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Gulabchand Motilal Marwadi Vs. Mahadu Narayan Teli - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 15 of 1937
Judge
Reported inAIR1939Bom388; (1939)41BOMLR823
AppellantGulabchand Motilal Marwadi
RespondentMahadu Narayan Teli
DispositionAppeal dismissed
Excerpt:
.....determination of.;in a suit filed by an agriculturist under section 15d, clause (1), of the dekkhan agriculturists' relief act, 1879, accounts must be taken in, accordance with the provisions of sections 12 and 13 of the act, as it the suit was by a mortgagee. it is open to the court to go behind the mortgage transaction and see how its consideration was made up. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before..........agriculturist for an account of a mortgage of june 30, 1924, under section 15d, clause (1), of the dekkhan agriculturists' relief act, 1879. the plaintiff had mortgaged his land to the defendant's father for rs. 1,225. the trial court held that the consideration of the mortgage was rs. 177-13-0, and after taking an account it declared that on the date of the suit rs. 177-13-0 were due as principal and rs. 162-0-9 as interest. in appeal the learned district judge varied the decree and held that rs. 315-2-3 were due as principal and rs. 290-7-6 as interest.2. the defendant has preferred this appeal, and it is contended on, his behalf that the lower courts were not right in going into the question of the consideration of the mortgage deed in suit when the plaintiff' had merely asked for an.....
Judgment:

Lokur, J.

1. This appeal arises out of a suit filed by an agriculturist for an account of a mortgage of June 30, 1924, under Section 15D, Clause (1), of the Dekkhan Agriculturists' Relief Act, 1879. The plaintiff had mortgaged his land to the defendant's father for Rs. 1,225. The trial Court held that the consideration of the mortgage was Rs. 177-13-0, and after taking an account it declared that on the date of the suit Rs. 177-13-0 were due as principal and Rs. 162-0-9 as interest. In appeal the learned District Judge varied the decree and held that Rs. 315-2-3 were due as principal and Rs. 290-7-6 as interest.

2. The defendant has preferred this appeal, and it is contended on, his behalf that the lower Courts were not right in going into the question of the consideration of the mortgage deed in suit when the plaintiff' had merely asked for an account under Section 15-D of the Dekkhan Agriculturists' Relief Act. It is urged on his behalf that accounts should be opened between the parties from the commencement of the transactions under Section 13 only when the Court is to inquire into the history and merits of the case under Section 12 of the Dekkhan Agriculturists' Relief Act, and that Section 12 applies only to a suit described in Section 3, Clauses (w), (y) and (z), but not to a suit under Section 3, Clause (a). This argument is apparently sound, but Section 15D, Clause (2), specifically provides that when a suit is brought under Clause (1) of that section, 'the amount (if any) remaining unpaid shall be determined under the same rules as would be applicable under this Act if the mortgagee had sued for the recovery of the debt.' In other words, in determining the amount due under a mortgage in a suit filed by an agriculturist under Section 15D, Clause (1), accounts should be taken as if it were a suit by a mortgagee. A suit by a mortgagee to recover the amount due falls under Clause (y) of Section 3, and such a suit is governed by Sections 12 and 13 of the Act. It follows, therefore, that in every suit under Section 15D of the Dekkhan Agriculturists' Relief Act accounts have to be taken in accordance with the provisions of Sections 12 and 13 of the Act.

3. It is further argued that it was not open to the lower Courts to go into the history of the different transactions which led up to the mortgage deed in suit. It appears that the consideration of the mortgage deed in suit included the consideration of an earlier mortgage deed for Rs. 325 passed on July 5, 1916, and it is urged that it was not open to the lower Courts to go behind that mortgage deed and see how its consideration was made up. This argument cannot stand, once it is held that accounts have to be taken under Sections 12 and 13 of the Dekkhan Agriculturists' Relief Act. Section 13 provides that accounts between the parties are to be opened from the commencement of the transactions, and for that purpose the previous dealings have to be considered and the real consideration of the transaction in suit has to be determined. This procedure has been followed by both the lower Courts, and I see no reason to interfere with the findings of fact recorded after accounts were taken under Sections 12 and 13 of the Dekkhan Agriculturists' Relief Act. The appeal is, therefore, dismissed with costs.


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