Posted On by &filed under Bombay High Court, High Court.

Bombay High Court
Laxmandas Harakchand vs Baban Bhikari on 7 August, 1914
Equivalent citations: (1914) 16 BOMLR 671
Author: K Basil Scott
Bench: B Scott, Kt., Beaman


Basil Scott, Kt., C.J.

1. The defendant in this suit has had dealings with the plaintiff for many years, and has advanced money to him upon mortgage, and balances clue on old accounts have been secured by the mortgage of property of the plaintiff. The mortgage-bonds outstanding at present are Exts. 63, 64 & 65, which do not all relate to the same property, Ex. 65 relating to property entirely different fron that to which Exts. 63 & 64 relate. The last of these mortgage-bonds was executed in December 1903. Further monetary dealings took place between the plaintiff and the defendant which are evidenced by promissory-notes commencing with the 1st of August 1905. The defendant in 1909 and 1910 brought four suits in the Jalgaon Court upon promissory-notes executed by the plaintiff subsequent to July 1905.

2. The plaintiff then instituted a suit for a general account under the Dekkhan Agriculturists’ Relief Act, and for redemption of the mortgaged property, and upon his application the four suits filed in Jalgaon on promissory-notes were transferred by the District Court, Khandesh, to the First Class Subordinate Judge in-Dhulia. That Judge has now tried the plaintiff’s suit for account and redemption, and in taking an account he has made up one general account of the mortgage transactions and the promissory-note transactions. The mortgages, he finds, were satisfied by profits received by the defendant some time prior to April 1906, and he has taken the defendant as being in receipt of profits at the rate of Rs. 2,000 a year under his mortgages, which profits subsequent to the date of the satisfaction of the mortgage-debts he has applied in the account in reduction of the defendant’s claim upon the promissory-notes.

3. That manner of taking an account has been challenged in this appeal. It is contended on behalf of the defendant that every mortgage of separate property, even where the suit relates to more than one mortgage, must be the subject of separate account under Section 13 of the Dekkhan Agriculturists’ Relief Act, and that under each separate mortgago the mortgagee is entitled to retain such surplus profits as he may have got before the date of the redemption suit or the date of the redemption decree, and as an authority for that contention the judgments of Sir Charles Sargent in Janoji v. Jwioji (1882) I.L.R. 7 Bom. 185. and Ramachandra Baba Salhe v. Janardan Apaji (1889) I.L.R. 14 Bom, 19, are referred to. Now if those authorities apply here they are binding upon us. But it appears to me that the case may be decided in favour of the appellant upon a somewhat different ground.

4. The mortgagor’s right to file a suit for am account and redemption rests upon the provisions of the Dekkhan Agriculturists’ Relief Act, and that Act makes provision for two different classes of suits for account by agriculturists. Under Section 15 a suit for an account may be filed by a mortgagor-agriculturist even where the time named for payment has not yet expired under the mortgage, and he may have either a declaration of the amount due on the mortgage, or he may combine a declaration of the amount due with a decree for redemption. That is a section which relates purely and exclusively to mortgage transactions. Then there is another section, Section 16, which enables him to sue for a general account of money dealings between him and the lender, and that Section 16 enables him to sue for a bare declaration of the amount due without any relief being claimed. It says:” Any agriculturist may sue for an account of money lent or advanced by a creditor and for a decree declaring the amount, if any, still payable.” But naturally he does not require any further reliefs than that. The plaintiff does not wish to be authorized to pay if the payment is inconvenient to him, as soon as the amount due is ascertained. Therefore the two sections where accounts are contemplated stand on a different footing. The plaintiff here, however, has combined his claim for account of the mortgage transactions with his claim for an account of the moneys lent upon promissory-notes, and he has sought to import the relief to which he is entitled by way of redemption under Section 15 D into his claim for an account under Section 16, and thus to get the benefit of surplus profits remaining in the hands of the mortgagee under the usufructuary mortgage. This we do not think he is permitted to do by the provisions of the Act, and if it were necessary to go further, it would be sufficient to point out that the result would be contrary to the decisions of Sir Charles Sargent which I have already referred to.

5. We, therefore, cannot accept the account taken by the lower Court, and the decree must be set aside and the suit remanded for a fresh account, treating the mortgage account as entirely separate from the promissory-note account, so that the lender mortgagee will not be accountable for surplus profits received by him after the date when it has been found that the mortgage-claims were satisfied.

6. The other point relating to the account which was argued on behalf of the appellant-related to the amount of profits with v inch the mortgagee has been charged, namely Rs. 2,000 per annum. We do not think that we should interfere with the decision of the lower Court upon that point which was come to after careful consideration of all the evidence, for we are not satisfied that the lower Court was wrong.

7. As the learned pleaders for the parties do not wish the mortgage-account to be re-opened, or to be taken again, we remand the case simply in order that the promissory-note account may be taken separate from the mortgage-account. The plaintiff will be entitled to take back his mortgaged property on the footing of the mortgages having been discharged, and the suits on promissory-notes will be dealt with by the lower Court in accordance with the result of the promissory-note account upon the basis indicated in this judgment.

8. The defendant must pay half the costs in the lower Court and have his costs of this appeal. One set of costs to be set off against the other. The rest of the costs of the suit on remand to be dealt with by the lower Court.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

66 queries in 0.283 seconds.