SARADINDU MUKHERJEE Vs. AMIYA KUMAR BASU

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff appellant against the judgment and decree dated 28th July, 1967 passed by Shri R. N. Patra, Subordinate Judge, Third Court, Alipore in Title Suit No. 4 of 1961 dismissing in part the plaintiff's suit with respect to the claim for Rs. 14,200 with interest thereon. The plaintiff appellant instituted a suit for recovery of Rs. 20,324 due on a mortgage stating inter alia that the defendants borrowed from him the sum of Rs. 14,200 on 16-11-57 and a further sum of Rs. 2,200 on November 10, 1958. There was a stipulation that the said sums would carry interest at the rate of 8 per cent per annum. In respect of the advance of Rs. 14,200 the defendant No. 1 drew a Hundi payable to the plaintiff on 30 days' sight without grace and it was accepted by the defendant No. 2 and as evidence of the later loan of Rs. 2,200 the defendant No. 1 gave an 'I owe you' in writing dated February 10, 1958. The Hundi was presented to the defendant No. 2 on maturity for payment but he did not make any payment. The notice of dishonour was given to each of the defendants. On March 28, 1956, the defendant No. 1 deposited with the plaintiff at 3/1, Bankshall Street the deed of lease dated 2-3-46 executed between Sm. Kumidini Ghosh and the defendant No. 1 by which the property in Schedule 'A' to the plaint has been let out at a monthly rent of Rs. 750 and subsequent increments in rent for the term of 15 years with option to renew of the same for a further period of 15 years. The same was deposited with an intent to create an equitable mortgage in favour of the plaintiff by the defendant No. 1 in respect of moneys advanced or to be advanced by the plaintiff to the defendant. It was made to secure the payments of a loan made by the defendant for the sum of Rs. 3,650 from the plaintiff under a promissory note dated March 28. 1956. This amount was included in the Hundi drawn by the defendant No. 1 in favour of the plaintiff for a sum of Rs. 5,000. Again this sum of Rs. 5,000 has been included in the "loan for Rs. 14,200 referred to above. The said deposit of title deeds was regarded as security for loan that was made from time to time by the defendants. A sum of Rs. 17,600 and Rs. 2,716 respectively due and payable by the defendants as stated in schedule 'B' to the plaint. The defendants had not made any payment in repayment of the said loans and as such the plaintiff has filed the present suit for recovery of Rs. 20,324 i.e. Rs. 17,608 as principal and Rs. 2,716 as interest.

(2.) The defendant No. 1, Amiya Ku-mar Basu, filed a written statement on January 8, 1962 denying the allegations made in the plaint. It has been stated that a Hundi was executed by him as alleged but the same was without consideration. It was further alleged that the said Hundi was not executed in accordance with law and it did not bear the proper stamp fee and as such no loan was created by the said Hundi. It has also been alleged that the statement made in the plaint 'I owe you' has not the effect of creating the loan or it was not intended to be an admission of the loan. It has also been stated that there was no deposition of title deeds in respect of the alleged loans. The true fact is that the document of lease dated 2-6-46 along with some share scripts of A. K. Collieries Limited was handed over to the plaintiff in order to help him in Rent Execution Case No. 4 of 1955 of the Court of the 5th Subordinate Judge at Alipore. This will be evident from the receipts granted on behalf of the plaintiff and it will falsify the story of the deposit of title deeds. It has also been stated that there was no deposit of the document with intent to create a security or an equitable mortgage in favour of the plaintiff.

(3.) The plaintiff in support of his case that the title deeds of the land described in schedule 'A' to the plaint has been deposited with an intent to create an equitable mortgage for the loans that have been advanced and will be advanced by the plaintiff examined three witnesses besides examining himself whereas the defendant has examined one witness in order to negative the case of deposit of title deeds with intent to create a mortgage in respect of the loans advanced and to be advanced. On July 28, 1967, the Subordinate Judge, Third Court, Alipore after considering the evidences on record held that the suit was barred by limitation under Article 57 of the Indian Limitation Act (old). It was also held that the original lease deed dated March 2, 1946 was deposited by the defendant with the plaintiff on March 28, 1956 as security against the pro-note dated March 28, 1956. This would appear from letter Ext. 1 dated March 28, 1956. It was also held that there was no mortgage in favour of the plaintiff in respect of sum of Rs. 14,200 and as such the plaintiff's claim for the same was barred by limitation. The loan of Rs. 2,200 advanced on 10-2-58 was admitted by the defendant himself as would appear from Ext. 4. This claim is not barred by limitation. A decree for Rs. 2,200 with interest at the rate of 8 per cent per annum from 10-2-58 till the filing of the suit has therefore been passed by the court below against the defendants.