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HIGH COURT OF CALCUTTA
CHAKRABARTI, S. R. DASS
DURGA PROSAD CHARNARIA - Appellant
Versus
MARIO GALSTAUN - Respondent
A. F. O. D. 73 Of 1952
Decided On : AUGUST 06, 1954
The plaintiff, a mortgagee, filed a suit for principal and interest due under a mortgage. The defendant, the heir of the original mortgagor, denied the mortgage and claimed limitation. The trial court decreed the suit in part, holding that the amount due to the plaintiff was Rs. 5,000/- and a preliminary mortgage decree for sale was passed. The plaintiff appealed, contending that the learned Judge should have decreed the suit in full with all costs and not for a part only of the claim and costs. The defendant filed a cross-objection.
Fact of the Case:
The plaintiff, a mortgagee, filed a suit for principal and interest due under a mortgage. The defendant, the heir of the original mortgagor, denied the mortgage and claimed limitation. The trial court decreed the suit in part, holding that the amount due to the plaintiff was Rs. 5,000/- and a preliminary mortgage decree for sale was passed. The plaintiff appealed, contending that the learned Judge should have decreed the suit in full with all costs and not for a part only of the claim and costs. The defendant filed a cross-objection.
Finding of the Court:
The court held that the plaintiff was entitled to recover only the sums of Rs. 55,000/- and Rs. 2500/- as they were saved from the bar of time by acknowledgments.
Issues: 1. Whether there was an agreement between the plaintiff and the mortgagor that the deposit of title deeds would cover advances already made and to be made in future? 2. Whether the mortgage money becomes due on demand? 3. Whether the intention of the parties as to the time of payment should be gathered from the circumstances?
Ratio Decidendi: 1. The court held that there was no such agreement as pleaded in para 2 of the plaint and that demand was not a term of the contract, hence time runs from the date of each loan. 2. The court held that if no time is fixed, the money becomes due on the date of the mortgage and the limitation under Article 132 would run from the said date. 3. The court held that the surrounding circumstances of the case make the meaning of the words "as you are interested" and "why not take up the whole" clear and there is an admission of an existing mortgage debt.
Final Decision: The court allowed the appeal in part, setting aside the judgment and decree of the court below in so far as it relates to the advance of Rs. 55,000/-. The court held that the principal amounts due to the plaintiff are Rs. 55,000/- and Rs. 2500/- and the rate of interest payable therein is 8 per cent simple, the total amount payable being subject to the maximum allowable under the Money Lenders Act. The court also held that the cross-objection filed by the respondent has no merit.
( 1 ) THIS is an appeal against a decree passed by S. N. Banerjee J. declaring that the amount due to the plaintiff under the mortgage mentioned in the plaint in the suit for principal and interest is Rs. 5,000/- and a preliminary mortgage decree for sale and for costs, except costs of hearing after the amendment of the plaint. The plaintiff is the appellant before us and his contention in this appeal is that the learned Judge should have decreed the suit in full with all costs and not for a part only of the claim and costs. The respondents Nos. 1 (a) and 1 (b) are the heirs of John Carapiet Galstaun, since deceased who was the original defendant in the suit.
( 2 ) THE case of the plaintiff as made in his original plaint as filed was as follows: The plain tiff is the mortgagee of properties belonging to the said John Carapiet Galstaun. The properties mortgaged were (a) premises No. 24 Amratolla Lane, Calcutta, (b) premises No. 96 Karaya Road, Calcutta, (c) premises No. 167/1 and 167/5 Dhurrumtolla Street (Chandni bazar) Calcutta. The mort gages were created by deposit of title deeds made in September 1926. It was agreed by and between the plaintiff and the said Mr. Galstaun that the deposit of title deeds in respect of all the said properties would cover advances already made and to be made thereafter by the plaintiff and interest due thereon. The monies lent and advanced and secured by the mortgages as aforesaid were as follows:
. Rs . 02-08-28 25,000 31-08-26 1,00,000 10-09-26 20,000 10-09-28 35,000 30-10-26 15,000 01-11-26 25,000 27-11-31 2,500
The said John Carapiet Galstaun agreed to pay interest at 9 p. c. per annum on the amounts lent and advanced as aforesaid. Prom time to time the said Mr. Galstaun paid to the plaintiff towards the monies so lent and advanced and interest due thereon the total sum of Rs. 30,000/ -. The total amount due to the plaintiff including interest at 8 p. c. per annum on the monies lent as aforesaid was Rs. 4,64,213-5-8 and the plaintiff claimed a decree for the said sum and a preliminary mortgage decree in accordance with Order 34, Rule 4 Civil P. C. , and for other incidental reliefs.
( 3 ) THE case made by the said John Carapiet Galstaun in his written statement filed in this suit was one of total denial. He inter alia denied delivery of documents of title or that the said properties were mortgaged or that there was any agreement that the said deposit would cover advances made or to be made. The said Mr. Galstaun in his written statement further stated that the premises No. 167/5 Dhurrumtolla Street was sold to Khan Bahadoor Shapoor Fredoom Mazda and the premises No. 24 Amratolla Lane was sold by him long ago.
( 4 ) BY an order made on 23-3-1944 the said Khan Bahadoor Shapoor Fredoom Mazda (Respondent No. 2) was added as a defendant in the suit and necessary amendments were made in the cause title and in the body of the plaint. By another order dated 9-1-1945 Hasan Ayoob (Respondent No. 3), the purchaser of the premises No. 24 Amratolla Lane, Calcutta, was added as a defendant in the suit and necessary amendments were also made in the cause title and in the body of the plaint. The added defendants filed their respective written statements and the defence taken in their written statements is more or less the same as that of the defendant John Carapiet Galstaun. The only additional plea which was specifically taken by the said added defendants was the plea of limitation.
( 5 ) BEFORE the suit came on for hearing the defendant John Carapiet Galstaun died and by an order dated 16-3-1949, the respondents (1), (1a) and (1b) as his sons, were substituted in his place as his heirs and legal representatives. On 16-3-1950 the hearing commenced before S. N. Banerjee, J. The plaintiff gave evidence and Mario Galstaun the youngest son of John Carapiet Galstaun and one of the substituted defendants also gave evidence. It is unfortunate that no issue was framed. T
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