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Srinivasa Naicker and ors. Vs. Govindasami Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 424 of 1961
Judge
Reported inAIR1964Mad201
ActsTransfer of property Act, 1882 - Sections 58 and 68(1)
AppellantSrinivasa Naicker and ors.
RespondentGovindasami Chettiar and ors.
Appellant AdvocateR. Sundaralingam, Adv.
Respondent AdvocateR. Gopalaswami Iyengar, Adv.
DispositionAppeal dismissed
Cases ReferredMathuradas v. Raja Narain Bahadur
Excerpt:
- .....the fact that he has not taken immediate steps to enforce possession of the property. the learned judge expressed it in the following form:'where a mortgagor is guilty of the breach' of the covenant to deliver possession, the mortgagee is entitled to fall back on the claim for interest whether it is described as interest or as damages for breach of the covenant to deliver possession.'the learned judge has also referred to the principle enunciated by tile privy council in mathuradas v. raja narain bahadur, ilr 19 all 39 (pc) in the form that if there was a breach of covenant of the mortgage, the claim for damages was unbarred, so long as the claim for the principal was enforceable.learned counsel for the appellant frankly concedes that on the strength of this decision of ramesam.....
Judgment:

Anantanarayanan, J.

1. The appellants are the defendants in a suit Instituted in the Court of the District Munsif of Tiruvayaru for recovery of sums due upon a mortgage. There were several defences to the suit, which do not now concern us in the form in which they were originally raised, out we may note that, in the first appeal the learned District Judge, Tanjore, confirmed the decree of the learned district Munsif in favour of the plaintiff and in doing so, formulated three points as arising for determination in the appeal. The first was about the truth of the agreement put forward by the defendants as a defence to the action, to the effect that the plaintiff should make a further advance of Rs. 1500 and that there should then be, superseding the contract between the parties, a fresh mortgage. On this point both the Courts below have field against the truth of the alleged agreement and this is really no longer in controversy. The second point was whether the plaintiff, who was not put in possession of the hypotheca as he should have been under the agreement according to the concurrent findings of the courts below, would be entitled to the interest claimed though no rate of interest as such was specified in the document of mortgage. The third point was in relation to the actual amount to which the plaintiff would' be entitled by way of Interest, having regard to certain facts of occupation by the plaintiff of a small portion of the hypothecs for a part of the time.

2. In second appeal, the main ground urged before me is that the Courts below were in error in decreeing interest at all, when the document itself did not make any provision for interest, but only for redemption of the other amount of Rs. 1000. But learned counsel for we plaintiff-respondent relies upon the decision of Ramesam J. in Subramania Iyer v. Panchanada Odayar, : AIR1932Mad175 for the view that where a mortgage purports to be one with possession, out, as a matter of tact the mortgagor does not deliver possession, the mortgagee-plaintiff is entitled to get interest equated to damages notwithstanding the fact that he has not taken immediate steps to enforce possession of the property. The learned Judge expressed it in the following form:

'Where a mortgagor is guilty of the breach' of the covenant to deliver possession, the mortgagee is entitled to fall back on the claim for interest whether it is described as interest or as damages for breach of the covenant to deliver possession.'

The learned Judge has also referred to the principle enunciated by tile Privy Council in Mathuradas v. Raja Narain Bahadur, ILR 19 All 39 (PC) in the form that if there was a breach of covenant of the mortgage, the claim for damages was unbarred, so long as the claim for the principal was enforceable.

Learned counsel for the appellant frankly concedes that on the strength of this decision of Ramesam J. that I have just now referred to, the Courts below would be justified in awarding interest equated as damages for the breach of the covenant, on the facts of the particular case. No exception can be taken1 either to the period for which interest has been allowed, or the rate of interest. But the learned counsel urges that the correctness of the view of Ramesam J. in the case cited may be open to doubt, upon the principles applicable to the transactions of mortgage under the Transfer of Property Act. I am unable to find any valid reason for expressing any dissent from the view advanced by Ramesam J. in : AIR1932Mad175 , and, with respect, I adopt the reasoning of the learned Judge, it follows that the courts below were justified both in decreeing interest for the period and at the rate decreed, and also in embodying this as part of a charge upon the property. The second appeal fails and is dismissed with costs. No leave.


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