Ram Lal Singh v. Harihar Prasad Sah — 1954 DIGILAW 14 (PAT)

Judgment 1. This appeal is presented on behalf of the, defendants against the judgment and decree of the Subordinate judge of Chapra dated 25-3-1947. 2. On 13-12-1937 the plaintiff Fatah Bahadur Sah executed a registered deed of sale in favour of the defendants in respect of certain milkiat interest of Mouza Salempur, Dahiawan, Sandha and other villages for a consideration of Rs. 28,000. It was agreed between the parties that out of the amount of consideration a sum of Rs. 6000 should be paid to the mortgagees Babu Kailashpati Singh and Bindeshwari Prasad, benamidars of Bhagwat Prasad Singh. The two mortgage deeds in this case were dated 4-1-1928 and 5-10-1926. Item 2 was a sum of Rs. 7700 due to Awadh Prasad Sahu and Jagdish Prasad Sahu on the basis of a mortgage bond dated 6-6-1925. Item 3 was a sum of Rs. 4751 due on the basis of a mortgage bond dated 27-9-1934 and payable to Jagdawan Singh. Item 4 was a sum of Rs. 750 due on a handnote payable to Pandit Deonarain. Item No. 5 was a sum of Rs. 400 due to Sita Ram Sahu on the basis of a handnote and the sixth item was a sum of Rs. 150 due to Kuer Lal on the basis of a handnote. The total amount covered by these documents was therefore a sum of Rs. 19751. It is stated in the sale deed that a sum of Rs. 8249 was set off in favour of the vendee on account of the mortgage bond executed by the vendor on 27-9-1926. The Bihar Money Lenders Act was enacted by the State Legislature in the year 1938 and one of the provisions of this Act was that no creditor was allowed to realise interest in excess ofthe principal amount. After the passing of this Act the plaintiff served a notice upon the defendants asking them not to pay the creditors more than the double amount of the principal for the respective items. The notice is dated 3-2-1944. 3. On the basis of these facts the plaintiff brought the present suit for recovery of Rs. 7598 as principal and Rs. 2052 as interest from 4-12-1942 uptil 3-12-1945 at the rate of 9 per cent per annum. The notice is dated 3-2-1944. 3. On the basis of these facts the plaintiff brought the present suit for recovery of Rs. 7598 as principal and Rs. 2052 as interest from 4-12-1942 uptil 3-12-1945 at the rate of 9 per cent per annum. The case of the plaintiff is that this was the surplus amount out of the purchase money kept in the hands of the defendants who are liable to refund the same. According to the case of plaintiff the surplus amount of Rs. 7598 was made up as follows (1) Rs. 1600 as surplus amount of item No. 1, (2) Rs. 47 as surplus amount of item No. 2, (3) Rs. 615 as surplus amount of item No. 3, and (4) Rs. 683 out of the surplus amount kept as set off. 4. The defendants contested the suit on the ground that they had paid off all the creditors before the date of notice except with respect of item No. 1. It was said on their behalf that Bhagwat Prasad Singh brought a mortgage suit on the basis of two mortgage bonds in which the defendants and the plaintiff were both impleded. The defendants alone contested the suit which was decreed by the trial court. An appeal was preferred by the defendants to the High Court and the decree of the trial court was modified to a certain extent. After the passing of the final decree the defendants paid up the decretal amount and their contention is that they had met the expenditure incurred in the litigation and the creditor was not entitled to refund of the surplus money. 5. The Subordinate Judge upon a consideration of the evidence adduced in the case held that the plaintiff was entitled to refund for a sum of Rs. 1600 out of item No. 1 which was the claim of Bhagwat Prasad Singh. The other items were disallowed by the Subordinate Judge. 6. This appeal is preferred by the defendants from the decision of the Subordinate Judge. The plaintiff has filed a cross-objection with respect to item No. 2 and his claim is that he is entitled to refund of Rs. 4700 which was the surplus amount in the hand of the defendants. 7. In support of the appeal the first contention put forward by Mr. The plaintiff has filed a cross-objection with respect to item No. 2 and his claim is that he is entitled to refund of Rs. 4700 which was the surplus amount in the hand of the defendants. 7. In support of the appeal the first contention put forward by Mr. A.S. Sinha is that the plaintiff was not entitled to refund of the excess money in the hand note of the defendants since according to the contract between the parties there was No. legal justification for holding that the amount left with the defendants was in the character of unpaid purchase money. The argument is that the contract was a contract of indemnity and the properties were sold by the plaintiff in favour of the defendants subject to the encumbrances imposed by the several documents. In such a case it was argued that the plaintiff would not be entitled to any benefit conferred by passing of the Bihar Money-lenders Act. It was stated that after the completion of the purchase the defendants were not in any way trustees for the vendor for the amount of excess purchase money which they may possess in their hands; in other words, the contention put forward on behalf of the appellants is that after the purchase was completed the vendor had no claim to participate in any benefit which the purchaser may derive from his purchase. In support of this argument counsel relied upon -- Izzatun-nissa Begum V/s. Kuhwar Pertab Singh, 31 All 583 (A), -- Shiva Subramania V/s. Gnanasammanda, 10 Ind Gas 98 (Mad) (B), --Kaliyammal V/s. Kolandavela Goundar, AIR 1918 Mad 1135 (C) and -- Ram Barai Singh V/s. Mohendra Prosad, 16 Cal WN 1040 (D). 8. The argument of the learned counsel would have been valid if the properties mortgaged in the present case " were identical with the properties which have been sold in favour of the defendants. That is the whole basis upon which the argument on behalf of the appellants is built up. But upon examination of the evidence in this case we find that the properties which had been mortgaged are not identical with the properties which were the subject-matter of the sale deed dated 13-9-1937 executed by the plaintiff. The properties are described at page 21 of the paper-book as follows: Tauzi No.RevenueCessEmbankment cessTotal 948/29 Mouza. (Illeg.)Rs. 4/-/6 Rs. 7/--Rs. 11-/6. 8587 Entire Mouza Rampur KeshoRs. 9/1/6Rs. The properties are described at page 21 of the paper-book as follows: Tauzi No.RevenueCessEmbankment cessTotal 948/29 Mouza. (Illeg.)Rs. 4/-/6 Rs. 7/--Rs. 11-/6. 8587 Entire Mouza Rampur KeshoRs. 9/1/6Rs. 4/3/6Rs. /4/9 8639 Mahmadda BisansamaraRa. 17/14/-Rs. 6/11/-Rs. -/7/- 884 Sundha Larahpurln proportion to the share 3587/4 House ChapraIn proportion to the share 9. The description of the properties mortgaged is given in the final decree of the High Court at p. 28. These properties are as follows: (9) "Description of the mortgaged property covered by the mortgage bond, dated 5-10-1926 for Rs. 1,199. Extent of ShareMouzaTauzi 2 annas 6 pies pokhtaBampur Kesho otherwise called Ghoghrah perganaFormer tauzi No. 2751, present taazi No. 8583 allotted 16 annas share on partition 2 annas 6 piesSigaini, pergana GoaTaazi No. 2700 4 annasSandha, pergana BalTauzi No. 884 Description of the mortgaged property covered by the mortgage bond, dated, 4-12-1928 of Rs. 1000 1 anna & 4 pies pokhta the kham of which is 4 annasMouza Sarha pergana BalTauzi No. 948 4 annasSarha, pergana Bal AccountTauzi No. 384. Amount of mortgagemoney decreedRs. 3320.00 Interest pendente lite at 9 p. c. p. a from 16-7-38 to 3-3-1943Rs. 1384/-6/6 TotalRs. 4704/6/6 10. It is manifest that there is no similarity between the properties given in the mortgage decree and in the sale deed except for tauzi No. 948/29 and tauzi No. 884. In the sale deed the description of tauzi No. 948/29 is illegible and of tauzi No. SS4 is Sundha Larahpur. In the final decree the description is 4 annas share of Mouza Sandha pergana Bal, touzi No. 884, and 1 anna and 4 pies share of Mauza Sarha, Pergana Bal, tauzi No. 948. It was contended on behalf of the appellants that at least with respect to these two tauzis there was similarity. But we are unable to find out upon the evidence adduced in this case whether this contention is correct. The duty was in any case upon the appellants to establish the facts upon which the legal argument is based. Since the factual basis is wanting we must reject the argument advanced on behalf of the appellants that the properties which are the subject-matter of the sale deed were sold subject to the mortgages existent and that the position of the appellants was not the position of trustees for the unpaid purchase money lying in their hands. Since the factual basis is wanting we must reject the argument advanced on behalf of the appellants that the properties which are the subject-matter of the sale deed were sold subject to the mortgages existent and that the position of the appellants was not the position of trustees for the unpaid purchase money lying in their hands. Upon a proper construction of the sale deed we must take it that the appellants were in the position of trustees for the unpaid purchase money and they were liable to refund the excess amount in their hands with respect to item No. 1 that is to say, the mortgage money payable to the mortgagee Bhagwat Prasad Singh. The reason is that there is a fiduciary relationship between the parties as regards the unpaid purchase money and there was a duty therefore cast upon the appellants to refund any benefit which they had derived after the passing of the Bihar Money-lenders Act. The argument addressed on behalf of the appellants on this point must be rejected. 11. The second contention of Mr. A.S. Sinha is that the lower Court waff wrong in holding that interest should be paid from 4-12-1942 which is the date of the High Court judgment in the mortgage suit brought by Bhagwat Pd. Singh. The argument of the learned counsel is that interest was liable to be paid from 5-4-1944, which was the date of the final decree. There is no substance in this argument. We nevertheless think that the question of interest must be decided on the legal ground that there being no stipulation for interest in the contract, exhibit C, the defendants were not liable to pay interest either from 4-12-1942 or from 5-4-1944. The principle has been laid down by the Judicial Committee in -- B.N. Rly. Co., Ltd. V/s. Ruttanji Ramji, AIR 1938 PC 67 (E). It was held in that case that in the absence of any usage or contract express or implied, or of any provision of law to justify the award of interest on the decretal amount for the period prior to the institution of the suit, the plaintiff was not entitled to interest for that period by way of damages caused to him for wrongful detention of the money by the railway company. An argument was advanced before the Judicial Committee that interest could be recovered by way of damages under Section 73, Contract Act, where it was not recoverable under the Interest Act. This argument was rejected and it was held that Section 73 was merely declaratory of the common law as to damages and that interest could not be allowed by way of damages for wrongful detention of debt Applying the principle to the present case we hold that the plaintiff is entitled to interest only from 3-12-1945 at the rate of 6 per cent, per annum and that he is not entitled to interest for any period prior to 3-12-1945. 12. The last contention on behalf of the appellants is that the amount of the decree should be not Rs. 1600 but Rs. 1273/12/-. Counsel on behalf of the appellants referred in this connection to the final decree printed at page 30 of the paper-book that the decretal amount was Rs. 4704/6/6 and the cost payable to the plaintiff of that suit was Rs. 21-13-6, that is, the total amount of the decree was Rs. 4726/4/-. If this . amount is deducted from Rs. 6000/-, the balance would be Rs. 1273/12/- and the argument on behalf of the appellants is that this is the correct amount for which the suit should have been decreed. We think that this argument is right and the plaintiff is entitled. to a decree only for Rs. 1273-12-0 with interest at the rate of 6 per cent, from 3-12-1945 as we have already stated. 13. The cross-objection which has been filed on behalf of the respondent has not been pressed. We accordingly reject it. 14. For the reasons expressed we allow this appeal to the extent indicated above and the decree granted by the lower Court is modified accordingly. There will be no order as to the costs of this appeal.