Judgement Appeal from a decree of the High Court (January 14, 1905) affirming a decree of the Subordinate Judge of Dumka (September 4, 1901). The suit was for sale on a mortgage, dated July 27, 1885, to which the Sonthal Parganas Settlement Law Rep. 36 Ind. App. 85 ( 1908- 1909) Ram Chandra Marwari V. Rani Keshobati Kumari 23 Regulation III. of 1872 was applicable, and the amount claimed to be due on account of principal and interest was Rs. 33,698.9. The defen dants pleaded that the plaintiffs were not entitled to the decree sought by them for the reasons (1.) that there had been drawn out of Court on behalf of the plaintiffs a sum paid in, in 1895, under the Transfer of Property Act, s. 83, in full discharge of the mortgage debt, and (2.) that the mortgagor having, as was admitted, paid the amount of the principal, and also sums on account of interest equal to the principal, no further sum could be claimed under s. 6 of the said Regulation. Sect. 6 of the above Regulation as amended by Regulation V. of 1893, s. 24, is as follows " All Courts having jurisdiction in the Sonthal Parganas shall observe the following rules relating to usury— " (a) No compound interest arising from any intermediate adjustment of account shall be decreed. " (b) The total interest decreed on any loan or debt shall never exceed one-fourth of the principal sum if the period be not more than one year, and shall not in any other case exceed the principal of the original debt or loan." By the mortgage above mentioned Raja Udit Narayan Singh, who was the husband of the first respondent and the adoptive father of the second, mortgaged the lands in suit to Harbhakt Das, deceased, who was the father of the fourth appellant and the partner of appellants Nos. 1 to 3. The sum secured by the mortgage was Rs. 34,000, with interest at 1 per cent, per mensem, compound interest at the same rate to be paid in case of default. 1 to 3. The sum secured by the mortgage was Rs. 34,000, with interest at 1 per cent, per mensem, compound interest at the same rate to be paid in case of default. In 1886 a suit was brought for the dissolution of the partnership between the mortgagee and his partners, to whom part of the money advanced on the mortgage had belonged, and by virtue of various assignments executed in 1895 and 1896 in pursuance of the decree made in that suit on August 21, 1892, the appellants Nos. 1 to 3 became interested in various proportions in the interest of the mortgagee under the mortgage. Subsequently the mortgagee died, and the interest retained by him passed to the fourth appellant. Meanwhile, in August, 1895, the mortgagor, desirous of discharging the mortgage debt, paid into Court under the Transfer of Property Act, s. 83, the amount he admitted to be due, namely, Rs. 44,596.0.6, which together with the sums previously paid on account of interest amounted to Rs. 68,000. After this deposit was made a receiver was appointed in the partnership suit, and on September 23, 1896, the sum deposited was drawn out of Court by him. The Subordinate Judge dismissed the suit, holding that on the true construction of the Regulations the interest could not exceed the principal, and that, as the plaintiffs had been paid Rs. 68,000, no further sum could be decreed to them. In appeal Ghose and Pargiter JJ. agreed that the plaintiffs were entitled to recover compound interest, but differed in regard to the construction of the Regulations. Ghose J. was of opinion that the words " the total interest decreed on any loan shall not exceed the principal of the original debt or loan " meant the amount of interest for which a decree was given, not the amount of interest paid by a debtor in regard to which no claim was advanced in the suit and no decree given. Pargiter J., on the other band, was of opinion that in every case an account should be taken of all payments made by the debtor, and that on the true construction of the said section no further interest could be claimed as soon as the amount paid on account of interest was equal in amount to the principal. Pargiter J., on the other band, was of opinion that in every case an account should be taken of all payments made by the debtor, and that on the true construction of the said section no further interest could be claimed as soon as the amount paid on account of interest was equal in amount to the principal. He then dealt with the defence based on the proceedings under the Transfer of Property Act, s.83. Law Rep. 36 Ind. App. 85 ( 1908- 1909) Ram Chandra Marwari V. Rani Keshobati Kumari 24 In consequence of this difference of opinion the appeal was referred to the Chief Justice, who, after hearing argument, on June 14, 1905, expressed concurrence in the view of Pargiter J. as to the construction of the Regulation, but pronounced no opinion as to the effect of the proceedings under s. 83. De Gruyther, K.C., and Eddis, for the appellants, contended that on the true construction of Regulations III. of 1872 and XV. of 1793 they were entitled to recover the full amount claimed in their plaint. Reference was also made to Act XXVIII. of 1855. The interest decreed was not to exceed the principal. Past payments were not to betaken into account, for these might have been spread over many years, and the amount must depend upon the duration of the loan. Reference was made to Dhondu Jagannath v. Narayan Ramchandra (( 1862) 1 Bomb. H. C. 47, 48.), Nobinchunder Bannerjee v. Romeshchunder Ghose (( 1887) I. L. R. 14 Calc. 781, 789.), and Shamacharan Misser v. Chuni Lal Marwari. (( 1898) I. L. R. 26 Calc. 238.) It was contended that the amount claimed could not be reduced on equities suggested to arise in consequence of a deposit in Court under s. 83 of the Transfer of Property Act. There was no evidence that the amount paid into Court was the full amount due on the mortgage. On the contrary, it was objected at the time that the amount was insufficient. Under these circumstances it ought to be assumed that the receiver withdrew the money by consent as a payment on account; for otherwise, having regard to the terms of s. 83, it would have been an irregular proceeding which the Court would not have allowed. On the contrary, it was objected at the time that the amount was insufficient. Under these circumstances it ought to be assumed that the receiver withdrew the money by consent as a payment on account; for otherwise, having regard to the terms of s. 83, it would have been an irregular proceeding which the Court would not have allowed. The main defence was upon the construction of the Sonthal Parganas Regulations, and a purely technical defence ought to have been explicitly pleaded and relied upon. Reference was made to The Tasmania (( 1890) 15 App. Cas. 223.), and it was contended that a practically new contention could not be relied on in appeal unless all the facts bearing upon it had been fully investigated in the Court below and full opportunity given to the parties to explain the circumstances out of which it arose. Kenworthy Brown, for the respondents, contended that on the true construction of the Sonthal Parganas Regulations the appellants were not under the circumstances of the case entitled to a decree for the sum claimed or any part thereof. All previous payments of interest ought, as the High Court had held, to be taken into account, and as the appellants had admittedly received more than Rs. 68,000 their debt was fully discharged Gopal Ravi Chandra v. Gangaram Anandshet. (( 1895) I. L. R. 20 Bomb. 721.) Moreover they received out of Court the amount paid in by the mortgagors in full discharge of the mortgage debt under s. 83 of the Transfer of Property Act. The statutory result of their doing so was that it was satisfied. It was neither alleged nor proved that the money had been drawn out under any other conditions than those prescribed by the statute either by con sent of the mortgagors or by any order of Court operative for that purpose. The Court in the absence of such consent had no jurisdiction to permit its withdrawal in the manner contended for. Reference was made to Dal Singh v. Pitam Singh. (( 1902) 1. L. R. 25 Allah. 179.)] De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD ATKINSON. The Court in the absence of such consent had no jurisdiction to permit its withdrawal in the manner contended for. Reference was made to Dal Singh v. Pitam Singh. (( 1902) 1. L. R. 25 Allah. 179.)] De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD ATKINSON. This is an appeal from a decree of the High Court of Judicature at Fort William in Bengal, dated January 14, 1905, affirming a decree of the Subordinate Judge of Dumka, Sonthal Parganas, dated September 4, 1901, by which the suit of the plaintiffs (the appellants) was dismissed. The facts, so far as it is necessary to state them, are as follows. On July 27, 1885, Raja Udit Narayan Singh, since deceased, executed a mortgage of his taluqa of Kasba in favour of one Habhakt Das, now also deceased, for a sum of Rs. 34,000, bearing interest at the rate of 1 rupee per cent, per mensem. The mortgage deed contained a provision that, on default Law Rep. 36 Ind. App. 85 ( 1908- 1909) Ram Chandra Marwari V. Rani Keshobati Kumari 25 being made in the payment of interest at the stipulated dates, compound interest should be charged at the same rate, i.e., 12 per cent, per annum. At the date of the mortgage the mortgagee carried on the business of cloth merchant and money-lender at Bhagalpur and Calcutta in partnership with the first three appellants. On January 3, 1895, Harbhakt Das executed to his partner, the first appellant, a mortgage of the mortgaged lands and the money secured thereon. On June 11, 1896, he executed a similar mortgage in favour of Bansidhar Marwari, the second appellant. Harbhakt Das afterwards died, leaving the fourth appellant, his only son, him surviving. During Harbhakts lifetime disputes arose and suits were instituted between him and his co-partners in reference to the business of the partnership, and especially in reference to their respective interests in the moneys secured by the above-mentioned mortgage of Raja Udit Narayan Singh. The respondents are the widow and adopted son of the Raja, and a second in-cumbrancer on the mortgage deeds. Default having been made in the payment of the interest, compound interest became payable and was claimed by the mortgagee. The respondents are the widow and adopted son of the Raja, and a second in-cumbrancer on the mortgage deeds. Default having been made in the payment of the interest, compound interest became payable and was claimed by the mortgagee. Large sums were from time to time paid by the mortgagor in discharge of it, and ultimately, on October 27, 1890, arrears of interest amounting to Rs. 11,829.14.6 were discharged by a payment of Rs. 2606.11.6 in cash and the execution by the mortgagor of a new bond (roka) for Rs. 9223.3.0 with interest at the same rate, i.e., 1 rupee per cent, per mensem. The interest which had accrued due up to this date, and was discharged by payments in cash and the execution of the above-mentioned roka, amounted altogether to Rs. 23,403.15.6. Towards the end of July, 1895, the mortgagor, being anxious to redeem the mortgage, sent one Banwari Lal Panrey to the mortgagee to tender to him a sum of something over Rs. 44,000 in full discharge of the only amount the mortgagor alleged to be then recoverable on his bond. This particular sum was fixed upon because it amounted to the difference between Rs. 68,000 (double the principal sum advanced) and the amount already paid in respect of interest; and the contention of the mortgagor was that under s. 6 of Regulation III. of the Sonthal Parganas Settlement Regulations, 1872 (as amended by Regulation V. of 1893), which would admittedly apply to any suit brought to recover this interest, the most that could be recovered from him was Rs. 34,000, a sum equal to the principal money lent. The decision both of the Subordinate Judge and of the High Court turned upon the construction of this Emulation. Banwari Lal, whose evidence is uncontradicted, states that Harbhakt Das had no objection to receive the money apparently in full discharge, and to give a receipt for it, but that, on the witnesss insisting on obtaining delivery of the bond, with the receipt indorsed on the back of it, in exchange for the money, Harbhakt Das stated that his partners had the bond, that they were on bad terms with him, and that he could not obtain possession of it. The witness states that he the eupon refused to pay the money, and that Harbhakt Das asked him to deposit it in Court. The witness states that he the eupon refused to pay the money, and that Harbhakt Das asked him to deposit it in Court. The mortgagor accordingly presented a petition to the Court of the Subordinate Judge of Dumka, under tie provisions of s. 83 of the Transfer of Property Act, 1882, praying for liberty to deposit in Court, in favour of the persons entitled to the mortgagees interest, the sum of Rs. 44,596.0.6, and for a return of the bond. Upon this petition an order was on August 17, 1895, made to the following effect " As apparently the suit, if put in, would not be barred, the amount will be received under s. 83, Act IV. of 1882, and deposited, and a written notice will issue to the mortgagee to take the amount." In paragraph 7 of the plaint in the present suit it is stated that the Court of the Subordinate Judge issued a notice to the plaintiffs requiring them to take out the sum deposited. It is further stated, in paragraph 8, that the plaintiffs, on receipt of this notice, informed the sub-divisional officer of Dumka that the amount deposited was insufficient, that an erroneous calculation had been made, and requested him to require the mortgagor to deposit the balance of the money due over and above the sum lodged. It is not now disputed that the mortgagor was entitled under this Act to make the deposit, Law Rep. 36 Ind. App. 85 ( 1908- 1909) Ram Chandra Marwari V. Rani Keshobati Kumari 26 and that, upon his doing so, the rights of the mortgagee, or those representing him, were as follows. He was entitled, on presenting a petition (verified in the manner prescribed) stating the amount due on the mortgage and his willingness to accept the money deposited in full discharge of this amount, and, in addition, on depositing in the Court in which the money was lodged the mortgage deed, if then in his possession or power, to apply for and receive the money. And, under s. 84 of the Act, interest on the principal moneys ceased to run from the date of the tender, or as soon as the mortgagor had done all that has to be done by him to enable the mortgagee to take the money deposited out of Court, as the case might be. And, under s. 84 of the Act, interest on the principal moneys ceased to run from the date of the tender, or as soon as the mortgagor had done all that has to be done by him to enable the mortgagee to take the money deposited out of Court, as the case might be. The money deposited was permitted to lie in Court till September 23, 1896. It was then, by some manoeuvre or contrivance, upon which the appellants, for reasons best known to themselves, have deliberately abstained from letting in the light, drawn out by their agent and applied to their own use. In the statement of account attached to their plaint the appellants no doubt credit the respondents with the sum so drawn out as a payment made on the day on which it was drawn out, but interest was charged at the rate of 12 per cent, for the eleven months on the entire sum shewn to be due on August 17, 1895. On February 7, 1900, the suit out of which this appeal arises was instituted, praying for the recovery of Rs.33,698.9—of which Rs. 22,859.5 is the balance that remained due at the time when credit was given for the sum paid in, the remainder representing compound interest, calculated from that date till the commencement of the action—and, in default of payment, for the sale of the property mortgaged. The only information given by the appellants as to the steps taken by them to draw out, in violation of the above-mentioned provisions of the Transfer of Property Act, the money deposited is contained in paragraphs 9 and 10 of their plaint, and in the evidence of Ram Chandra Marwari, the principal plaintiff. Prom the former it appears that the appellants presented a petition to the High Court at Fort William for the appointment of a receiver for the withdrawal of the money from the Court of the Subordinate Judge; that on June 26, 1896, an order was made on this petition appointing a receiver with all the powers conferred by s. 503 of the Civil Procedure Code; and, lastly, that the receiver so appointed, after various attempts, at last succeeded in withdrawing the fund from Court. But neither the petition nor the order is printed in the record, nor is any information afforded as to the precise nature of the persistent and, unfortunately, successful efforts of the receiver to defeat the law, while the evidence of Ram Chandra Marwari contains many important admissions. In the course of his cross-examination this witness says that in his petition to the High Court he stated " that in the latter part of July, 1895, the Raja was prepared to pay the whole amount due on the bond in suit, but that Harbhakt prevented his paying it, and that thereupon the said Raja had deposited the money in the Court of the Subordinate Judge of Dumka." No doubt he states in his cross-examination that he did not in his petition " admit that the Rs. 44,000 deposited by the Raja was in full payment of our dues." It is apparent from this evidence that the receiver was appointed solely because Harbhakt and his partners, owing to their quarrels, would not join in an application to draw out the money deposited. There is nothing to shew that the receiver was clothed with any right or authority in reference to the money, or the withdrawal of it from Court, other than or different from that which belonged to those on whose behalf he was appointed. As they were bound to comply with the requirements of the statute under which it was paid into Court, so was he. It was not contended, it could not be contended with any show of reason, that either the High Court or the Subordinate Judge had, save with the consent of the mortgagor or his representatives, any jurisdiction to permit the money deposited Law Rep. 36 Ind. App. 85 ( 1908- 1909) Ram Chandra Marwari V. Rani Keshobati Kumari 27 to be drawn out of Court on any terms other than those imposed by the statute. There is no proof that either of those Courts ever made an order purporting to exercise such a power, while there is not a particle of evidence to shew that the mortgagor, or those who succeeded him, ever gave any consent, express or implied, to the money being drawn out in part discharge, as opposed to full discharge, of his, or their, liability on the bond. There is no proof that any demand was made on the mortgagor after the money was paid into Court, and it is admitted that nothing was paid in respect of the mortgage, either for principal or interest, since that date. It is not suggested that the present is not the first suit instituted to recover airy portion of it. In the cross-examination of Ram Chandra Marwari the following passage occurs " When notice was sent us of the deposit, we sent a petition of objection to this Court. We did not get any reply to this objection. I have not filed a copy of the objection, nor have I called for the original." This is the only evidence going to shew that any objection was made to accept the sum of Rs. 44,000 in full discharge of the mortgage debt. Yet after a delay of close upon four-and-a-half years, i.e., from August 17, 1895, the date of the deposit, till February 1, 1900, the date of the institution of this suit, and in face of this evidence, Mr. De Gruyther, on behalf of the appellants, invites their Lordships, notwithstanding the state of ignorance of the actual facts in which his clients have deliberately left them, to assume that the deceased Raja assented to the receivers drawing the money out of Court, in part satisfaction of the formers liability—because, it is said, the receiver could not have obtained it otherwise without violating the law—or, if not, to send the question back for further inquiry to the Subordinate Judge. In their Lordships opinion they can make no such assumption as that suggested. The assumption which they are entitled to make, and indeed bound to make, is precisely the opposite. The Act provides that money lodged, as this was, " in full discharge " of a liability can only be drawn out by a creditor in full discharge of that liability. The agent of the appellants appointed ad hoc drew out this money. It is for them to shew that he acted under such conditions that the statutory result does not follow from his act. If they fail to do this, as they have failed in the present case, then there is nothing to defeat or modify the operation of the statute, and the consequences must be those which it prescribes. Mr. It is for them to shew that he acted under such conditions that the statutory result does not follow from his act. If they fail to do this, as they have failed in the present case, then there is nothing to defeat or modify the operation of the statute, and the consequences must be those which it prescribes. Mr. De Gruyther objected to their Lordships considering this question, on the ground—quite legitimate if well founded—that the defendants rested their defence solely on s. 6 of the above-mentioned Regulation, and that the question of the circumstances under which the receiver drew out the money, or the legal consequences of his doing so, was not in issue in the suit. It is quite true that no issue has been framed in which the fact of the withdrawal is specifically mentioned. But the second issue is quite wide enough to cover it. The issue runs thus " Are the plaintiffs entitled to recover more than Rs. 68,000, the amount they admit having received ? " This issue, as framed, leaves it open to the defendants to contend that the plaintiffs are not entitled to recover more than Rs. 68,000, either because s. 6 prohibits it, or because they have received " in full discharge " the sum paid into Court. And in the statements contained in paragraph 7 of the written statement of the first defendant, and in paragraph 5 of that of the second defendant, as well as in the evidence of Ram Chandra, Bansidhar, and Banwari Lal, it is distinctly put forward that the sum of Rs. 44,000 was tendered by Banwari in full satisfaction of the bond, and that both Harbhakt and Ram Chandra were, apparently, willing to accept it as such. In the memorandum of appeal filed in the High Court by the appellants the second of the three grounds of appeal against the decision of the Subordinate Judge set forth runs as follows " 2. For that the Court below has erred in holding that the receipt of the amount already paid operated as a bar to the recovery of the amount in claim." Law Rep. 36 Ind. App. 85 ( 1908- 1909) Ram Chandra Marwari V. Rani Keshobati Kumari 28 It cannot, therefore, be contended that the plaintiffs had not notice that the receipt of the money deposited would be relied on as a defence. 36 Ind. App. 85 ( 1908- 1909) Ram Chandra Marwari V. Rani Keshobati Kumari 28 It cannot, therefore, be contended that the plaintiffs had not notice that the receipt of the money deposited would be relied on as a defence. Their Lordships are therefore of opinion that the plaintiffs must be held bound by the act of their agent, with all its results ; that if he has omitted to perform any of the conditions necessary to entitle him, on their behalf and for their use and benefit, to draw this money out of Court, they cannot rely upon his default in this respect to escape from the consequences which would of necessity have followed the withdrawal, if everything prescribed by the statute had been rightly done; and that the money drawn out must therefore be held to have been drawn out in full discharge of the mortgagors liability. The sum now sued for is, consequently, not due, and the suit must accordingly be dismissed. The conclusion at which their Lordships have arrived on this point is in itself sufficient to dispose of the appeal, and renders it unnecessary for them to express any opinion on the proper construction of s. 6 of the third Sonthal Parganas Regulation. They will therefore humbly advise His Majesty that the appeal should be dismissed. The appellants must pay the costs of the appeal.