S.K. Ray, J.
1. This appeal is by the defendant from the reversing decision of the lower appellate Court in a suit for redemption.
2. Ac. 1.06 of land situated in Mauza Parbatipur was usufructuarily mortgaged by the plaintiff to the defendant as security for the loan of RS. 800/-advanced by the defendant to the plaintiff. Thus transaction was embodied in a registered mortgage deed dated 1-3-1966. Possession also was delivered to the defendant that very day. This deed contained the stipulation that except in the month of Chaitra of the current year, the mortgagor shall repay the principal amount (Rs. 800/-) and thereupon the mortgagee shall release the mortgaged land and deliver khas possession thereof to the mortgagor. These facts are not in controversy.
The plaintiff deposited Rs. 800/- towards the principal money under the mortgage in the Court on 4-4-1967 under Section 83 of the Transfer of Property Act to the account of the defendant mortgagee. The notice issued from the court in pursuance of this deposit under Section 83 was served on the defendant-appellant on 25-5-1967. Despite receipt of such notice, the defendant-mortgagee did not withdraw the amount nor did he relinquish possession of the mortgaged property to the plaintiff. The plaintiff on the aforesaid allegations filed the present suit for redemption.
The plaintiff also averred in his plaint that before making the deposit under Section 83 of the Transfer of Property Act, he had offered the principal amount to the defendant on 31-3-1967, and since he refused to accept the money, he was compelled to make the deposit as aforesaid. This part of the story has not been believed by either of the courts below and will not be referred to any further.
The plaintiff claimed that the defendant was accountable for the usufructs received by him from the mortgaged land for the years in his occupation till the date of suit. According to him, the usufructs received by him would be valued at Rs. 1,800/-. The defendant is entitled to his principal sum of Rs. 800/- plus interest at 9 per cent per annum on such principal sum from 1-3-1966 till 21-5-1967 amounting to Rs. 88/-. By adjusting this sum of Rs. 888/- against the value of the usufructs received by the mortgagee, the net amount payable by the latter is Rs. 912. The plaintiff has relinquished his claim in regard to Rs. 112 and has claimed recovery of Rs. 800 from the defendant in addition to his main relief of redemption.
3. The defence plea was threefold. The first contention was that the defendant is not liable to account under Section 77 of the Transfer of Property Act, inasmuch as there was a stipulation in the mortgage deed that the usufruct of the mortgaged land would be appropriated towards interest due on the principal sum advanced. The second contention was that the plaintiff was not entitled to the benefit of Section 9 of the Orissa Money Lenders Act. The third plea was that in view of the stipulation in the mortgage deed, extracted above, the accruing of interest does not cease from the date of deposit under Section 83 of the Transfer of Property Act be-cause such deposit was not a valid one. In elaboration of this plea, it is argued. that under the contract embodied in the mortgage deed, the plaintiff having defaulted to tender the principal money during Chaitra of 1967, the defendant was entitled to continue to be in possession till the next Chaitra, i.e., Chaitra of the year 1968. By the time the notice of deposit was received by the defendant, the month of Chaitra of 1967 was already over. In that view the defendant was entitled to interest and, as such interest had not been deposited along with the principal sum of Rs. 800 there was no valid deposit.
4. The trial court held that there was no valid deposit under Section 83 of the Transfer of Property Act and, therefore, accruing of interest does not cease from the date of deposit. Since the loan amount was not tendered within the time stipulated in the contract, the mortgagee was entitled to remain in possession till Chaitra of 1968. The plaintiff accordingly is not entitled to claim any mesne profits. The trial court also upheld the defendant's contention that usufructs of the mortgaged property for each year would be adjusted towards interest due on the principal loan for that year. It, therefore, decreed the suit partly directing the plaintiff to pay the principal amount of Rs. 800 within two months of the passing of its decision and on such deposit, the defendant was directed to deliver all documents in his possession or power relating to the mortgaged property and to re-deliver physical possession of the suit land to the plaintiff, failing which, the defendant would be at liberty to apply for final decree for realisation of the dues from the sale proceeds of the mortgaged property. The other prayer of the plaintiff was disallowed.
5. The lower appellate court held that there was a valid deposit under Section 83 of the Transfer of Property Act and the defendant, therefore, was entitled to interest till 25-5-1967 (which is erroneously stated in its judgment as 21-5-67) when notice of deposit was served on him and not thereafter. It also held that the defendant is liable to render accounts for the mesne profits received by him by reason of Section 9 of the Orissa Money Lenders Act and that any interest realised in excess of 9 per cent per annum would be debited towards redemption or discharge of the principal amount or the mortgage money. On going into the accounts rendered by the parties in the evidence, the lower appellate court held that the defendant was entitled to realise Rs. 800 from the plaintiff towards principal and interest. The lower appellate court came to the finding that the value of the usufructs received by the defendant in course of his two years' possession would be Rs. 1.500. Thus, deducting the claim of the defendant to the tune of Rs. 888, it passed a decree for Rs. 612 in favour of the plaintiff against the defendant. The final order of the lower appellate court was in the following words :--
'The appeal is allowed on contest against the respondent. The plaintiff's suit for redemption is allowed. It is declared that the entire mortgage loan has been liquidated as the defendant, in all, has realised Rs. 1,500 from out of the usufructs of the suit land. It is further declared that the defendant is entitled to Rs. 800 towards the principal and the interest of the mortgage loan. Hence, it is ordered that the defendant do deliver back the suit land and pay Rs. 612 to the plaintiff towards the mesne profits realised by him............'
6. The first contention of Mr. Das for the appellant is that the defendant is not liable to render accounts in view of Section 77 of the Transfer of Property Act, which provides:--
'Nothing in Section, 76, Clauses (b), (d), (g) and (h) applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the denned portions of the principal.'
The position envisaged by this section, extracted above, no longer holds good in view of Section 9 of the Orissa Money Lenders Act, which provides:--
'Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract, no Court shall in any suit......... in respect of a loan advanced after the commencement of this Act, pass a decree for interest at rates exceeding 9 per centum simple per annum in the case of a secured loan.........'
This Section 9 came into force on 1-7-1939. On a plain reading of the two sections, it is clear that Section 77 of the Transfer of Property Act must give way to Section 9 of the Orissa Money Lenders Act and that the defendant will still remain liable to render accounts for the purpose of scaling down any interest realised by him out of the usufructs of the land in excess of 9 per cent per annum.
This court in the case of Smt. Padmabati Devi v. Bhagabat Charan (1967) 33 Cut LT 919, has held that Section 9 of the Orissa Money Lenders Act has full application to usufructuary mortgages, the mortgagee is liable to account, a suit for account is maintainable and receipts of usufructs in excess of the rate of interest at 9 per cent per annum provided in Section 9 of the said Act must be debited against the mortgagee in redemption of the amount of the principal. This contention, therefore, must fail.
7. The second contention is that the mortgage in suit being a possessory one, Section 17 of the Orissa Money Lenders Act debars the plaintiff from maintaining his suit for redemption before expiry of 15 years. The equity of redemption vests in the mortgagor and no clog has been put on such right of redemption either in Section 17 of the Orissa Money Lenders Act or in any other statute before expiry of 15 years from the date of mortgage. It is open to the mortgagor to redeem the mortgage even before expiry of fifteen years and it is also open in such redemption suit to ask for accounts and to recover such receipts which are found to have exceeded the rate of interest lawfully payable under Section 9 of the Orissa Money Lenders Act.
It has been held in the decision of this Court referred to above,
'Section 17 (Orissa Money Lenders Act) cannot, however, stand in the way of mortgagor to redeem the mortgage before expiry of fifteen years. The equity of redemption vests in the mortgagor. No clog has been put on the right to redeem in any statute before the expiry of fifteen years. If such a right is exercised within fifteen years, it is open to the mortgagor to ask for accounts and to recover the excess amount found on accounting. Section 17 is a beneficial provision in favour of the mortgagor.........'
This point also, in my opinion, has no substance.
8. The next contention is that the deposit under Section 83 of the Transfer of Property Act is not a valid one. Section 83 of the Transfer of Property Act, as far as relevant, runs as follows:--
'At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit to the account of the mortgagee, the amount remaining due on the mortgage.
The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition verified in manner prescribed by law for the verification of plaints stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage deed, and all such other documents, so deposited shall be delivered to the mortgagor or such other person as aforesaid.
The power to deposit in Court in this section arises at any time after the principal money payable in respect of any mortgage has become due and before the suit for redemption is barred. The mortgage was entered into on 1-3-1966, and according to the stipulation contained in the mortgage deed, the principal money became payable in Chaitra of 1967. The month of Chaitra corresponds to 13-3-1967 to 14-4-1967. The mortgagor deposited the mortgage amount on 4-4-1967. Therefore, it cannot be said that the deposit was made prematurely. The trial court has found that the mortgagee received Rs. 150 per annum from paddy yield alone apart from receipts on other accounts. Even by the date of receipt of the notice of deposit, the amount of interest accrued due on the principal sum was Rs. 88 only. As is well known, paddy for 1966 must have been harvested before end of that year and, therefore, the defendant must be deemed to have received at least Rs. 150 from paddy alone. Thus, by the date of deposit, no interest was due on the principal amount. Thus, it cannot be said that the mortgagor defaulted to deposit any amount towards interest which was still outstanding. The deposit, in my opinion cannot be said to be invalid, all the legal requirements having been complied with.
9. The next point is to find out as to the point of time from which interest shall cease to accrue. For this purpose, Section 84 of the Transfer of Property Act is relevant. This section, so far as is relevant for the present purpose, runs as follows:--
'When the mortgagor or such other person as aforesaid has tendered or deposited in Court under Section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or in the case of a deposit, where no previous tender of such amount has been made, as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of Court and the notice required by Section 83 has been served on the mortgagee:
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The two of the paragraphs of this section have been omitted as unnecessary. As already indicated, nothing being due on account of interest, on the date of deposit, the mortgagor cannot be said to have defaulted to have done all that has to be done by him to enable the mortgagee to take such amount out of Court. Notice of deposit in Court has been taken out on the mortgagee and received by him on 25-5-1967. Therefore, interest shall cease to run with effect from that date. The effect of such cessation of interest is that the mortgagee is liable to pay back all the receipts from the mortgaged property minus any reasonable expenses for cultivation which he might have incurred in that behalf during the period of his possession commencing from 25-5-67 onwards. The lower appellate court was, therefore, justified in holding that interest ceased to run with effect from 25-5-1967.
10. The lower appellate court has found that a sum of Rs. 1,500 is payable by the defendant to the plaintiff towards the usufructs received by him in excess of the rate of interest for the first year and as mesne profits for the year subsequent to 25-5-67. That finding was not challenged as contrary to evidence on record and has to be accepted. The lower appellate court was, therefore, right in calculating, upon taking an account between the parties, that a sum of Rs. 612 was payable by the defendant to the plaintiff. In directing Rs. 612 to be paid by the defendant, the lower appellate court has totally forgotten the amount of Rs. 800 already in deposit under Section 83 of the Transfer of Property Act. That amount in deposit is payable to the defendant. The defendant is entitled to withdraw the same in accordance with Section 83 of the Transfer of Property Act and the lower appellate court should not have deducted a sum of Rs. 800 from the amount of mesne profits determined by it. Such deduction would amount to paying the sum of Rs. 800 twice over. He is, therefore, liable to pay an amount of Rs. 1,412 in cash, to the plaintiff.
11. In modification of the decision of the lower appellate court, I would order that the defendant is to deliver back possession of the suit land and pay a sum of Rs. 1,412 (one thousand four hundred and twelve) to the plaintiff towards the mesne profits realised by him. The defendant is entitled to withdraw the sum of Rs. 800 already in deposit in Court. With this modification, the decision of the court below is upheld. The appeal is accordingly dismissed. In the circumstances of the case, there will be no order as to costs of this Court Appeal dismissed without costs.