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Parmeshwari Das Vs. Lachhman Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All824
AppellantParmeshwari Das
RespondentLachhman Prasad
Excerpt:
- - 5. the detail's of the account are clearly set out in paras......correctness: vide para. 13 of the written statement. on 1st july 1923, the defendant executed the sarkhat in suit for rs. 1,400 with interest at the rate of ten annas per cent per mensem.6. we have already noticed that there was no stipulation in the hypothecation bond, dated 19th june 1919, that if the plaintiff had to spend any amount in excess of rs. 2,000 the said amount would be recoverable by gradual payments made by the defendant in the course of ten years. the terms of the sarkhat in suit need not be reproduced. it contains an unconditional promise to pay and is unhampered by any limitation of time. the liability of defendant for this sum of rs. 1,400 is outside the mortgage contract. the sarkhat is an independent contract, complete in all its parts, and no portion of it can be.....
Judgment:

Sen, J.

1. This is an appeal by the plaintiff and arises out of a suit for recovery of Rs. 1,400 principal and Rs. 141 interest on a sarkhat executed by the defendant in plaintiff's favour on 1st July 1923. The suit was instituted on 1st July 1926. The defendant contested the suit chiefly upon the ground that the suit was premature, the claim being unenforceable for ten years, which had not expired. He also raised a few minor pleas which are not material to this appeal. The first Court repelled the defence and decreed the suit. The lower appellate Court held that the suit was premature and reversed the decree of the trial Court on this ground alone. The other pleas raised in the defendant's appeal have not been decided so far.

2. Lachhman Prasad defendant owned a house in mohalla Johntonganj in the city of Allahabad. This house was in a dilapidated condition. Under an indenture between the parties dated 19th June 1919 which was duly executed and registered, Lala Parmeshwari Das plaintiff agreed to rebuild the house in question upon the following terms:

(1) The house was to be constructed at an approximate outlay of Rs. 2,000. (2) Lala Parmeshwari Das plaintiff was to provide the funds. The interest agreed upon was ten annas per cent per mensem. (3) The house was to remain in the occupation of the plaintiff as a tenant for the period of ten years certain and the plaintiff was not liable to ejectment during this tenure unless upon the happening of certain contingencies. (4) The house was to stand hypothecated to Parmeshwari Das to secure the payment of Rs. 2,000 together with interest at the stipulated rate. (5) The rent agreed was Rs. 50 per mensem. Out of this sum, Lala Parmeshwari Das was to pay Rs. 20 to the defendant and appropriate to himself Rs. 30 in part payment of the principal and interest due on the hypothecation bond. (6) The money due to the plaintiff under this contract was payable gradually in ten years.

3. There are no indications in the document that the parties intended that if any sums in excess of Rs. 2,000 were spent by the plaintiff towards the construction of the house, the conditions agreed upon with reference to Rs. 2,000 should also attach to those sums. There was no stipulation in the document that such sums if spent were recoverable by gradual payments made by the defendant during ten years, No interest for such amounts was provided for in the document; nor was it provided therein that the house was to stand hypothecated in security for the amounts spent by the plaintiff in excess of Rs. 2,000.

4. The construction of the house lasted from 18th July 1919 to 4th July 1920. An account was taken on 1st July 1923, and it appeared that the plaintiff had spent Rs. 3,760-4-3 towards the construction of this house. Rs. 1,056-8-6 were due to him for interest. Credit was given to the defendant for Rs. 1,416-12-9. The balance due to the plaintiff was Rs. 3,400. Out of this sum Rs. 2,000 was secured to the plaintiff under the hypothecation bond, dated 19th June 1919. The defendant was 'liable to the plaintiff for the balance of Rs. 1,400 which was an unsecured debt.

5. The detail's of the account are clearly set out in paras. 3, 4 and 5 of the plaint. The defendant does not deny the correctness of these figures and indeed endorses their correctness: vide para. 13 of the written statement. On 1st July 1923, the defendant executed the sarkhat in suit for Rs. 1,400 with interest at the rate of ten annas per cent per mensem.

6. We have already noticed that there was no stipulation in the hypothecation bond, dated 19th June 1919, that if the plaintiff had to spend any amount in excess of Rs. 2,000 the said amount would be recoverable by gradual payments made by the defendant in the course of ten years. The terms of the sarkhat in suit need not be reproduced. It contains an unconditional promise to pay and is unhampered by any limitation of time. The liability of defendant for this sum of Rs. 1,400 is outside the mortgage contract. The sarkhat is an independent contract, complete in all its parts, and no portion of it can be supplemented by the terms of the mortgage contract. Where the terms of a contract have been reduced to the form of a document, no evidence of any oral agreement or statement was admissible as between the parties to such an instrument for the purpose of contradicting, varying, adding to or subtracting from its terms. This elementary rule of evidence has received statutory recognition in Section 92, Evidence Act. Where a suit had been instituted on a promissory note payable on demand and the defendant contended that it had been agreed between the parties that the plaintiff should not bring any suit to recover the amount until the happening of a certain contingency and that as such event had not happened the suit was premature, the contention was overruled and it was held that the defence put forward could not be entertained under Section 92, Evidence Act: Vishnu Bam Chandra v. Ganesh Krishna A.I.R. 1921 Bom. 449; Ramjiwan v. Aghorenath [1898] 25 Cal. 401. A similar view has been taken by this Court: In re Sreeram v. Sobha Ram Gopal Rai A.I.R. 1922 All. 213.

7. The lower appellate Court has gone off the rails completely in holding

that the sarkhat sued upon is an integral part of the agreement entered into between the parties in 1919.

8. There is nothing in the sarkhat to show that it is a part of the agreement of the year 1919. The agreement related to a debt of Rs. 2,000. This debt was a secured debt. It was payable in ten years. The sarkhat is for a sum distinct and apart from the agreement. It is an unsecured debt. It is unfettered by any condition as to the time or method of payment. No one disputes that Rs. 2,000 secured by the registered instrument was payable in ten years. The learned Judge of the Small Cause Court does not explain how that stipulation can be made to apply to the amount claimed. The judgment closes with the following observation:

The sarkhat sued upon is only an indication of the amount due by the defendant at a particular point of time. It is nothing else nor can it be construed otherwise.

9. Of course, the sarkhat indicates the amount of liability by the defendant to the plaintiff on 1st July 1923. But how does that fact justify the conclusion that the amount 'can only be realized from the defendant after the lapse of ten years?' We find it impossible to follow the reasoning of the learned Judge.

10. On a true construction of the document, we have come to the conclusion that the sarkhat is a self-contained contract and the plaintiff's right to enforce payment is not controlled by any condition as to the time of payment. The suit therefore is not premature. We allow the appeal, set aside the decree of the lower appellate Court and remand the case to that Court with directions to readmit the appeal under its original number and dispose it of according to law. The appellant is entitled to the costs of this appeal, including counsel's fee on the higher scale.


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