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Binapani Roja Vs. Rabindranath Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberSuit No. 2852 of 1950
Judge
Reported inAIR1959Cal213
ActsEvidenc Act, 1872 - Sections 137 and 138; ;Transfer of Property Act, 1882 - Section 58; ;Registration Act, 1908 - Section 17; ;Debt Law; ;Bengal Money-lenders Act, 1940 - Sections 2(13), 2(14), 8 and 25; ;Code of Civil Procedure (CPC) , 1908 - Section 34
AppellantBinapani Roja
RespondentRabindranath Sarkar and ors.
Appellant AdvocateGouri Mitter, Adv.
Respondent AdvocateR.N. Ghosh, Adv.
Cases ReferredHari Shankar Paul v. Kedar Nath Saha and Sir Dinshaw Mulla
Excerpt:
- .....original lender. that is the evidence of sri ajen ghosh. all the documents, namely, the promissory note in suit and the letters of deposit bearing the signature of defendant no. 1, indicate that the original plaintiff was the lender. learned counsel appearing for the defendant contended that from the day book entry of ajen ghosh and certain circumstances surrounding the transaction, i should hold that ajen ghosh's evidence on the point is not dependable. leaving apart the evidence of ajen ghosh on this point, the evidence of the documents still remains. there is no evidence of undue influence. suggestion in cross-examination, which is denied, is no evidence at all. on such a state of evidence, i am bound to hold that the loan was granted by maniklal roja and not by sri ajen ghosh. the.....
Judgment:

P.C. Mallick, J.

1. This is a suit to enforce a mortgage created by a deposit of title-deeds in March 1947. The suit was instituted by the original mortgagee in July 1950. Shortly after, in November 1950 the original mortgagee died and the suit is being continued by his widow the present plaintiff who has been substituted in the place and stead of the original plaintiff. The defenadnt No. 1 Rabindranath Sarkar is the mortgagor. The other defendants are mortgagees having an interest in the equity of redemption. It is alleged that the loan was made on the deposit of title-deeds of certain immovable properties situate at Calcutta in which the Mortgagor defendant had a half share. By way of additional security three several promissory notes in favour of the mortgagor defendant were deposited with the plaintiff. The promissory notes were not however endorsed in favour of the mortgagees. The said promissory notes are for Rs. 26,000/- , Rs. 17,000/- and Rs. 19,000/- respectively. It is alleged that the defendant No, 1 instituted a suit on the promissory note dated 2-4-1946 for Rs. 7,000/- and after recovering the said sum, Rs. 6,500/- has been paid by the mortgagor to the plaintiff. A second suit on the promissory note dated 16-4-1939 for Rs. 26,000/- is still pending. The third promissory note for Rs. 19,000/- is time barred. I am told, though it does not appear in evidence that on this promissory note of Rs. 19,000/- only Rs. 3,500/- was, due and payable. The amount due to the plaintiff as alleged in the plaint is Rs. 13,500/- on account of principal and Rs. 1434/- on account of interest calculated up to 30-6-1950. A decree in Form No. IX of Appendix D of the Code of Civil Procedure is claimed as also a declaration that the promissory note dated 16-4-1939 for Rs. 26,000/- is charged for the repayment of the loan. There is a further prayer for ad-judication of priorities of the various mortgagees.

2. There are all told five defendants in this action. Of those defendants, except the defendant No. 1, namely, the mortgagor, none have contested the suit before me. Of the remaining defendants the defendant Amarendranath Bose and the defendant Phanindra Lal Mukerji and Manindra Lal Mukerji have filed written statements. The only point that was made by Phanindra and Manindra is that even though their mortgage was subsequent to the mortgage in favour of the plaintiff they are entitled to priority. I am told now by Mr. Gouri Mitter, learned counsel appearing for the plaintiff, that all the mortgagees have been paid off. The contest, therefore, before me is a straight contest between the plaintiff on the one hand and the defendant No. 1 on the other. It is not necessary for me therefore to summarise or to state the defence of the defendants other than the defendant No. 1. No other defendant has appeared at the trial.

3. The defendant No. 1 has contested the suit and in his written statement has taken up a luimbef of defences. In the first place, the deiendant denied the equitable mortgage. He admitted however that to secure an advance of Rs. 20,000/- taken by the defendant from A.K. Ghose of Messrs. H.N. Datta and Co. he deposited three promissory notes referred to in the plaint . It is pleaded that it was agreed that Mr. Ghose would be entitled to realise the amounts covered by the said three promissory notes and appropriate the same in payment of the loan in the present suit. It is further pleaded that two suits on the basis of the two promissory notes for Rs. 26,000/- and Rs. 7,000/- respectively were instituted by Messrs. H.N. Datta and Co. and the amount due on the second promissory note for Rs. 7000/- had been realised, the other suit for Rs. 26,000/- is still pending. The execution of the documents referred to in the plaint is admitted but it is alleged that the execution was procured by the exercise of undue influence by A.K. Ghose, a member of the firm of H.N. Datta and Co. Two other defences have been taken under the Moneylenders Act, (i) the plaintiff is a moneylender but holds no licence under the Moneylenders Act, (ii) nor did the plaintiff send any statement of account as required by the Moneylenders Act, and it is contended that in consequence the plaintiff is not entitled to any interest or costs or decree. Lastly, instalment has been claimed under the Moneylenders Act.

4. On the pleadings the following issues were settled:

1. Did Maniklal Roja lend and advance to the defendant No. 1, the sum of Rs. 20,000/- as alleged in paragraph 1 of the plaint?

2. (a) Did the defendant No. 1 deposit with Manicklal Roja the documents of title in respect of premises NoSection 32/13A, 32/13B, Beadon Street and 3173-A, Hertuki Bagan Lane on equitable mortgage as alleged in paragraph l(a) of the plaint?

(b) If so, was the deposit made in Calcutta within the said jurisdiction?

3. Did the defendant No. 1 deposit with Manicklal Roja as additional security for the alleged loan three promissory notes as alleged in paragraph 2 of the plaint?

4. Is the defendant No. 1 entitled to the reliefs under Bengal Moneylenders Act?

5. Is the suit maintainable? 6. To what relief, if any, is the plaintiff entitled?

5. The plaintiff tendered the evidence of Sri A.K. Ghose and Amarchand Roja. The defendant did not tender either his own evidence or the evidence of any other witness.

6. Shri A.K. Ghose in his evidence stated that the plaintiff was an old client of H.N. Datta and Co. He proved that Rs. 20,000/- in cash was paid to the defendant No. 1 by the original plaintiff. After payment and deposit of title deeds the promissory notes and the two letters regarding deposit, one of title-deeds and the other of the three promissory notes were executed by the plaintiff in his office. Sri Ghose was acting for both the plaintiff and the defendant No. 1 in the transaction. He further proved the payment of Rs. 6,500/- which was realised by him in execution of a decree obtained on the footing of the said promissory note for Rs. 7,000/-. Atter the receipt of this money the defendant paid the money to the original plaintiff. He further stated that after the institution of the suit the defendant No. 1 came to him several times for settlement and ultimately no settlement was effected. Sri Ghose was elaborately cross-examined, but having regard to the fact that the plaintitf did not tender any evidence in support of the case made by him in his written statement, I do not think it necessary to discuss the points raised in cross-examination.

7. The loan is admitted. The only dispute is who is the lender? The only evidence on the point on record is that the plaintiff was the original lender. That is the evidence of Sri Ajen Ghosh. All the documents, namely, the promissory note in suit and the letters of deposit bearing the signature of defendant No. 1, indicate that the original plaintiff was the lender. Learned counsel appearing for the defendant contended that from the Day Book entry of Ajen Ghosh and certain circumstances surrounding the transaction, I should hold that Ajen Ghosh's evidence on the point is not dependable. Leaving apart the evidence of Ajen Ghosh on this point, the evidence of the documents still remains. There is no evidence of undue influence. Suggestion in cross-examination, which is denied, is no evidence at all. On such a state of evidence, I am bound to hold that the loan was granted by Maniklal Roja and not by Sri Ajen Ghosh. The fact of deposit of title deeds is also proved by these documents themselves, even if I ignore the evidence of Sri Ajen Ghosh. It may be that the documents deposited were not at all the title deeds, but in law, to create an enquitable mortgage, deposit of all title deeds is not necessary or imperative. I hold, therefore, on the evidence before me, that the plaintiff has proved the equitable mortgage executed by the defendant by deposit of title deeds for the payment of Rs. 20,000/- lent and advanced by the original plaintiff to defendant No. 1.

8. Mr. Ghosh, learned counsel for the defendant, strenuously argued that the letter of deposit relied on by the plaintiff required registration. The letter of deposit reads as follows:

'This is to place on record that I have deposited with you the following documents of title relating to the above premises with intent to create an equitable mortgage thereon as security for repayment of the amount with interest due to you under the promissory note executed by me in your favour'.

It refers no doubt to the promissory note which records the loan of Rs. 20,000/- repayable on demand at the interest of 7 1/2 per cent. But this particular letter of deposit does not contain either the amount of the loan or the rate of interest or the period of redemption. The document, on the face of it, records a past transaction and the language is clear. It is not a document by which the mortgage was created. This document cannot be considered itself to be the bargain. Mr. Ghosh attempted to prove that these three documents, namely, the promissory note, the deposit of title deeds, and the letter of deposit, were simultaneous and in fact constituted a single transaction. This case was expressly put to Sri Ajen Ghosh, the plaintiff's witness. Ajen Ghosh, however, denied that all these three things took place simultaneously. The entire thing took about two hours. First the loan was given, then the tide deeds were deposited and thereafter the promissory note and the letter of deposit executed by defendant No. 1. Defendant No. 1 did not come into the witness-box and tender his own evidence against this evidence of Ajen Ghosh. The evidence of Ajen Ghosh is consistent with the document, and I am bound to hold, on the evidence before me, that the letter of deposit was executed after the equitable mortgage had been created by the deposit of title deeds on receipt of the money. I agree that if the letter of deposit itself can be treated as the bargain or the contract of mortgage, then the document, be it in the form of a letter of deposit, memorandum or an agreement, must be registered, in order that a valid mortgage may be created. But if the equitable mortgage is effected by oral deposit of title deeds to create a security and subsequently a document is created recording this fact, such a document is not required to be registered. (See Sundarachariar v. Narayana Ayyar ; Hari Shankar Paul v. Kedar Nath Saha and Sir Dinshaw Mulla's Transfer of Property Act, 3rd Edition, page 361). In the instant case the letter of deposit is nothing more than a record of a past transaction and as such, in my judgment, it is not required to be registered. I am bound to hold that the equitable mortgage in suit is perfectly valid in law.

9. The next point urged by Mr. Ghosh is that the plaintiff is a moneylender. The evidence in this case is that apart from this particular loan, the plaintiff did not advance money to anybody else. The question, therefore, is whether a man advancing a single loan on interest can be considered to be a moneylender under the Bengal Money Lenders Act. In Bengal Money Lenders Act 'moneylender' has been defined as follows:

'Money lender means a person who carries on the business of money lending in Bengal ......'

Money lending business has been defined as follows:

'Money lending business means the business of advancing loans either solely or in conjunction with any other business.'

According to the definition, in order to be a 'money lender' one must carry on money lending business, which means the business of advancing loans. The word 'loans' in the plural is to be noted. It follows that if a person lends money on a single occasion on interest, he cannot be considered to be a moneylender. To advance one single loan can, by no stretch of imagination, be considered to be a business. Therefore, in order to establish that the plaintiff is carrying on business of moneylending, it must be proved that he has lent money on more than one occasion, In the instant case, as I stated before, the evidence is that the original plaintiff lent money on a single occasion. In my judgment, therefore, the plaintiff cannot be considered to be a moneylender within the meaning of Bengal Money Lenders Act. Mr. Gouri Mitter referred me to the English Act and certain decisions of the English Courts on the English Act. The definition of 'moneylender' under the English Act is more or less akin to the definition in our Act, the test being whether he carries on the business of moneylending, It has been held by the English Courts that in order to become a 'moneylender', it is necessary to prove that the man lent money at least more than once. These decisions on the English statute, which I hold to be pari materia with the Indian statute, can be referred to for the purpose of construction of the instant Act. They are not compelling decisions, but they are certainly persuasive derisions. But, apart from the English authorities and the English statute, I hold, on the construction of our present Act, that in order to be a 'moneylender', under the Bengal Money Lenders Act, it must be proved that there has been more than one loan advanced by the lender I, therefore, hold that it is not necessary in the instant case that the plaintiff should have taken out a licence under the Bengal Money Lenders Act nor it was necessary to send a statement of account to the defendant as required by the Money Lenders Act.

10. The only other relief that the defendant has claimed in the suit is the relief for the payment of the decretal dues by instalments. That he is entitled to get under the Act. The defendant, however, has given no evidence as to his financial position and, therefore, in law he is not entitled to more than two instalments. Mr. Gouri Mitter, learned counsel for the plaintiff, however, would not object to the granting of more than two instalments, provided the first instalment is comparatively heavy.

11. The suit was instituted in 1950 and is being heard today in 1958. Interim interest has mounted up to a high figure. At an early stage the suit was almost settled, but it broke down because the parties could not agree to the amount of interim interest to be paid by the defendant No. 1. Mr. Ghosh on behalf of the defendant wanted to be relieved of the liability to pay interim interest altogether. Mr. Gouri Mitter on behalf of the plaintiff was willing to give up a part of the interim interest, but not the whole of it. Payment of interim and further interest is at the discretion of the Court. In the intant case, there are circumstances which call for the exercise of this discretion in favour of the defendant. A portion of the claim on the promissory note for Rs. 19,000/- deposited by the defendant as security was time barred. I cannot absolve completely the plaintiff, which includes his legal adviser, in the matter. I need not discuss the evidence on this point, but I feel that the plaintiff has a legitimate grievance in this respect and I should take note of this fact in granting the plaintiff some relief in the matter of interim interest. On account of interim interest, in my judgment, the defendant should be made liable for the sum of Rs. 2065/10/- and nomore. The claim of the plaintiff is proved and inclusive of interim interest his claim would amount to Rs. 17,000/- and I pass a decree accordingly. The decretal amount is to be paid in the following instalments; Rs. 12,600/- by the end of 1958 and the balance including costs to be paid in four equal instalments, namely, by the end of 1959, by the end of 1960, by the end of 1961 and by the end of 1962. There would be a usual mortgage decree in terms of the Bengal Money Lenders Act. Interest would run at the rate of 6% from the date of default. The defendant is to pay the costs of this suit. The plaintiff will be able to realise from the Court the sum of Rs. 12,625/- lying in deposit in Court in satisfaction of this decree and I direct the Registrar that this amount be paid to the plaintiff forthwith. Let the Bill of Costs up to the preliminary decree be taxed expeditiously.


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