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Murugesan Pillai and anr. Vs. Jokki Venkatachalapathi Iyer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1963)1MLJ62
AppellantMurugesan Pillai and anr.
RespondentJokki Venkatachalapathi Iyer
Cases ReferredDamodara v. Chandappa Pujari
Excerpt:
- .....document contained a covenant to pay. we are therefore in agreement with veeraswami, j., that the suit document contains a personal covenant, on which a suit can properly be laid for sale of the mortgaged property.2. the next question argued was about the applicability of section 9-a of the act iv of 1938. the suit, as stated already, was one for sale. it has been held by a series of decisions of this court that the provisions of section 9-a of act iv of 1938 cannot be invoked by the defendant in a suit for sale. his proper remedy would be to file a suit for redemption of the mortgage. it is unnecessary to refer to all the decisions on the subject. in an unreported judgment in a.s. no. 462 of 1950, a bench of this court has held that it is not open to a mortgagor in a suit for sale to.....
Judgment:

1. In this appeal which is directed against a preliminary decree on a mortgage, one of the two questions argued is whether the mortgage document imports a personal covenant, on the basis of which a suit for sale could be sustained. Mr. D. Ramaswami Ayyangar, appearing for appellant, (the defendant in the suit) contends that there is no personal covenant in the mortgage document, which purports to be a mortgage with possession, and that therefore the suit which was instituted for sale of the mortgaged property cannot be sustained. We cannot, however, agree with the learned Counsel on the construction of the document. The relevant clause in the document runs thus:

On the expiry of the stipulated period on 30th June, 1952, you shall receive from me the afore' said usufructuary mortgage amount and cancel this deed after crediting the same and hand it over to me together with the other title deeds and also deliver possession of the land. If the usufructuary mortgage amount has not been paid by me in that manner on the due date and after that on the 30th June, of whichever year in which whether you demanded the amount or I pay, you receive from me the said othi amount of Rs. 1,500 by way of principal and deliver possession of the land as mentioned above.

It is admitted that the period originally fixed under the mortgage had expired by the time the suit was brought. The latter clause alone will therefore apply to the present case. That provides that, if there is a demand by the mortgagee, on the 30th June of whichever year, the mortgagor shall pay the amount and get back the property. That, undoubtedly, implies a right to demand on the part of the mortgagee. Therefore, the documents can be said to contain a personal covenant. In Kangayya Gurukal v. Kalimuthu Achavi (1903) 14 M.L.J. 61 : I.L.R. 37 Mad. 526, the mortgage document contained the clause

thereafter on (naming a date) on payment (the amount advanced), we shall redeem our land. If on the date so fixed the amount be not paid and the land recovered back, in whatever year we may pay (the amount advanced) on (naming the date) of any year, then you shall deliver back our lands to us.

A Full Bench of this Court held that this contained a promise by the mortgagor to pay on the date named. But, in the present case, the clause is more specific. It implies a right on the part of the mortgagee to demand the mortgage money. Learned Counsel for the appellant referred, to the decision in Damodara v. Chandappa Pujari : AIR1933Mad613 . There was no provision. in that case. like the one before us and it was held that the mortgage document contained a covenant to pay. We are therefore in agreement with Veeraswami, J., that the suit document contains a personal covenant, on which a suit can properly be laid for sale of the mortgaged property.

2. The next question argued was about the applicability of Section 9-A of the Act IV of 1938. The suit, as stated already, was one for sale. It has been held by a series of decisions of this Court that the provisions of Section 9-A of Act IV of 1938 cannot be invoked by the defendant in a suit for sale. His proper remedy would be to file a suit for redemption of the mortgage. It is unnecessary to refer to all the decisions on the subject. In an unreported judgment in A.S. No. 462 of 1950, a Bench of this Court has held that it is not open to a mortgagor in a suit for sale to take the defence that the mortgage money should be reduced by applying the provisions of Section 9-A of the Act. Following that decision, we are of opinion that the objection of the defendant to the suit cannot be sustained. In so saying we are not to be understood as deciding the question whether the defendant-mortgagor would not be entitled to invoke the provisions of Section 9-A in any appropriate proceeding that he may hereafter take.

3. The appeal fails and is dismissed with costs.


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