Sen Gupta, J.
1. This appeal is directed against the judgment and decree passed by Shri R. L. Mukherjee, Subordinate Judge, Third Court, Alipore, 24-Parganas in Title Suit No. 130 of 1968 allowing the claim of the plaintiff for enforcing a mortgage debt and for realising the money due thereunder.
2. The appeal arises out of the following facts.
3. The plaintiff alleged that the defendant borrowed from him a sum of Rupees 10,000/- on the 26th March, 1962 agreeing to pay interest thereof at the rate of Rs. 10/-per cent per annum on the basis of equitable mortgage in respect of the property mentioned in the schedule given in the plaint. It was further alleged that the defendant deposited with the plaintiff on the selfsame date at Bengal Restaurant at 10 Chowringhee Road in the town of Calcutta, title deeds of the defendant's premises No. 40, Kabir Road, Tollygunge within the district of 24-Parganas thereby agreeing to create an equitable mortgage of the said property for securing the aforesaid loan as evidenced by the pro-note dated the 26th March, 1962 executed by the defendant in favour of the plaintiff. Tn this connection the plaintiff also asserted that the defendant deposited the title deeds of the premises No. 40, Kabir Road and other documents relating thereto on the day when the loan was advanced. The defendant also handed over one memo Ext. 4 and another affidavit, Ext. 5 at 10, Chowringhee Road, in the city of Calcutta on the 28th March, 1962. On the above allegations the plaintiff brought the title suit claiming Rs. 16,000/- as his dues to be realised from the defendant and accordingly he made a prayer for preliminary decree against the defendant in terms of Order 34, Rule 4 of the Civil P. C. and for a final decree under Order 34, Rule 5 of the said Code. . Prayer for costs was also made.
4. The defendant did not challenge the pro-note and the fact that the plaintiff advanced Rs. 10,000/- to him by way of loan. He, however, contested the claim of the plaintiff that the defendant mortgaged premises No. 40, Kabir Road by depositing the title deeds as alleged by him. He seriously contested the allegations of the plaintiff that the transaction took place on the 26th March, 1962 at 10, Chowringhee Road in the town of Calcutta or that any title deed of the premises in question was ever handed over by him to the plaintiff on the date and place as alleged.
5. The learned Subordinate Judge overruled the contention of the defendant and passed a decree as prayed for by the plaintiff. Being aggrieved by the said judgment and decree the defendant has preferred this appeal.
6. Mr. Sen, learned Advocate for the appellant submits that the appellant has no objection for a decree to be passed against him but it should be a money decree and not a mortgage decree. Mr. Sen's contention is that the plaintiffs story that the title deed of premises No. 40, Kabir Road was handed over at Bengal Restaurant in premises No. 10, Chowringhee Road in the city of Calcutta and that the loan was advanced there, cannot be said to have been established on evidence, far less, the plaintiff has been able to establish the intention of the defendant to create an equitable mortgage in respect of the said premises. Mr. Sen has also submitted that in a case like this three requisites are to be established by the plaintiff before he can get a decree for mortgage. They are (1) debt, (2) deposit of title deed and (3) an intention that the deed shall be security for the debt. It has however, not been challenged as to the existence of debts. With regard to two other requisites, namely, deposit of title deeds and the intention as referred to, Mr. Sen contends that on the evidence on record they cannot be said to have been established. Mr. Mitter, learned Advocate appearing for the respondent, however, drew our attention to the evidence on record and it has been contended that the defendant deposited the title deeds with the plaintiff not in his house as alleged by the defendant but at Bengal Restaurant situated at 10, Chowringhee Road in the town of Calcutta. The plaintiff has produced the title deed of the premises of 40. Kabir Road and the relevant documents connected therewith. Now the question arises whether those deeds were handed over to the plaintiff by the defendant at 10, Chowringhee Road or in the house of the plaintiff situated outside the jurisdiction of the Presidency town of Calcutta. The defendant asserted that he deposited the title deeds and executed the handnote at 14B, Lansdowne Place in the house of the plaintiff; that the plaintiff forced him to create a document, Ext. 4 -- the memo, and Ext. 5 the affidavit in which he was made to make an untrue statement that the loan was advanced at 10. Chowringhee Road and that the title deed of the premises No. 40, Kabir Road was handed over to him there on the 26 March, 1962 though in fact the said transaction took place in the house of the plaintiff; that these are the statements which he had to make in order to oblige a creditor. Accordingly, the defendant asserted that no importance should be attached to that part of the statement which he was made to make.
7. We have carefully gone through the evidence on record. The plaintiff has stated on oath that the said transaction took place at 10, Chowringhee Road in Bengal Restaurant on the 26th March, 1962 and that the title deeds of premises No. 40, Kabir Road and the connected documents were handed over to him there. As per arrangement defendant supplied the memo. Ex. 4 and the affidavit Ext. 5 to him. He frankly admitted that tic said transaction was carried out under the advice of his lawyer P. W. 3. The defendant could not deny the fact that the P. W. 3 acted as a lawyer of the plaintiff. The plaintiff also stated that one Hiralal Das introduced defendant to him with a request to give him loan of the amount in question. The said fact is not disputed by the defendant. In this connection it may be mentioned that the defendant himself admitted that Hiralal and Jyotish Babu were present at the time when the loan was advanced but curiously enough the defendant did not venture to cite Hiralal Basu as a witness in this case. P. W. 2 Arobinda Singha, son of the proprietor of Bengal Restaurant has also supported the case of the plaintiff. It may, however, be noted that his father died in the year 1967. His father appeared as one of the witnesses in the memorandum handed over by the defendant to the plaintiff on the 28th March, 1962, P. W. 3 Jyotish Chandra Chatterjee, learned lawyer also deposited in favour of the plaintiff and supported his case. There is no reason to disbelieve his statements. The learned Subordinate Judge also considered the evidence on record and found in favour of the plaintiff. We do not find any reason to differ from the said finding arrived at by the learned Subordinate Judge.
8. From the above we hold that the defendant deposited his title deeds of the premises No. 40, Kabir Road at Bengal Restaurant at 10, Chowringhee Road in the City of Calcutta. So the second condition as was submitted by Mr. Sen has also been proved in this case.
9. Now we are to consider whether the third requisite i.e. the intention of the defendant to secure the debt by depositing the title deed of premises No. 40, Kabir Road with the plaintiff has been established, in support of the contention of Mr. Sen, he drew our attention to the case of K. J. Nathan v. S. V. Maruthi Rao reported in : 6SCR727 . Their Lordships also held that those three requisites were necessary to be established before a decree for mortgage could be passed.
10. Mr. Sen has next submitted that even if it be held that the title deeds in respect of premises No. 40, Kabir Road were handed over to the plaintiff at the place and on the date as alleged by him still then the materials on record would not justify for holding that the defendant intended to use these deeds as security for his debt.
11. Mr. Mitter, on the other band, drew our attention to the evidence on record as well as to the memo. Ext. 4 and affidavit Ext. 5 and submitted that those documents are sufficient to show that the defendant had an intention to create the security on his property i.e. 40, Kabir Road, for re-payment of the loan. Our attention has further been drawn to the evidence of D. W. 1, defendant himself. In his cross-examination he frankly admitted that under his advice his lawyer sent a letter to P. W. 3. That letter has been marked Ext. 6 (a). Defendant admitted that the reply by his lawyer sent by the letter Ext. 6 (a) was correct. From the letter Ext. 6 (a) it transpires that Mr. Dasgupta, learned Advocate for the defendant, stated that his client, i.e. the defendant, was always eager to pay up the clues, outstanding on the equitable mortgage. Therein it is seen that Mr. Dasgupta mentioned the loan as equitable mortgage. That is a clear admission on the part of the defendant through his lawyer that the said transaction was an equitable mortgage. Mr. Sen, however, contends that the said admission on the part of Mr. Dasgupta could not bind his client as the fact whether the said transaction was a loan or mortgage depended on the question of intention and as the question of intention is a question of law, the learned lawyer could not bind the defendant by making such an admission in his letter. Mr. Sen drew our attention to the case of Societe Beige de Benque S. A. v. Rao Girdhari Lal Chowdhury reported in AIR 1940 PC 90 wherein it has been laid down by their Lordships that a counsel's admission on a point of law cannot be binding upon a Court and the Court is not precluded from deciding rights of the parties on a true view of the law.
12. Mr. Mitter did not dispute the said contention as raised therein. But he submits that the contention of Mr. Sen that the intention is a question of law is not correct. It is always a question of fact. In support of his contention he referred to the very decision referred to by Mr. Sen, which is reported in : 6SCR727 (supra). It has been laid down by their Lordships therein that 'Whether there is an intention that the deed shall be security for the debt is a question of fact in each case. The said fact will have to be decided just like any other fact on presumption and on oral, documentary or circumstantial evidence.' We agree with Mr. Mitter that the question of intention has got to be considered on the materials on record and the question of inference as to law does not arise in this case. Mr. Sen unfortunately missed to note that, the above observation of their Lordships was in the case which he himself cited. Be that as it may, the said contention of Mr. Sen also fails.
13. Lastly, Mr. Sen submits that the learned Court below ought to have granted some easy instalments to the defendant to pay the decretal amount. Our attention has been drawn to the provisions of Section 34 of the Bengal Money Lenders Act, 1940. It is, no doubt, true, that in case of an application filed by the defendant, the Court's duty is to grant some instalments provided of course, the loan in question comes within the purview of the Bengal Money Lenders' Act. The defendant did not claim arty instalment in his evidence, neither any such application was filed. No issue was raised in the lower Court. Loan under the Bengal Money Lenders Act has got its special significance and it is essentially different from commercial loan. Admittedly the defendant was a contractor by profession. In cross-examination, defendant of course stated that he took the lean for his personal use without mentioning if specifically. Mr. Sen wants to take the advantage of that statement which was brought out in cross-examination. We are, however, not convinced with the said submission made by Mr. Sen and we hold that prayer for instalment is not entertainable at this stage.
14. Considering all the facts and materials on record and after hearing the learned Advocates of the parties, we do not find any reason to interfere with me findings of the learned Subordinate Judge.
15. In the result, the appeal is dismissed with costs to be paid by the appellant to the respondent. Hearing fee assessed at 10 (ten) G. Ms.
A.K. Sinha, J.
16. I agree.