgages for future advances, as he states in his judgment that if the suit had been for Rs. 14,400 on the mortgage-bond, he would have held that the suit was maintainable; but as it was for the amount actually advanced before the bond and for the amount advanced subsequently, he was under the impression that the suit was not maintainable in the form in which, it was brought. This opinion, it is hardly necessary for me to say, cannot be supported. The real question is whether the defendant can in a simple mortgage suit claim for an elaborate account of the managing agency of the plaintiff of his business and say that the plaintiff had realized a certain amount of money on account of his business and that he, therefore, was bound to render an account of moneys realized as such agent and to credit that amount to his mortgage-debt.

(3.) In my opinion, that is a claim which is foreign to a simple mortgage suit. No doubt if the defendant can establish that the plaintiff received a lump sum of money from him or the goods for which he was indebted for a certain sum of money which according to their agreement ought to have been credited to the mortgage-bond, ho could certainly maintain that position and that position can be maintained in my opinion with regard to one item of payment, that is, to the extent of Rs. 4,358-10-0. The plaintiff obtained goods from the defendant's firm to the extent of that value. Although the plaintiff alleged that the price of the goods was set off against a different debt of the defendant, that different debt has not been proved and the learned Subordinate Judge has not accepted the story. This sum of money, therefore, must be deducted from the principal amount claimed. The learned advocate for the plaintiff accepts the principal amount as stated by the defendant in his written statement, that is, Rs. 24,699-10-9.