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1922 Supreme(SC) 62
Privy Council
Salvesen, Sir Lawrence Jenkins, Sir John Edge, Phillimore, Justice Buckmaster, JJ.
(Chelikani) Venkatarayanim Garu and others -Appellant
Versus
Venkata Subadrayamma Jagapathi Bahadur Garu, and others -Resopndent
P.C. Appeal No. 21 of 1921
Decided On : 30-11-1922
Douglas Grant, E. Dalgado, Kenworthy Brown, De Gruyther, C. V. Rao, K.V.L. Narasimham, Upjohn
In a mortgage, the primary obligation is debt repayment; security provisions cannot justify refusing a tender of payment. Furthermore, a formal tender of payment is only excused if the creditor's refusal to accept it is clear and unequivocal.
Headnote:(A) Mortgage Law - Repayment and Security - The primary obligation of a mortgage deed is the repayment of the debt; other provisions, regardless of their extent, serve as security to enforce this obligation - A mortgagee's refusal to accept a tender of payment based on a breach of a security provision, such as the failure to redeliver possession, is unjustified if such acceptance does not prejudice the mortgagee's rights to the security.
(B) Mortgage Law - Fixed Charges - An agreement between a mortgagor and mortgagee to fix a specific annual sum for variable charges, such as repairs and administrative expenses, is valid and enforceable, as parties may bargain for a fixed sum regardless of whether actual expenses exceed or fall below that figure.
(C) Law of Tender - Formal Tender - A formal tender of payment may be excused if the facts indicate that the tender would have been a mere formality because the creditor would have refused it - However, a communication from the creditor that does not unequivocally refuse the money or clearly release the debtor from the obligation to tender does not excuse the absence of a formal tender, particularly where the creditor continues to state the amount of debt due.
Facts of the case:
A mortgage was executed for a principal sum with monthly interest, repayable in annual installments. The deed included a provision for fixed annual charges for maintenance and a requirement for the mortgagor to redeliver possession after a lease period. The mortgagor defaulted on an installment and failed to redeliver possession. Assignees of the equity of redemption attempted to tender an installment, which was refused by the mortgagee on the grounds that it might prejudice rights regarding the breach of possession. Later, a dispute arose regarding whether a formal tender of the entire balance was excused by a letter from the mortgagee claiming the estate had already vested in him due to the terms of the deed.
Findings of Court:
The court found that the refusal of the tender of the installment was unjustified as the payment of installments is the main obligation of the deed. The agreement for fixed annual charges was held to be valid. Regarding the final payment, the court held that the mortgagee's letter did not constitute an unequivocal refusal or a release of the obligation to tender, as it was based on an erroneous view of the deed's provisions and still specified the total debt amount.
Issues: (1) Whether the mortgagee was justified in refusing a tender of an installment due to a breach of the possession agreement; (2) Whether a fixed annual charge for variable expenses in a mortgage deed is valid; and (3) Whether a creditor's letter claiming a right to the property excuses the debtor from making a formal tender of the mortgage debt.
Ratio Decidendi: The primary obligation in a mortgage is the repayment of the debt; security provisions cannot be used to justify the refusal of a valid tender of payment. Fixed charges for variable expenses are permissible by contract. A debtor is not excused from making a formal tender unless the creditor's refusal is clear and unequivocal.
Result: Appeal allowed in part.
Legal Category Hierarchy
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property law
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mortgages
- mortgage with possession
- equity of redemption
- collateral advantages
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mortgages
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practice and procedure
- tender of payment
Lord Buckmaster:-
Three questions are raised upon this appeal. They all arise out of the rights created under a mortgage deed which was executed on the 2nd March, 1891, in favour of the first plaintiff in the suit by he first defendant. The appellants are assignees of the equity of redemption of that mortgage, and claim that in the accounts takes do determine the true amount due under the deed, three mistakes have been made adverse to their interests. The mortgage deed itself is in a peculiar form. It is a mortgage with possession to secure the repayment of Rs. 1,80,000 with interest at the rate of Rs. 1 per cent. per month; the principal of the debt is to be repaid by sums of Rs. 10,000 payable year after year, begin ning on the 1st February, 1892, down to the 1st February, 1898, and on the 1st February 1899 the entire balance of the debt and the interest is to be paid. These instalments are protected not merely by the security of the mortgaged property but also by an express agreement in these terms : We shall pay to you at Tuni, the principal according to the aforesaid instal ments and the whole of the interest upon the entire debt calculated with reference to the instalments along with the last in stalment." There was a further agreement in the deed by which certain charges which would be incurred by the mortgagee, when in possession, were fixed at the sum of Rs. 4,000 per annum. They are specified as being the usual earth work repairs annually done to canals, etc; expenses on account of the village headmen, service Inams of village headmen, village deities contingent charges and other business expenses. The deed also contained two further material provisions. The first that notwithstanding the arrangements by which the mortgagee was to be put into possession a lease was to be granted by him to the mortgagor for a period of two years, and the second that if the provisions of the mortgage deed as to re-delivery of the estate to the mortgagee by the mortgagor at the expiration of the lease for two years were not carried out, the mortgaged estate should at the end of the time stand sold to the mortgagee for the entire amount due inclusive of the bal ance of principal and interest, and further that the mortgagor should not sell any portion of the estate to anybody except the mortgagee. Arrangements were also made by which the mortgagee was to pay all the necessary peishoush or quit rent or land cess, and a provision that if that should be raised there should be a further right on his part to recover the money from the mortgagor with interest as therein men tioned. What happened consequent upon the execration of the deed was this : The lease for two years was duty granted to the mort gagor, but at the expiration of the term he did not pay the second instalment due on February 1, 1893, nor did he redeliver pos session to the mortgagee. The mortgages accordingly instituted a suit for recovery of possession and for the amount of too second instalment. To meet this a sum of Rs. 15,000 was paid into Court by the appellants on behalf of the mortgagor, but possession was not delivered up by him and he was in fact in possession at the time when the third instalment became due.
Shortly before this date, namely on 16th January, 1894, the mortgagor executed a sale dead for Rs. 1,60,000 for same of the mortgaged properties, and a mortgage for Rs. 60 000 for the others in favour of the appellants, and requested them to pay to the mortgagee Rs. 2,05,000, being the total Rs. 2,20,000 after deducting the Rs. 15,000 already paid into Court. The ap pellants accordingly, on the 10th February 1894 tendered the Rs. 10,000, due on the 1st February to the mortgagee, who refused to accept the money upon the ground that there exited at that date a breach of the bargain made by the mortgagor as to re delivery of possession, and that conseq uently his acceptance might prejudice his rights. Their Lordships think that this is a mistaken view of the rights wh
