JUDGMENT 1. THESE two appeals, one at the instance of the plaintiff, the United Bank of India, and the other at the instance of the defendants excepting the defendants nos. 8 and 9 arise out of a suit for mortgage and recovery of money. 2. THE defendant No. 1 Narendra Krishna Roy, since deceased, the defendant no. 2, Khagendra Krishna Roy, the defendant no. 3, Nripendra Krishna Roy and one Harendra Krishna roy, since deceased, were brothers. The defendant no. 4, Suhas and the defendants nos. 5-7 are the sons of the said Harendra Krishna Roy. The defendants nos. 2 and 4, that is, Khagen and Suhas carried on a business under the name and style of Licensees Maharajah cossim bazar China Clay Mines. In connection with the said business, they opened an account with the Bengal Central Bank Limited, now known as the United Bank of India Limited, and the Bank allowed them cash credit loan against bills in their account with the Bank at an interest of 12% per annum with monthly rent. It appears that on February 11. 1933, a mortgage was executed by the defendants nos. 1, 2 and 3 and the said Harendra Krishna roy in respect of the properties described in Schedule A to the plaint and also in respect of premises no: 57, Raja Nabakrishna Street, Calcutta in favour of the Bank as security for repayment of further advances that might be made by the Bank to the defendants nos. 2 and 4. Again, on March 9, 1933, there was a mortgage by deposit of title deeds in respect of the property described in Schedule B to the plaint. It is alleged by the plaintiff Bank that in 1945 the dues in the account standing in the names of the defendants nos. 2 and 4 amounted to Rs. 12038/l4/10p. The said four brothers and the defendants nos. 4-7 executed a registered indenture of mortgage in favour of the plaintiff Bank in respect of the properties described in Schedules A and B to the plaint. It may be stated here, that the properties described in Schedule A belonged to the four brothers, but the property in Schedule B belonged to Harendra Krishna Roy and one Sisir Mukherjee, each having a moiety share. Further, it may be stated that the defendant no. 2 retired from the business in 1938 and it was the defendant no. It may be stated here, that the properties described in Schedule A belonged to the four brothers, but the property in Schedule B belonged to Harendra Krishna Roy and one Sisir Mukherjee, each having a moiety share. Further, it may be stated that the defendant no. 2 retired from the business in 1938 and it was the defendant no. 4 Suhas who had been carrying on the said business. In 1951-52, the property described in Schedule B was acquired by the Government under the Land Acquisition act, 1894. It is alleged that no notice under Section 9 was served upon the plaintiff Bank, although the L. A. Collector was aware of the fact that the plaintiff Bank was the mortgage in respect of that property and, as such, a person interested. The compensation awarded in respect of the Schedule B property was paid to the defendants by the L. A. Collector. In May, 1953 the plaintiff came to know for the first time about the acquisition and payment of compensation money in respect of the Schedule B property to the defendants. It is contended that due to the act and omission of the L. A. Collector, the plaintiff has suffered serious loss. Accordingly, the plaintiff Bank claims to recover its dues under the mortgage out of the compensation money paid to the defendants, from the State Government and the L. A. Collector who are the defendants nos. 8 and 9 respectively. The plaintiff has prayed for a decree for a sum of Rs. 25,323/217p against all the defendants, for a mortgage decree for sale of the properties described in Schedule A to the plaint and for a personal decree, if and when asked for on account of insufficiency, etc. 3. THE defendants entered appearance in the suit and contested the same by filing separate written statements. The principal defence of the defendants excepting the defendants nos. 8 and 9 was that the suit was not maintainable against them, that it was bad for defect of parties and that the mortgage bond was vitiated by undue influence. On behalf of the defendants nos. 8 and 9, that is, the State of West Bengal and that L. A. Collector, it was contended that they were not at all liable for the compensation money wrongfully received by the remaining defendants. 4. On behalf of the defendants nos. 8 and 9, that is, the State of West Bengal and that L. A. Collector, it was contended that they were not at all liable for the compensation money wrongfully received by the remaining defendants. 4. THE learned Subordinate Judge, berhampore, came to the findings that the suit was maintainable and that it was not vitiated by undue influence, as alleged. He, however, came to the finding that the defendants nos. 8 and 9 were not liable for the amount claimed by the plaintiff Bank. In these circumstances, he decreed the suit in preliminary form against the defendants excepting the defendants nos. 8 and 9 against whom the suit was dismissed. Hence these two appeals. Mr. Lala, learned Advocates appearing on behalf of the plaintiff Bank submits that the learned Subordinate Judge was not justified in holding that the defendants nos. 8 and 9 were not liable to the plaintiff Bank. It appears that, Harendra and his co sharer, the said Sishir Kumar Mukherjee, made a claim for compensation before the L. A. Collector in respect of the acquired B Schedule property. In paragraph 7 of the claim petition it was stated that the moiety share of Harendra, was mortgaged with the United Bank of India Ltd., formerly the Bengal Central Bank Ltd. Much reliance has been placed on this statement in the petition and it has been argued on behalf of the plaintiff appellant that it came to the notice of the Collector that the plaintiff Bank was a person interested and, as such, he should have issued to the plaintiff a notice tinder Section 9. The L. A. Collector, who dealt with that petition has been examined. It has been stated by "him that the claim petition was moved before him, but the lawyer who moved the same did not mention the mortgage. He has, however, frankly admitted that he did not read the claim petition. Be that as it may, it appears that the L. A. Collector was to some extent careless. But the question is whether non-service of a notice under Section 9 would make the defendants nos. 8 and 9 liable for the compensation money wrongfully received by the other defendants. In Secretary of State for India and another v. Kuppuswami Chetti, A. I. R. 1924 Madras 521, and similar question arose. But the question is whether non-service of a notice under Section 9 would make the defendants nos. 8 and 9 liable for the compensation money wrongfully received by the other defendants. In Secretary of State for India and another v. Kuppuswami Chetti, A. I. R. 1924 Madras 521, and similar question arose. There also no notice was served by the L. A. Collector upon the mortgage although he was aware that the acquired property was under a mortgage. The mortgage sued the Secretary of State and the Collector. It was, however, held by the Madras High Court that the Crown was not liable and that there was no cause of action against the Secretary of State or the L. A. Collector. The relevant provision in the Land Acquisition Act is the last proviso to Section 31 (2. The question whether the person lawfully entitled to the compensation money paid to a wrong person is entitled to get a refund of the same from the Government came up for consideration before Bijan Kumar Mukherjee, J. in Hemanta Kumar Bannerjee and others v. Satish Chandra Banerjee and others, A. I. R. 1941 Cal. 635. It was held by His Lordship that the said proviso to Section 31 (2) apparently contemplates a civil suit, and it does not create a right to pet a refund of the money but simply recognizes the right which exists independently of the Section. In our opinion, the learned Subordinate Judge was correct in his view in overruling the contention of the plaintiff Bank that the defendants nos. 8 and 9 were not liable. At this stage, a, significant fact may be noticed. Although it was alleged by the plaintiff Bank that it was not aware of the acquisition proceeding, it appears from Ext. A (1), which is a letter dated May 6, 1952 written by the Bank to Messrs. Maharaja Cossimbazar China Clay Mines, that the plaintiff Bank was aware of the acquisition proceedings. It, however, did not move in the matter for the purpose of putting forward its claim for compensation before the L. A. Collector. In these circumstances, there is no substance in the contention made on behalf of the plaintiff that the defendants nos. 8 and 9 axe liable to pay to the plaintiff Bank such portion of the compensation money which would satisfy its mortgage dues. In these circumstances, there is no substance in the contention made on behalf of the plaintiff that the defendants nos. 8 and 9 axe liable to pay to the plaintiff Bank such portion of the compensation money which would satisfy its mortgage dues. That is the only point that has been argued on behalf of the plaintiff appellant in connection with its appeal before us. 5. NOW we may consider the contentions of the remaining defendants. Some new points have been urged by Mr. Dasgupta, learned Advocate appearing on behalf of the defendants appellants in support of their appeal. It has been argued that the mortgage (Ext. 1) is not enforceable against the defendants, for it is not really a mortgage but a guarantee within the meaning of Section 126 of the Indian Contract act. In Ext. 1, it has been stated that the loan was taken by the defendant no. 4 Suhas for the purpose of the said business and the said brothers, namely, the father and the uncles of Suhas being very much interested in the welfare of Suhas, they executed the mortgage for the cash credit loan advanced to him. At the time the mortgage was executed, admittedly, Suhas had no interest in the mortgaged properties. Accordingly, it is contended that Suhas was the principal debtor and the remaining defendants, although described as mortgagors and although they admitted that all of them were mortgagors they were really in the position of guarantors and the document (Ext. 1) was, in substance, a document of guarantee. Much reliance has been placed on Section 126 of the Indian Contract Act. Section 126 is as follows : "a "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the "surety"; the person in respect _ of whose default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the "creditor. " A guarantee may be either oral or written. " It is clear from the above section that there is no question of transferring any interest in any property for the purpose of the guarantee that may be given. The guarantor will be liable in case of the default of the principal debtor. " A guarantee may be either oral or written. " It is clear from the above section that there is no question of transferring any interest in any property for the purpose of the guarantee that may be given. The guarantor will be liable in case of the default of the principal debtor. It may be an oral promise made by the guarantor or the surety. But a mortgage stands on a, completely different footing. It is a transfer of property. Section 58 (a) may be referred to in this connection : "a mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage money, and the instrument (if any) by which the transfer is effected is called a mortgage deed. " A mortgage cannot be conceived of without the transfer of the property on to be mortgaged. It is not a mere promise to perform any act but it contemplates the transfer of a property in present in favour of the mortgagee. It is, however, contended by Mr. Dasgupta that there cannot be any mortgage for the repayment of a loan made to a person other than the mortgagor. He submits that as the loan was advanced to the defendant no. 4 Suhas, who had no interest in the properties In suit, his father and uncles, who were the owners of the properties, could not effectively grant a mortgage of their properties in favour of the plaintiff Bank. This contention, in our opinion, is without any substance whatsoever. Section 58 (a) or the other clauses of Section 58 do not provide any such proposition, as urged on behalf of the appellants. The Ext. 1, the mortgage document, satisfies all the requirements of Section 58 (a) and Section 58 (b), which is a provision for a simple mortgage. By Ext. Section 58 (a) or the other clauses of Section 58 do not provide any such proposition, as urged on behalf of the appellants. The Ext. 1, the mortgage document, satisfies all the requirements of Section 58 (a) and Section 58 (b), which is a provision for a simple mortgage. By Ext. 1, the mortgagors bound themselves to pay the mortgage money and agreed that in the event of their failing to pay according to the contract, the mortgagee would be entitled to cause the mortgage properties to be sold and the proceeds of sale to be applied in payment of the mortgage money. In that view of the matter, it is not necessary to further dilate on the point. 6. NEXT it has been argued that the present suit is barred by Section 67a of the Transfer of Property Act which provides that "a mortgagee who holds two or more mortgages executed may the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67, and who sues to obtain such decree any one of the mortgages, shall in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due". Relying on the provision of Section 67a, it is argued that as there were previous two mortgages and all the mortgages not having been enforced in this suit, the suit is not maintainable. The proviso of Section 67a has been made subject to the contract to the contrary. In paragraph 9 of Ext. 1, it has been impliedly stipulated that the mortgagee shall be entitled to sue on the mortgage created by Ext. 1. Paragraph 9, therefore, provides for a contract to the contrary and, as such Section 67a is inapplicable. This argument is, therefore, rejected. A contention was made before the trial court that the interest charged was excessive and that the transaction of mortgage was unfair. The trial court, however, after considering Section 3 of the Usurious Loans Act, 1918, on which reliance was placed on behalf of the appellants, rejected the said contentions including that the transaction was unfair. The same contention has been repeated before us and Mr. Dasgupta submits that in view of Section 3, it must be held that the interest charged by the plaintiff Bank is excessive. The same contention has been repeated before us and Mr. Dasgupta submits that in view of Section 3, it must be held that the interest charged by the plaintiff Bank is excessive. Section 3 no doubt provides that the court can grant certain reliefs if the interest is excessive and if the transaction between the parties is unfair. But the question is whether the interest charged by the plaintiff Bank is at all excessive. Clause (b) of sub-section (2) of Section 3 provides that in considering whether interest is excessive, the Court shall take into account any amounts charged or paid, whether in money or in kind, for expenses, inquiries, fines, bonuses, premia, renewals corn any other charges, and if compound interest is charged, the periods at which it is calculated, and the total advantage which may reasonably be taken to have been expected from the transaction, No evidence on behalf of the defendants has been given showing in proof of their contention that the interest charged was excessive. Before us there is no material upon which we can place reliance for the purpose of holding that the interest was excessive in accordance with clause (b) of sub-section (2. The defendants have examined some witnesses, but none of them has made any such allegation in their evidence nor have they given any particulars whatsoever of terms of clause (b. In these circumstances, we shall not be justified in holding that the interest charged is excessive. 7. THE last contention made on behalf of the defendants appellants is that the suit is bad for mis-joinder of causes-of-action. It is argued that as an independent claim has been made against the defendants nos. 8 and 9, which should have been the subject-matter of a separate suit, the present suit should be held to be not maintainable for mis-joinder of causes-of-action. In our view, there is no substance in this contention. Unless the plaintiff Bank proves the mortgage and its right to have the property sold, it could not claim refund of the compensation money from the defendants nos. 8 and 9. Moreover, even assuming that the suit is bad for mis-joinder of causes-of-action, in view of Section 99 of the Code of Civil Procedure, such mis-joinder not having affected the merits of the case, the decree cannot be set aside on that ground. 8 and 9. Moreover, even assuming that the suit is bad for mis-joinder of causes-of-action, in view of Section 99 of the Code of Civil Procedure, such mis-joinder not having affected the merits of the case, the decree cannot be set aside on that ground. The defendants appellants have not been in the least prejudiced for the said claim of the plaintiff Bank against the defendants nos. 8 and 9. We, accordingly, hold that the suit was not bad for misjoinder of causes-of-action. 8. BEFORE we part with these two appeals, it may be stated that although the plaintiff Bank alleged that from time to time, some advances were made to the defendants, it appears from the written statements of the defendants that only a sum of Rs. 5000/- was advanced by the plaintiff Bank to the defendants nos. 2 and 4. No account has been annexed to the plaint showing the advances made by the plaintiff Bank to the defendants. It has been argued by Mr. Dasgupta that in view of the interest charged by the Bank at the rate of 121/2% per annum with monthly rents, the principal sum, that is the said sum of Rs. 5000/- together with interest has amounted to Rs. 25323/-, which is the claim of the plaintiff Bank, up to the date of the institution of the suit. The said fact has not been disputed on behalf of the plaintiff Bank. It has been prayed on behalf of the defendants appellants that they should be relieved of the pendente lite interest and thereafter till realization of the amount decreed After considering the facts and circumstances of the case and in view of the fact that the principal amount of the loan was only Rs. 5000/-, we direct that the plaintiff Bank will be entitled to simple interest at the rate of 2% per annum for the date of the institution of the suit till realization. The decree of the learned Sub-ordinate Judge is modified to that extent only, but the rest of the decree will stand. Subject to the above modification, both these appeals are dismissed. But there will be no order for costs in either of the appeals in this Court. The decree of the learned Sub-ordinate Judge is modified to that extent only, but the rest of the decree will stand. Subject to the above modification, both these appeals are dismissed. But there will be no order for costs in either of the appeals in this Court. As the L. A. Collector has been found to have been negligent in not serving the notice under Section 9 upon the plaintiff Bank, we direct that the plaintiff Bank and the defendants nos. 8 and 9 will bear their own costs in the court below. Appeals dismissed subject to some modification.