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Hardial and ors. Vs. Pirthi Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.518
AppellantHardial and ors.
RespondentPirthi Singh
Excerpt:
transfer of property act (iv of 1882), section 83 - deposit by mortgagor--money received by mortgagee under protest--right to recover balance reserved--mortgage deed returned to mortgagee--fall discharge--interest. - - the order of the court was that the amount deposited be endorsed on the mortgage deed and that the mortgage deed be returned to the mortgagee. we are not satisfied that rs......16th of december, 1886. the amount secured by the mortgage was rs. 1,300. it was stipulated in the mortgage deed that interest would be paid half-yearly at the rate of 15 per cent, per annum, and that in the event of interest not being paid every half-year, compound interest should be charged at the same rate. the defendants nos. 1 and 2 are the mortgagars. the defendants nos. 3, 4 and 5 are the sons and grandson of the mortgagors. the other defendants are purchasers of a part of the mortgaged property. it was alleged on behalf of the defendants that a sum of rs. 600 had been paid in addition to the amount which the plaintiff admitted having received. it was also urged that the mortgage had been discharged in full, inasmuch as the mortgagee had received a sum of rs. 2,725, which was.....
Judgment:

1. This appeal arises out of a suit for sale upon a mortgage executed by the first two defendants in favour of the plaintiff on the 16th of December, 1886. The amount secured by the mortgage was Rs. 1,300. It was stipulated in the mortgage deed that interest would be paid half-yearly at the rate of 15 per cent, per annum, and that in the event of interest not being paid every half-year, compound interest should be charged at the same rate. The defendants Nos. 1 and 2 are the mortgagars. The defendants Nos. 3, 4 and 5 are the sons and grandson of the mortgagors. The other defendants are purchasers of a part of the mortgaged property. It was alleged on behalf of the defendants that a sum of Rs. 600 had been paid in addition to the amount which the plaintiff admitted having received. It was also urged that the mortgage had been discharged in full, inasmuch as the mortgagee had received a sum of Rs. 2,725, which was deposited by the purchaser under Section 83 of the Transfer of Property Act.

2. The Court below has overruled these objections and has decreed the claim in full.

3. The defendants have preferred this appeal and the first contention raised before us, by their learned Counsel, is that the mortgagee must be deemed to have received the Rs. 2,725, deposited by the purchaser under; Section 83 of the Transfer of Property Act, in full discharge of the mortgage. The circumstances under which the amount was received by the mortgagee are set forth in the proceedings of the Court, dated the 14th of September, 1895. It appears that the mortgagee refused to accept the amount deposited in full satisfaction of the mortgage, and alleged that a much larger sum was due. Thereupon, the pleader for the purchaser, who deposited the mortgage money, stated that the amount deposited might be paid to the mortgagee and that for the balance, if any, the mortgagee might seek his remedy. in Court. It was upon these terms that the; mortgagee received the money. Therefore, it cannot be said that he took it in full discharge of the mortgage, as mentioned in the second paragraph of Section 83 of the Transfer of Property Act. The order of the Court was that the amount deposited be endorsed on the mortgage deed and that the mortgage deed be returned to the mortgagee.

4. It is next urged that interest on the principal should not be charged after the date of the deposit of Rs. 2,725 mentioned above. This contention has no force. If the amount due on the mortgage on the date of the deposit exceeded the amount of the deposit, interest was chargeable on the excess amount. In this case the full amount of the mortgage was due as the account shows. The mortgagee was, therefore, entitled to interest on the said amount in accordance with the terms of the mortgage deed.

5. Another contention on behalf of the appellants is that it has been proved by the evidence that a sum of Rs. 600 was paid by: the mortgagors to the mortgagee, shortly after the execution of the mortgage. The evidence consists of the statements of one of the mortgagors and of a single witness. This witness was disbelieved by the Court below and we see no reason to come to a different conclusion as to his credibility. No receipt was taken and, no endorsement of payment was obtained on the mortgage deed. We are not satisfied that Rs. 600 was paid as alleged. The only other contention, on behalf of the appellants, is that the stipulation to pay compound interest must be deemed to be a' penalty. We are unable to accede to this contention which, in our opinion, is wholly untenable.

6. These are the points raised in this appeal and we are of opinion that none of them has any force. We, accordingly, dismiss the appeal with costs including fees on the higher scale. We extend the time for payment of the mortgage money for a period of six months from this date.


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