MAUNA PO HLA Vs. MA NGWE SINT

JUDGEMENT

(1.) In this case two appeals from the High Court at Rangoon have been consolidated. They arise out of two mortgage suits brought by the appellants in the District Court of Pyapon. In each suit there were three defendants- two of whom were impleaded in both suits. In Appeal No. 47, the mortgage sued upon was a sub-mortgage of some 125 acres of paddy land in Pyapon township to secure a loan of Rs.7000 with interest at 18 per cent. per annum. In Appeal No. 74 the mortgage sued upon was of four pieces of paddy land in the same township to secure a loan of Rs. 13,000 with interest at 16? per cent. per annum. These mortgages were effected by registered deeds both dated 23 September 1924. The appellants' suit to enforce the sub-mortgage was brought on 19 June 1933, and their suit upon the other mortgage on 23 January 1934. The suits came on for hearing in October 1934 and October 1935, respectively, before different Judges in the same District Court and in each case the plaintiffs succeeded at the trial in obtaining a preliminary decree for sale on the footing that the whole of the loan and of the interest due under the mortgage deed was due and unpaid. On appeal to the High Court these decrees (dated 31 October 1934 and 9 October 1935) were set aside and both suits were dismissed on the ground that the whole of the debt and of the interest had in each case been satisfied and discharged before the suit was instituted. The ultimate decision of the High Court (Mya Bu and Baguley JJ.) in the case upon the sub mortgage was given on 18 August 1936, after an application for review had been allowed. The result of the review was to confirm the Court's original decree of 14 November 1935, dismissing the suit. In the case upon the other mortgage there was a difference of opinion between the two learned Judges of the Appellate Bench (Mackney and Mya Bu JJ.) and the case was under Cl.34 of the Letters Patent of the Court laid before Mosely J., who agreeing with Mya Bu J., allowed the appeal and dismissed the suit.

(2.) The defence which has been accepted in both suits by the High Court is that the mortgage debts had been paid off by the supply of paddy to the plaintiffs' rice mills. The mortgagors in the case of the sub-mortgage were Sein Su and his mother : in the case of the other mortgage Sein Su, his mother and his brother Sein Kar. The plaintiffs Po HIa and Po Cho are Chinese brothers who owned rice mills at and near Rangoon. The defendants say that the loans were made by the plaintiffs to enable the defendants to obtain and deliver paddy to be milled by the plaintiffs. The High Court has accepted the defendants' evidence in respect of the following deliveries the value whereof has, in the opinion of the High Court, been proved to exceed the sums due upon the mortgages in suit : 2515 baskets of Ngasein paddy on 38 September 1924. 2267 baskets of Ngasein paddy on 29 October 1924. 5006 baskets of Kauknyin paddy in October 1925. 4000 baskets of Midon paddy in December 1927

(3.) The defendants say that they have from time to time endeavoured to get the plaintiffs to come to a settlement as to the exact sums due in respect of these deliveries and they produce accounts purporting to show the cost to the defendants of these consignments. The plaintiffs' case is that the monies lent by them were lent as an investment upon a high rate of interest and upon security of the land: though no doubt the defendants wanted the money to trade with. The plaintiffs have been in possession throughout of the mortgage deeds and no receipt for any principal or interest has, at any time, been given or endorsed thereon. Upon the question of the deliveries of paddy the plaintiffs produce no accounts saying that their practice is to destroy their accounts after three years. The plaintiffs do not deny that paddy was at times delivered to their mills by the defendants, but say that the transactions were settled at the time. This the defendants deny save that it is agreed that Rs. 1000 was paid at the time of delivery on account of the sum due in respect of the 4000 baskets of Midon paddy.