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Juggannath Harilal Vs. Tulra Kera - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 1509
Judge
Reported in(1908)10BOMLR314
AppellantJuggannath Harilal
RespondentTulra Kera
DispositionAppeal allowed
Excerpt:
.....the defendants do give at the expense of the defendants 1 to 4 a good and effectual indemnity in respect of the loss of the title deed to indemnify the plaintiff his heirs and assigns his and their estate and effects and the mortgaged property from and against all loss costs charges damages and expenses and other consequences, which the plaintiff his heirs or assigns or the mortgage property shall or may incur sustain or become liable to 'for or by reason of or on account or in respect of the loss......heirs and assigns his and their estate and effects and the mortgaged property from and against all loss costs charges damages and expenses and other consequences, which the plaintiff his heirs or assigns or the mortgage property shall or may incur sustain or become liable to 'for or by reason of or on account or in respect of the loss.5. the plaintiff must pay the 5th defendant's costs of the suit, but not of the appeal as it was the issue raised by the 5th defendant that occasioned the necessity of this appeal. it was the unjustifiable position taken up by the first four defendants that necessitated the suit and therefore they must bear the plaintiffs costs of it including the costs he has to pay the 5th defendant.6. it was the issue raised by the 5th defendant that procured the.....
Judgment:

Lawrence Jenkins, C.J.

1. This is an appeal by the plaintiff from a decree dismissing his suit with costs on the ground that it is an interpleader suit, and so not maintainable.

2. In my opinion the learned Judge has been misled by the terms in which the suit evidently was describel before him, for to treat it as on y a suit of interpleader is to disregard paras (d) (e) and (g) of the prayor to the plaint. Those paras contain in substance a claim for redemption, and that in the circumstances is the appropriate remedy (cf. Vyvyan v. Vyvyan (1861) 4 De G. F.& J. 183. The dismissal of this suit might possibly result in the loss to the plaintiff of his right to reJeem and that no one could have intended.

3. The decree of the first Court must therefore be set aside. It is now conceded that the first four defendants have no such right as was claimed by them, and it is agreed that the principal and interest payable to the filth defendant up to the institution of the suit is iis. 2400-3-0 on the first mortgage and Rs. 10,000) on the second mortgage with interest at 6 per cent, on Rs. 1250 from the 20th February 1907. The only dispute is as to when interest should cease to run. I think in the special circumstances of this case that it did not cease on payment of the amount into Court, but on the other hand I hold it should not run beyond the 7th of October 1907, the date of the decree under appeal, as it was the 5th defendant who raised the issue that this suit was not maintainable, and thus delayed payment of the mortgage money.

4. There must, therefore, be a decree declaring what on this basis is the amount duo, the figure to be settled by the Court if the parties cannot agree, and further declaring that the 5th defendant alone is entitled to receive the same, and then there will be the usual decree for redemption save that by consent the time for payment will be one month, and there must be a direction that the defendants do give at the expense of the defendants 1 to 4 a good and effectual indemnity in respect of the loss of the title deed to indemnify the plaintiff his heirs and assigns his and their estate and effects and the mortgaged property from and against all loss costs charges damages and expenses and other consequences, which the plaintiff his heirs or assigns or the mortgage property shall or may incur sustain or become liable to 'for or by reason of or on account or in respect of the loss.

5. The plaintiff must pay the 5th defendant's costs of the suit, but not of the appeal as it was the issue raised by the 5th defendant that occasioned the necessity of this appeal. It was the unjustifiable position taken up by the first four defendants that necessitated the suit and therefore they must bear the plaintiffs costs of it including the costs he has to pay the 5th defendant.

6. It was the issue raised by the 5th defendant that procured the dismissal of the suit and so brought about this appeal therefore |of the plaintiffs costs of this appeal must be borne by the 5th defendant and the other g will be borne by the other defendants.


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