Calcutta High Court
Prokash Chandra Ghose vs Hasan Banu Bibi on 4 August, 1914
Equivalent citations: 28IND. CAS.450, AIR 1915 CALCUTTA 699
JUDGMENT
1. This appeal is directed against in award in an apportionment case under the Land Acquisition Act. The facts necessary for the decision of the question of law raised before us may be briefly slated.
2. On the 28th September 1912, the appellant advanced Rs. 5,000 to the respondent on mortgage of four properties in Calcutta. The mortgage money was re-payable on the 28th September 1913, and carried interest at 12 per cent, per annum. One of the properties given by way of security was the subject-matter of a proceeding under the hand Acquisition Act. The statutory declaration for the acquisition of the hind had been published on the 2nd February 1912 and the award of the Collector made on the 20th September 1912. The record does not show whether the mortgagee was, at the time when he accepted the security, aware of the proceedings under the Land Acquisition Act, it is probable that he had no knowledge thereof, and the case has been tried on that assumption. On the 11th October 1012, the mortgagee applied to the hand Acquisition Judge that the money due under his mortgage, namely, Rs. 5,000 as principal and Rs. 600 as interest thereon for one year might he paid to him out of the compensation money. The mortgagee in substance wanted a return of the mortgage money together with interest for the full period of one year. The mortgagor did not contest the claim for the principal amount, but urged that she was not liable to pay interest for one year. It is needless to consider whether this question could have been considered in the course of the land acquisition proceeding; for no objection was taken by either of the parties, and it is in the interest of both that the question in controversy between them should now be finally settled. The hand Acquisition Judge has held that the mortgagee was entitled to interest only for one month, and has accordingly ordered the payment of Rs. 5,050 to him. The mortgagee is not satisfied and has appealed to this Court with a. view to obtain an additional sum of Rs. 550 as interest for eleven months on the loan.
3. On behalf of the appellant it has been argued that under the mortgage contract, he was entitled to interest for one year and that the mortgagor is bound to pay that sum even though the mortgage money is re-paid on an earlier date. In support of this contention reliance has been placed upon the decision of the Judicial Committee in the case of Bakhtawar Begam v. Husaini Khanam 23 Ind. Cas. 355 : 36 A. 195 : 18 C.W.N. 586 : 26 M.L.J. 474 : 19 C.L.J. 477 : (1914) M.W.N. 411 : 15 M.L.T. 389 : 165 Bom. L.R. 344 : 1 L.W. 813 : 12 A.L.J. 473. That case, however, is an authority only for the proposition that, ordinarily and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period. This principle is of no assistance to the appellant. It need not be disputed that the mortgagor is not entitled to redeem before the debt becomes due; and it was held in Brown v. Cole 14 Simons 427 : 14 L.J. Ch. 167 : 9 Jur. 290 : 60 E.R. 424 : 65 R.R. 618 that he is not entitled to redeem before the debt becomes due, even though he may offer to pay interest for the whole period See also Burrough v. Cranston 2 Ir. Eq. R. 203. Hut in the case before us, the contract between the parties cannot be performed according to its letter, by reason of circumstances beyond the control of the parties. No doubt, the mortgagor agreed to keep the money for one year; but that was on condition that the land should remain security for the loan during the term. The land, however, has been acquired and the mortgagee has lost a part of his security. As soon as this happened, the mortgagee applied for return of the mortgage money. The question consequently arises whether he is entitled to interest thereon for the whole of the term. We are clearly of opinion that the claim is unjust.
4. It is well-settled that if the mortgagee makes a demand for payment within the term, and the mortgagor complies, the mortgagee cannot insist upon payment of interest for the whole of the term. Reference may, in this connection, be made to the cases of Letts v. Hutchins (1871) 13 Eq. 176; In re Moss, Lery v. Sewill (1885) 31 Ch. D. 90 : 55 L.J. Ch. 87 : 54 L.T. 49 : 34 W.R. 59 and Smith v. Smith (1891) 3 Ch. 550 : 60 L.J. Ch. 694 : 65 L.T. 334 : 40 W.R. 32. Indeed, where the mortgagee has given notice requiring payment within the term, he cannot withdraw it without the consent of the mortgagor. Santley v. Wilde (1899) 1 Ch. 747 : 168 L.J. Ch. 747 : 168 L.J. Ch. 681 : 47 W.R. 297 : 80 L.T. 154 : 15 T.L.R. 190.
5. In the present case, the mortgagee might have called upon the mortgagor, under Section 68 of the Transfer of Property Act, to give additional security. He did not adopt that course, and claimed a refund of the money, to which the mortgagor consented. Under these circumstances, it is plain that the mortgagor was not bound to pay interest beyond the period of one month. Reliance has finally been placed upon the provisions of Sections 108 and 114 of the band Clauses Act, 1845, relating to the acquisition of mortgaged properties, it is sufficient to observe that the Indian Legislature has not framed similar provisions applicable to this country.
6. The result is that the decree of the Court below is affirmed and this appeal dismissed with costs. We assess the hearing-fee at ten gold mohurs.