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Ram Sewak Kueri Vs. Ram Rup Teli and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All537
AppellantRam Sewak Kueri
RespondentRam Rup Teli and anr.
Excerpt:
.....tor se mumkin 'ho basabil nalish mubligh maskura bala asal mai sud wasul kar lewe. in the case of default of payment at the time fixed or on the discovery taking place within the stipulated period of any act of bad faith then the creditor would be entitled to recover his money, principal and interest in any way by filing a suit. 3. we consider that the act of bad faith which the parties had in contemplation was not the mere default in the payment of annual interest a person who fails to pay interest cannot in the usual sense of the words be said to be acting in bad faith. he is no doubt breaking a term of his contract but he is doing so either from negligence or from inability to pay, and it does not appear that there is any question of bad faith in his action. but we consider that..........words are used in that sense. we would translate the particular words as follows:in the case of default of payment at the time fixed or on the discovery taking place within the stipulated period of any act of bad faith then the creditor would be entitled to recover his money, principal and interest in any way by filing a suit.3. we consider that the act of bad faith which the parties had in contemplation was not the mere default in the payment of annual interest a person who fails to pay interest cannot in the usual sense of the words be said to be acting in bad faith. he is no doubt breaking a term of his contract but he is doing so either from negligence or from inability to pay, and it does not appear that there is any question of bad faith in his action. it was contended by the.....
Judgment:

Bennet, J.

1. This is a defendant's appeal against an order of remand by a lower appellate Court. The plaintiff brought a suit for sale on the basis of a mortgage bond executed on 12th May 1912 by Muneshwar, the father of the defendant in favour of Bihari Lal, the predecessor of the plaintiff for Rs. 400. This bond provided for interest at the rate of 14 annas per cent; per mensem, and it further provided that interest would be paid yearly. There was no stipulation in the bond for the payment of compound interest. The bond provided that the principal would be paid within five years. The defence which has been urged before us is that the bond is time barred because the period of limitation should run from the end of the first year, that is, 12th May 1913 when as is admitted, no interest was paid. The suit was not brought until 9th April 1929, and this is within a period of 12 years from the date when the principal money became due under the bond, that is, 12th May 1917. The question therefore in appeal turns solely on the construction of certain provisions which the defendant claims relate to the failure to pay annual interest. The provisions are as follows:

Dar surat wada khilafi ya andar wada kisi tarahki bad ahdi zahur pissir ho to dayan ko ikhtiyar hasal ho ga jis tor se mumkin 'ho basabil nalish mubligh maskura bala asal mai sud wasul kar lewe.

2. It is argued for the appellant that these words cover the default of the payment of interest. We consider that the use of such words for this purpose would be a very extraordinary use, and no authority is shown for the proposition that these words are used in that sense. We would translate the particular words as follows:

In the case of default of payment at the time fixed or on the discovery taking place within the stipulated period of any act of bad faith then the creditor would be entitled to recover his money, principal and interest in any way by filing a suit.

3. We consider that the act of bad faith which the parties had in contemplation was not the mere default in the payment of annual interest A person who fails to pay interest cannot in the usual sense of the words be said to be acting in bad faith. He is no doubt breaking a term of his contract but he is doing so either from negligence or from inability to pay, and it does not appear that there is any question of bad faith in his action. It was contended by the learned Counsel for the appellant that these words could not bear any other meaning. But we consider that under the circumstances of this case it is quite possible that they could bear another meaning, The property in question which was mortgaged consisted of a house and zamindari and in the deed there was a recital that this property (was free from all encumbrances, One act of bad faith which might become apparent during the period stipulated would be the fact that there had been some previous incumbrances which the mortgagor had concealed from the mortgagee. Another act of bad faith could be the destruction of the property by the mortgagor such as by burning intentionally this house. There is therefore a meaning which might be attached to those words and we consider that the meaning which the appellant desires to attach is a meaning which the words would not cover in their ordinary sense. Accordingly we hold that the meaning placed by the lower appellate Court on this condition in the mortgage is the correct meaning, There was therefore no default by the mortgagor which would entitle the mortgagee to realize the whole of the mortgage money within the period of five years. Limitation therefore dates from the expiry of the period of five years and the suit is within time. Accordingly we dismiss this appeal with costs.


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