THIRTHAGIRI UDAYAN Vs. VENKATARAMA CHETTY

JUDGEMENT

(1.) This is an appeal from the order of the Subordinate Judge of Salem dated 14 February 1933 setting aside in appeal the decree of the District Munsif of Salem dated 6 November 1930 in O.S. No 650 of 1929 and remanding the suit to the trial Court for disposal according to law. The suit which was one for recovery of the amount due under a mortgage dated 10th May 1911 had been dismissed by the trial Court on the ground that it was barred by limitation. So far as the claim against defendant 1 was concerned the plaintiffs appealed and the lower appellate Court held that the plaintiffs claim was not barred as against defendant 1 and the items of the hypotheca other than items 4 to 6. The only point raised in this appeal is that this finding by the learned Subordinate Judge on the question of limitation is wrong. The mortgage-deed in question provided that the mortgage amount with interest was to be paid within three years from the date thereof but there was a default clause to the effect that if interest at the end of each year was not paid the principal and interest should be collected at once without waiting for the period fixed earlier, namely the period of three years.

(2.) It was held by the learned Subordinate Judge that the case fell within the purview of the recent decision of their Lordships of the Privy Council in Lasa Din V/s. Gulab Kunwar 1932 P.C. 207. In view of this latest pronouncement of their Lordships of the Judicial Committee it seems to me quite unnecessary to refer to the earlier decisions of our own High Court which relate to this point. Their Lordships approved what was said by them in an earlier case, Pancham V/s. Ansar Hussain 1926 P.C. 85, and they laid, down the rule that a proviso of this nature entitling the creditor to realise the entire mortgage money with interest in case of default of payment of any instalment of interest is one that is exclusively for the benefit of the mortgagee and that it purports to give the mortgagees an option either to enforce the security at once or to stand by their investment for the full term of the mortgage. They were also of opinion that under the article of the Limitation Act which governs suits of this kind, namely Art. 132, the money does not become duo until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued and that the mortgagor could not be allowed to take advantage of his own default. These observations are clearly applicable to the present case. The fact that the words used in the default clause are "you shall collect the principal interest" instead of the words "you shall have the power to collect" do not in my judgment make any difference as to the nature of the proviso. It does not certainly justify the inference that the proviso is one which takes away the force of the earlier stipulation in the mortgage-deed according to which the principal and interest were to be paid within three years. In this case also it must be held that the proviso in question is one exclusively for the benefit of the mortgagee.

(3.) It was moreover contended on the side of the appellant that in this case even assuming that this was only an option available to the mortgagee the mortgagee had exercised his option by receiving payment of Rs. 800 on 15 July 1913 including a certain portion of the principal amount and giving a discharge to defendant 2 in respect of the items of the hypotheca in which he was interested. Whether as a matter of fact the option was exercised or, in other words, whether the money was collected after a demand was made, and whether the demand Was made for the full amount due on the mortgage, are questions of fact and they have been answered by the lower appellate Court against the appellants. I do not see any reason to differ from the lower appellate Court's findings on these questions of fact. Even assuming that the payment would not have been made without some kind of demand it cannot reasonably be presumed that in every case a demand is made the demand was for the full amount due, especially when what was actually paid is only a portion of what is due. It would appear from the circumstances of this case that the demand that was perhaps made must have been made only in respect of defendant 2's share of the liability under the mortgage and that the payment represents a separate contract or agreement between the mortgagee and one of the mortgagors with reference to his share of the liability and the items in which he alone was interested. It has nothing to do in my opinion with the option provided in the mortgage deed but appears to have been quite an independent transaction. It follows from what I have's d that the finding of the Subordinate Judge on the question of limitation is right. The appeal therefore fails and is dismissed with costs of the plaintiffs-respondents.