MEGHRAJ & ORS. versus MST. BAYABAI & ORS.

MEGHRAJ & ORS.

MST. BAYABAI & ORS.

April 30, 1969

[J. C. SHAH AND G. K. MITTER, JJ.J

MortgGge-Money deposited in Court towards principal, effect of-, Interest-Some mortgagee Firm's Partners migrated to Pakistan-Custodian of Evacuee Property impleaded-Ef/ect of.

Madhya F1adesh Money Lenders Act (Madli. Pra. 13 of 1934), s. 9-lnterest lvhether can exued principal.

preliminary decree was obtained by the mortgagee-firm for recovery of the principal, interest at 3 % and costs by sale of the mortgaged pro-perty. The High Court in affirming the decree, directed payment of the decretal amount by November 10, 1946, and awarded interest at 3% from the date of suit to Auf1St 11, 1941 and thereafter at 4% till the date of satisfaction. In an apphcation for clarification of the order the Hiah Court directed that interest 'be paid at 3 % from October 5, 1936 till A11gust 11, 1941 on the amount decreed by the trial court and at 4% thereafter till November 10, 1946. During the pendency of an appeal by the mortgagor against the preliminary decree some of the partners of the mortgagee-firm migrated to Pakistan, and were declared evacwees. The court ordered that the Custodian of Evacuee Property be impleaded as party respondent in the appeal. The appeal filed in this Court was dismissed.

Thereafter the only partner of the mortgagee,.firm who had not migrated, for himself and as agent of the evacuees applied for decree absolute for sale. The Custodian of Evacuee Property resisted the application. Ultimately the High Court ordered that the Custodian of Evacuee Property be joined as party to the application for decree absolute for sale, ob&erving that the respective rights of the Custodian of Evacuee Property and the partners of the mortgagee firm were not decided in that proceeding: Tile mortgagors contested the application, contending that (i) on proper accounting nothinJ WaH due against them since they had made deposits towards the principal in the Court 0. 21 r. 1 C.P.C. as and in making some deposits they bad informed the court that the payments were made towards the principal due; (ii) the High Court by its order clarifying the decree restored the rate of interest awarded by the trial court after November IO, 1946; (iii) the mortgagee could not be awarded as interest an amount exceeding the principal, because of s. 9 of the Madhya Pradesh Money Lenders Act, 1934; and (iv) the Custodian of the Evacuee Pro-perty was not entitled to the decree absolute for sale, and drat the only partner. who had not migrated, could get decree absolute in respect only of bis share. Rejecting these contentions, this Court :-

HELD : (i) Unless the mortgagees were informed that the mortgagors had deposited the amount only towards the principal and not towards interest, and the mortgagees agreed to withdraw the· money from the court accepting tho condltiollal deposit, th,. normal rule that the amounts de· posited in court should first be applied towards satisfaction of the interost aT1d co~ts and thereafter towards the principal applied. There was no

c:vidr.nce in this C'.risc, tha-. the mortgagees were informed that the money wa1 dcpoaited towards principal or that the mortgaiccs accepted the pa}-meot made tov,ranb the principal. f52b C-DJ

Venkatadri A.ppa RoH- and Ors. v. I'arthasarathi Appa Row, L.R. 47 I."<. 150, referred to.

(ii) By directing that interest at 4% from Auaust 12, 1941 to Novem-ber 10, 1946, it was not, and could not be, inttnded by the High Court that interest after November 10, 1946 was to be awarded only at 1he rate of 3 % . No such application was made by the debtors. The High Ceurt did not reduce the rate of interest after November 10, 19~6.

(iii) Section 9 of the Madhy" Pradesh Money Lenders Act prohibited tile courts from awarding interest exceeding the principal of the Joan. But tke prohibition of the statute was against the making of decree t'or arrears of intcr~t exceeding the amount of loan. In the present CJse tbe decree awarded interest much leo;s tba11 the principal. [529 BJ

(iv) The court was concerned in the pres~nt proccc<ling to pass 4ccree absolute tor !lale ir. mortgage suit. It was not concerned to determine the respective rights of the mortgagees inttr -~t". The mortgagees· iatcrest was fully represented l-~fore the- _Court. Whether or not the Cu'1.oclian Jf Evacurc Propeny was cntitJed to tne monc~ or that the cvacu.eea had subsisting intereti.t wns matter which co~1ld nvl he decided ia tbis appeal. That was made clear by the judgment of t~·· Hieb Court in the applicatjor. filed by the Custodian of Evacuee Property. 1529 D]

CIVIL APPELLATF. JL'RISDICTION: Civil Appeal No. 60! of 1,65.

Appeal by special leave from the order dated November 30, 1964 of the Bombay High Court, Nagpur Bench in First Appeal No. 80 of 1964.

G. L. Sanghi and J. B. Dadachanji, for the appellants.

W. S. Bar/ingay, R. Maha/ingier and Ganpat Rai, for res-poadent No. 6.

B. D. Sharma and S. P. Nayar, for respondent No. 11.

The Judgment of the Court was delivered by

Sbab, J. Seth Haroun and Sons firm had ten partners. The Hindu undivided family of Jethamal Ramkaran mortgaged house belonging. to it to Seth Haroon and Sons to secure repay-ment of Rs. 40,000 due at the foot of an account. Seth Haroon and Sons filed suit· No. 12-A of 1936 for recovery of their dues by iale of the mortgaged house. On December 28, 1940, decceo was passed in the suit by the Additional District Judge. The case was carried in appeal to the High Court of Nagpur. But the appeal was dismissed subject to slight modification to be presently noticed. An appeal was carried against the decree to ttm Court. During the pendency of the appeal to this ,Court. nine out of ten members of Seth Haroon and Sons migrated to

Pakistan and were declared evacuees. By an oroer passed by this Court on March 28, 1958, the Custodian of J;!vacuee Property was impleaded 'as party respondent in the appeal filed by the mortgagors. This Court dismissed the appeal on August 8, 1958. Thereafter the 6th plaintiff Mohammad Ayyub-the only member of the firm who had not migrated, for himself and as agent of the evacuees under general power of attorney applied for -a decree absolute for sale. The Custodian of Evacuee Pro-perty resisted the application filed by Mohammad Ayyub. Ulti-mately by the order passed by the High Court of Bombay the Custodian of Evacuee Property was joined as party to the appli-cation. The Court however observed that the respective rights of the Custodian of Evacuee Property and the partners of Seth Haroon and Sons were not decided in that proceeding.Diverse contentions were raised by the mortgagors~ they con-tended, inter alia tl)at on proper account being taken nothing was due by them on the: mortgage, that interest was wrongly calculated at the rate of 4% per annum, that the claim f,or recovery costs was barred by the law of limitation and that interest could not be awarded on costs. The learned Trial Judge substantially rejected the conte~ons raised by the mortgagors and passed decree, for Rs. 34,612~81 being the aggregate of Rs. 33,866-51 as principal and Rs. 746-30 as interest. An appeal filed against that order was suII!marily dismissed by the High Court. With special leave, this ~ppeal is preforred by the mortgagors.

Counsel for the mortgagors contended that on proper account of the monies paid by them in satisfaction of the dues under the mortgage decree, this mortgage was satisfied and the mortgagees were overpaid. Counsel contended that from time to time payments were made by the mortgagors with specific direc-F tions that the amounts paid were to be credited towards the prin-cipal and not towai;ds interest and if the amounts so paid were in the first instance credited towards the principal, it would be found that the mortgage dues had been overpaid. Now, the learned Trial Judge observed that Exts. 44 to 55 relied upon by the mortgagors were silent as to any specific directions that the amounts paid in Court were to be appropriated only towards the ,principal. Cbunsel for the appellant has invited our attention to certain applications, made at the time of making .deposits in Court, in which it was recited that the amounts were being deposited towards the principal. Relying upon these recitals it was urged that the Trial Court was in error in holding that there . were no directions for. appropriation of payments towards the principal. We have not thou~t it necessary to ascertain the tot:\! number of applications in which recitals were made by the mortgagors at the time of making part payments towards the principal, because on

the view we take, these recitals, without more, do not assist the claim of the mortgagors.

Under the preliminary decree ~n amount of Rs. 42,430-2-6 was declared due upto June 23, 1941 towards principal and interest. The mortgagors made no payments under the decree directly to the mortgagees. But from time to time they claim to have made deposits in the Court under 0. 21 r. 1 of the Code of Civil Procedure, and in depositing some of the amounts the) <lated that the payments were towards the principal due. But there is no evidence on 1be record that the mortgagees were inform-ed that the amounts were deposited towards the principal due. nor is there evidence that the mortgagees accepted the amounts towards the principal. For quite long time the mortgagees did not withdraw the amount lying in Court. Unless the mortgagees were informed that the mortgagors had deposited the amount only towards the principal and not towards the interest, and the mort-gagees agreed to withdraw the money from the Court accepting the conditional deposit. the normal rule that the amounts deposit-ed in Court should fiN be applied towards satisfaction of the interest and costs and thereafter towards the principal would ;:ppl\'.

In Vc11ka1adri Appct Rmv and Others v. Parthasarathi Appa Row( [1 ]) the Judicial Committee of the Privy Council observed that upon taking an account of prinicipal and interest due, the ordinary rule with regard to payments by the debtor unappropriat-ed either to principal or interest is that they are first to be applied to the discharge of interest. Lord Auchmaster delivering the itidgmcnt of the Board observed :

"There is debt due that carries interest. There are are moneys that are rcq:ived without definite appropria-tion on the one side or on the other. and the rule which is well established in ordinary cases is that in those cir-cumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital. That rule is referred to by Rigby, L. J., in the case of Parr's Barking Co. v. Yates-[ ( 1898 2 Q.B. 460] in these words : "The defendant's counsel relied on the old rule that does, no doubt. apply to many cases, namely, that, where both principal and interest are due, the sums paid on account must be applied first to interest. That rule, where it is applicable, is only com-mon justice. To apply the sums paid to principal where interest has accrued upon the debt, and is not paid, would be depriving the creditor of the benefit to which he is entitled under his contract."

There are are

(I) L.R .. 17 I.A. llO.

Counsel for the appellant contended that in Venkatadri Appa Row's(') case there was no specific appropriation by the debtor, whereas in the present case there is specific direction by the debtor. But the normal rule is that in the case of debt due with interest any payment made by the debtor is in the first instance to be applied towards satisfaction of interest and thereafter to the prin-B cipal. It was for the mortgagors to plead and prove an agr.:e-ment-that the amounts which were deposited in Court by · the mortgagors were accepted by the mortgagees subject to condi-tion imposed by the mortgagors. In the present case there is no evidence which supports the contention raised by counsel for the appellant.

Counsel urged that, in any event, when an account was finally submitted by the mortgagees they were aware of the fact that cer-tain amounts were paid in Court and they knew that those amom1ts were paid conditionally and when the mortgagees withdrew the amounts deposited in Court they must be deemed to have accepted the conditions subject to which the amounts were deposited. But the account submitted by the mortgagees shows clearly that they had given credit for the amounts deposited towards the interest an!f costs in the first instance and the balance only towards the principal. The account submitted by the mortgagees clearly negatives the plea of the mortgagors. ·

An argument somewhat faintly suggested before us that it is the privilege of the debtor to impose conditions subject to which any payment is to be made by the mortgagor, and the mortgagee is bound to accept the condition needs no serious consideration.

It was next urged that the decree was passed by the Trial Court awarding interest at the rate of 3 % per annum and the order of the High Court in appeal modifying the original decree by awarding interest at the rate of 4% was erroneous. Under the decree of the Trial Court interest was awarded at 3 % . In appeal Interest was awarded by the' High Court at 4%. There-after by modification in an application for correction of the decree interest at 4% per annum was awarded from August 12, 1941 to November 10, 1946. It was urged, relying up<in the order modifying the rate of interest, that from November 11, 1946 the mortgagees were entitled only to interest at the rate of 3 % . There is n~ substance in that contention also. The High Court by order dated August 10, 1946, observed :

"A preliminary decree for sale shall be drawn a~cordingly and the .defendants (the appellants) are given three months Ume from today to pay off the decretal amount. The amount shall carry interest at

(I) L.R. 47 I.A. ISO.

the rate or 3% per annum from the date of suit to 11-8-1941 and at the rate of 4% per annum from 12-8-1941 to the date of satisfaction."

Apparently the decree drawn up by the High Court was not con-sistent with the directions given in the judgment, and an applica-tion was made to rectify certain mistakes in the decree. One of the grounds urged in support of the application was that interest should have been computed only on the principal out of the tot<11 of Rs. 35.299-1-6. The Coun rejected the application holding that the Trial C:oun had decreed the claim of the mortgagees and that interest was payable on Rs. 35,299-1-6 and the High Court had confirmed the decree holding that the amount of Rs. 35,299-1-6 was principal. The High Coun observed that it was not relevant to consider whether that deci~ion was right, because there wa~ no application for review of judgment. They then directed that "the interest will accordingly be calculated on Rs. 35,299-1-6 at 3% from October 5, 1936 till August 11, I 941 and at 4% from '\ugust 12, 1941 till November 10, 1946. This comes to R.s. 50,8 I0-4-6. The decree will be amended accordingly." Relying upon this direction, counsel for the appellants contended that the High Court by order dated March 31. 1947, restored for the period after Novemher I 0. 1946. the rate of interest as origi-nally awarded by the Court of First Instance. We are unable to hold that the direction is capable of that interpretation. By direct-ing that interest at the rate of 4% from August 12. 1941 to November JO, 1946. shall be calculated on Rs. 35.299-1·6, it was not, and could not be. intended by the High Court that interest after November 10, 1946, was to he awarded only at the rate of 3%. \'o such application was made bv the debtors. It was apparently contended that the amount of Rs. 35,299-1-6 a' claimed by the plaintiffs in the original suit included interest, and interest could be computed on the amount which formed the principal. The High Court, in view of the decree passed by the Trial Court and confirmed by it declined to enter into that con-troversy and indicated the manner in which the inte~t was lo be calculated between October 5, 1936 and November 10, 1946. The High Court did not reduce the' rate of interest lor the period ~fter November 10, 1946, i.e. the date fixed for redemptton of mortgage under the decree of the High Court.

Counsel then urged that in any event the mortgagees 3re not entitled to interest exceeding the principal. Reliance in this con-nection was placed upon the Madhya Pradesh Money Lenders Act 13 of 1934. Section 9 of that Act provides :

"Notwithstanding anything contained in any other enactment for the time being in force. no court original or appellate shall decree, in respect of any loan made

before this Act comes into force, on account of arrears of inter<:st, swn greater than the principal of such loan:·

The section prohibits the Courts from awarding interest exceeding the principal of the loan. Counsel for the appellants contends that if all the amounts deposited from time to time by the debtors be aggregated, it will l\ppear that an amount exceeding the 'Joan was paid. But the prohibition ol the statute is agains.t the making of decree for arrears of interest exceeding the amount 'of 10&11. In the present case the decree awards interest amounting to Rs. 746-30, whereas the principal is Rs. 33,866-51. Finally, it was contended that the Custodian of Evacuee Pro-perty is not entitled to claim decree absolute for sale, and only Mohammad Ayyub-one of the partners in the firm of Seth Haroon and Sons-may alone be given decree absolute in res-pect of his share. That contention is ·futile. The Court is con-cerned at this stage to pass decree absolute for sale in mort-D gage suit. It is not concerned to determine the respective rights of the mortgagees inter se . . The mortgagees' interest is fully re-presented befoi-e the Court. Whether or not the Custodian of Evacuee Property is· entitled to the money or tl!at the evacuees have subsisting interest is matter which cannot be decided in this appeal. That was made clear by .the judgment of the High Court in the application filed by the Custodian of Evacuee Pro-E perty by order dated November 12, 1962, when the High Court observed :

"Time has not come yet to determine this question and it is not necessary at this stage to decide what are the respective rights of the evacuees in the property which is before the Court as between the evacuee-F plaintilfs and the Custodian."

The appeal fails and is dismissed with costs.