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Haris Chandra Nandi and on His Death His Heirs and Legal Representatives Sarat Chandra Nandi and ors. Vs. Keshab Chandra Das and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.785
AppellantHaris Chandra Nandi and on His Death His Heirs and Legal Representatives Sarat Chandra Nandi and ors
RespondentKeshab Chandra Das and ors.
Cases ReferredGopeswar Saha v. Jadab Chandra
Excerpt:
transfer of property act (iv of 1832), sections 65, 68 - contract act (ix of 1872), sections 15, 16--mortgage-mortgagee deprived of part of security--right to sue for mortgage money--interest, high rate of--coercion or undue influence, absence of--hard and unconscionable transaction--court, duty of--equitable considerations, applicability of. - .....by the learned vakil for the appellant. in that view of the case it is quite dear that the learned judge was right when he said that the mortgagees having been deprived of these two plots of the mortgaged property by the act of the mortgagor, were entitled to recover the mortgage money from the mortgagor. in my opinion, the learned subordinate judge was clearly right. no other point has been urged in this appeal. the present appeal, therefore, fails and is dismissed with costs.2. there is a cross objection preferred by the plaintiffs and the question involved in the cross-objection is this: the plaintiffs say that the court ought to have awarded to them interest as provided by the contract between the parties. the interest provided for by the contract is no doubt high, 24 per.....
Judgment:

Fletcher, J

1. This appeal is preferred by the first defendant against the decision of the learned Subordinate Judge of the 24-Pergannas, dated the 14th February 1917, modifying the decision of the Munsif at Biruipur. The plaintiffs brought the suit for recovery of certain money in terms of a mortgage deed and also for interest. That is how they described it in the plaint. The facts are these: The plaintiffs got the mortgage in 1902. The date for re-payment of the mortgage money was the 17th October ly08. The present suit was not instituted till the 5th November 1914 The mortgaged property consisted of three plots of a non transferable occupancy holding, and the defendant No. 1, in breach of the duty that he owed to - his mortgagees, purported to transfer two of the mortgaged plots which entitled the landlord to reenter and to forfeit two plots of the mortgaged property. In these circumstances, the learned Subordinate Judge points out that, under the provisions of the Transfer of Property Act, the plaintiffs were entitled to sue for the mortgage money. The argument that has been advanced on behalf of the appellant is that the rights conferred by Sections 65 and 68 of the Transfer of Property Act apply only in cases where the mortgage money has not become due in accordance with the terms of the mortgage deed. There is no warrant for such a suggestion and the terms of the Act appear to me not to support such an argument. The Act means what it says and no such limitation is to be placed upon the sections as has been suggested by the learned Vakil for the appellant. In that view of the case it is quite dear that the learned Judge was right when he said that the mortgagees having been deprived of these two plots of the mortgaged property by the act of the mortgagor, were entitled to recover the mortgage money from the mortgagor. In my opinion, the learned Subordinate Judge was clearly right. No other point has been urged in this appeal. The present appeal, therefore, fails and is dismissed with costs.

2. There is a cross objection preferred by the plaintiffs and the question involved in the cross-objection is this: The plaintiffs say that the Court ought to have awarded to them interest as provided by the contract between the parties. The interest provided for by the contract is no doubt high, 24 per cent. per annum, but it is not suggested, nor has it been proved or found, that any coercion or undue influence was exercised by the plaintiffs in order to obtain this stipulation as to interest. No issue was settled in the first, Court as to the rate of interest, nor was any evidence given on either side, and it was only when the case came to the lower Appellate Court that the learned Judge stated that having regard to the decision of this Court reported as Gopeswar Saha v. Jadab Chandra 32 Ind. Cas. 537 : 43 C. 632 : 22 C.L.J. 352 : 20 C.W.N. 689 the interest in the present case must be taken to be bard and unconscionable. As pointed out by the Judicial Committee in some recent judgments, those provisions about the interest being hard and unconscionable do not apply in this country. The law relating to this matter has been codified in the Indian Contract Act, and the Court cannot go outside the statutory provisions and follow some rules or supposed rules that have been applied in certain cases by the Courts of Equity in England. There is no reason why the parties should not be held to the bargain originally entered into between them and why the rate of interest stipulated between them should not be allowed; I think, therefore, that we should allow the cross-objection and declare that the plaintiffs are entitled to recover interest on the principal sum secured by the mortgage deed at the rate stipulated therein and remit the case to the Court of first instance to ascertain what amount is now actually due on this footing. The plaintiffs are entitled to their costs in the cross-objection.

Cuming, J.

3. I agree.


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