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High Court Of Delhi
KAMPA WATI DEVI - Appellant
Versus
BASANT RAI - Respondent
REGULAR FIRST APPEAL 112D of 1960
Decided On : 09/13/1967
MORTGAGE - Mortgage Deed - Consideration - Interest - Calculation - Remand.
Fact of the Case:
Plaintiffs, mortgagees, filed a suit against the defendant, mortgagor, for the realization of the mortgage debt and sale of the mortgaged property. The defendant denied the mortgage and claimed that the consideration for the mortgage was only Rs. 8,000 instead of Rs. 15,000 as stated in the mortgage deed. The defendant also claimed that the interest chargeable was 7% per annum instead of 1% per month as stated in the mortgage deed.
Finding of the Court:
The trial court found that the mortgage was valid and that the consideration for the mortgage was Rs. 15,000. The trial court also found that the interest chargeable was 1% per month as stated in the mortgage deed. The trial court granted the plaintiffs a decree for Rs. 19,400 with interest at the rate of 6% per annum on Rs. 15,000 from the date of the preliminary decree to the date of payment.
Issues: 1. Whether the defendant mortgaged the plot of land on which the building in dispute is constructed? 2. Whether the consideration for the mortgage was only Rs. 8,000/? 3. Whether the defendant made payments (a) of Rs. 7,000/ (b) Rs. 6.470/- on the footing of the mortgage with the plaintiff and on what dates? 4. Whether the defendant executed the mortgage deed on the following representations;- (a) that the mortgage money to be paid by the defendant was to be only Rs. 8,000.00 though formally shown as Rs. 15.000.00 in the mortgage deed? (b) that the interest chargeable was to be 7 per cent per annum and whether this fact is proveable by the defendant ? If so, what is its effect ? 5. What is the amount of the mortgage money and intent thereon payable by the defendant to the plaintiff ? 6. Whether the plaintiff is a money-lender and as such not entitled to maintain this suit as constituted without proper licence under the Money Lenders Act. 7. Relief.
Ratio Decidendi: 1. The court held that the defendant had failed to prove that the mortgage was not valid or that the consideration for the mortgage was only Rs. 8,000. 2. The court held that the defendant had failed to prove that the interest chargeable was 7% per annum. 3. The court held that the plaintiffs were not money-lenders and were entitled to maintain the suit.
Final Decision: The court allowed the appeals, set aside the judgments and decrees of the court below, and remitted the case back to the lower court for passing a preliminary decree in accordance with law and in the light of the observations made above. The court also directed the appellant to pay two-thirds costs of the appeal to the respondents.
( 1 ) THESE two appeals (Regular First Appeals Nos 112-D and 121 Dot 1960) on behalf of the defendant are directed against the preliminary and final decrees made in the suit brought by the plaintiff mortgages for the relisation of the mortgage debt and sale of the mortgaged property.
( 2 ) THE mortgage of the property in question consisting of single storeyed five shops and rooms together with some building under construction was effected by means of a registered document (Exhibit P. 1) dated 5th February, 1951 executed by Smt. Kampla Vati Devi, defendant-appellant in favour of Lala Basant Rai son of Shri Sardari Lal and Shri Padam Chand son of L. Kidar Nath, the document having been registered on the same day. This deed was witnessed by L. Jogi Dass husband of Smt. Kampla Vati Devi and also by L. Suraj Bhan, lather of the mortgagor. At the time of registration of the mortgage deed also, L. Jogi Dass and L. Suraj Bhan were present, and indated they identified her before the Sub-Registrar, Shri S. N. Pandit. These two gentlemen were identified by one Hari Singh, son of Sbri Sardara Singh, who was personally known to the Sub Registrar. According to the endorsement made on the mortgage-deed, the mortgagor, Smt. Kampla Vati Devi, bad admitted the execution of the document after hearing and understanding its contents. The entire mortgage money of Rs. 15. 000. 00 was paid in the presence of the Sab Registrar in the following manner.
( 3 ) CURRENCY notes worth Rs 8,000/ , out of which Rs 5. 000/ were paid by Shri Padam Chand and Rs. 3. 000. 00 by Sbri Basant Rai and a cheque for Rs. 7,000/ issued by Gian Chand, partner of the firm. Tannu Lal Sardari Mal in favour of Basant Rai was endorsed in favour of the mortgagor. According to the terms of this document, the mortgage was initially intended to be for a period of two years and Shri Basant Rai was stated to have paid a sum of Rs. 10. 000. 00 and Shri Padam Chand Rs. 5. 000. 00. Interest was payable at the rate of Re. 1. 00 per cent per month and in the event of failure to pay interest for three months, it was to be payable at the rate of Rs. 1/4. 00 per cent par month. Principal and interest were payable by the mortgagor to Shri Basant Rai and Padam Chand according to their contributions which was 10. 000. 00 payable by Basant Rai and Rs. 5,000. 00 by Padam Chand
( 4 ) IN the written statement a preliminary objection was raised to the effect that plot No. 147. 148. E block, ward No. 12, Kamla Nagar, Delhi, which was the subject matter of the alleged mortage, belonged to the erstwhile Municipal Committee, Delhi, since succeeded by the Delhi Municipal Corporation and that the defendant had only entered into an agreement of sale with the said Municipal Cemmittee, with the result that the Delhi Municipal Corporation was a necessary party, but this objection is no longer being pressed by the defendant-appelant. On the merits, it was denied that the plaintiffs were the mortgages of the plot referred to in the plaint because no sale-deed relating thereto had been executed by the owner in favour of the defendant, with the result that the defendant had no right to create any mortgage on that property. The receipt of consideration to the extent of Rs. 15. 000/ was also denied. Receipt of Rs. 8. 000. 00 was, however, admitted. According to the defendant s version, in 1951, she was in need of money and with the object of taking some loan, approached Basant Rai, plaintiff No, 1, through her husband. Basant Raj examined the documents relating to the plot which she had agreed to purchase from the Municipal Committee, Delhi, but finding that though the defendant had paid Rs. 16,000. 00 to Bishan Sarup and Mst. Pista Devi after the transfer of their rights under the agreement of sale in respect of the plot in question and though she had also paid Rs. 8,000. 00 on account of the cost of the structures, the Municipal Committee. Delhi had not yet executed any sale
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