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1978 DIGILAW 234 (MAD)

Selvaraj and others v. C. Sarojini B. Nair and another

1978-03-20

M.A.SATHAR SAYEED, T.RAMAPRASADA RAO

body1978
Ramaprasada Rao, J:- All the defendants excepting the 9th and the 10th defendants in O.S. No. 19 of 1971 on the file of the Subordinate Judge of Chidambaram, are the appellants. The 1st defendant and his undivided brother Venkatachalam Pillai were traders and for purposes of their business and for other necessities were borrowing monies from the plaintiff (one or the other of them). In order to secure such borrowings made, they executed along with the second defendant a security bond Exhibit A-1 dated 24th November, 1960 in favour of the plaintiffs charging the suit properties for the repayment of such amounts borrowed by them and to be borrowed by them from time to time from the plaintiffs. We shall consider in detail the various clauses in the security bond, but suffice it however to state here that the security for the repayment of the advances to be made by the plaintiffs was limited to Rs. 40,000. On the date of the bond itself two promissory notes were executed namely, Exhibit A-2 for a sum of Rs. 10,000 and Exhibit A-4 for a sum of Rs.5,000 in favour of the first and second plaintiffs respectively. Thereafter, in December, 1960, defendants 1 and 2 and Venkatachalam Pillai borrowed under Exhibit A-6 dated 12th December, 1960 a sum of Rs. 12,000 from the first plaintiff and on 29th October, 1963 under Exhibit A-8 defendants 1 and 2 and Venkatachalam Pillai borrowed a sum of Rs. 6,000 from the second plaintiff and under Exhibit A-9 dated 29th October, 1963 from the first plaintiff a sum of Rs. 10,000. In all, therefore, the first plaintiff advanced Rs. 32,000 to defendants 1 and 2 and Venkatachalam Pillai under the promissory notes as enumerated above and the second plaintiff advanced a sum of Rs. 11,000 to defendants 1 and 2 and Venkatachalam Pillai. After giving credit to the various amounts paid towards interest under each of the promissory notes, the plaintiffs have instituted the present action for recovery of the sum of Rs. 43,000 by way of principal and a sum of Rs. 11,000 to defendants 1 and 2 and Venkatachalam Pillai. After giving credit to the various amounts paid towards interest under each of the promissory notes, the plaintiffs have instituted the present action for recovery of the sum of Rs. 43,000 by way of principal and a sum of Rs. 33,732 towards interest and sought for a charge on the suit properties and in view of the limitation in the security bond asked further for a personal decree against the executants of the promissory notes and/or their heirs who were admittedly the members of the joint family, which originally consisted of the first defendant and his undivided brother Venkatachalam Pillai. Venkatachalam Pillai died prior to suit as an undivided member leaving behind him the fifth defendant, his wife, his daughters the 6th and 7th defendants and his son the 8th defendant, as his heirs. Defendants 2 to 4 are the undivided sons of the first defendant. It may also be mentioned here that the second defendant was also the co-executant in the security bond, defendants 3 and 4 being the undivided sons of the first defendant and as the debts are for family necessity and for family business, the plaintiffs are seeking reliefs as against the estate of the family in the hands of such undivided members. Defendants 9 and 10 are subsequent alienees of the secured properties and they are impleaded in order that the result of the proceedings may also bind them. The first defendant also died pending the suit leaving behind him his second wife the 11th defendant, his daughter the 12th defendant and his sons defendants 13 and 14. They are also impleaded as heirs representing the estate of the first defendant, apart from defendants 2 to 4. The plaintiffs’ case is that the debt is binding on defendants 2 to 4 and defendants 11 to 14, as the debts were contracted for legal necessity. The plaintiffs are claiming interest as per the contract rate. The suit has been filed by both the plaintiffs, as the security bond in their favour is one and indivisible and they have also agreed to a decree in their favour being passed jointly. In the alternative they would say that if the Court so desires, a separate decree might be passed in favour of each of the plaintiffs for the respective amounts due to them. In the alternative they would say that if the Court so desires, a separate decree might be passed in favour of each of the plaintiffs for the respective amounts due to them. The defendants in their written statement would allege that plaintiffs 1 and 2 represented that they were getting joint funds to the extent of Rs. 40,000 and that they would lend the same if they offer security for such advances. It is said that notwithstanding the oral arrangement that monies would be lent from a common pool belonging to the plaintiffs, one or the other of the plaintiffs individually lent their separate monies and obtained promissory notes from defendants 1 and 2 and Venkatachalam Pillai and it is, therefore, contended that the security bond Exhibit A-1 cannot enure to the benefit of the plaintiffs, as it was enforceable only if monies were lent jointly by them from their joint assets collected in a pool and operated upon by them. There is no dispute about the amount due, but it is said that the payments towards the interest were endorsed on the respective promissory notes and as the security bond is unenforceable in the light of the narration as above, the suit is barred by limitation. Lastly, it is said that interest claimed is usurious. Several other defences were taken, but it is unnecessary for us to set out in detail such objections, for, in the main, the appeal was argued within certain limitations and on specific grounds which we shall deal with presently 2. The other defendants have raised similar pleas. The 9th and the 10th defendants, in particular claimed an interest on the properties as prior encumbrances. The heirs of the deceased executants claimed that there was failure of consideration and that the joint family is not liable for advances made by the plaintiffs. On such material pleadings, the following issues were framed for trial: 1. Whether the suit security bond alleged to have been executed by defendants 1/2 and deceased Venkatachalam Pillai is true, valid and supported by consideration and binding on the defendants 3 to 8? 2. Whether the suit promissory notes are true, valid and supported by consideration and binding on defendants 3 to 8? 3. Whether the suit security bond was ever acted upon? 4. Whether the suit is in time? 5. 2. Whether the suit promissory notes are true, valid and supported by consideration and binding on defendants 3 to 8? 3. Whether the suit security bond was ever acted upon? 4. Whether the suit is in time? 5. Whether the security bond has itself become extinguished by the promissory notes themselves having become barred by limitation? 6. Whether the partial discharge pleaded towards the promissory notes is true ? 7. Whether the interest claimed in penal and usurious? 8. Whether the suit is bad for misjoinder of parties and causes of action? 9. To what relief? 10. Whether the 10th defendant must be deemed as the prior mortgagee and is an unnecessary party to the suit? 11. Whether defendants 1 to 3 are entitled to benefit of Act IV of 1938? 3. Issues 1 to 5 were answered in favour of the plaintiffs. Whether the 10th defendant is entitled to priority over the plaintiffs security, was left open. As regards the 9th defendant, she having been impleaded as a necessary party, no relief was granted in her favour. The appeal is against the preliminary charge decree passed by the Court below as against the suit properties which was passed in favour of the plaintiffs jointly for the amounts claimed in the plaint. 4. The main contentions of Mr. G.N. Chary for the appellants are that the security bond by reason of its terms as recited therein is not collectively enforceable by both the plaintiffs and as under Exhibit A-1 security was offered only in case where the plaintiffs advanced monies from a joint fund belonging to them and so it happened that each of the plaintiffs advanced monies of their own, the security bond is not enforceable. Following this contention, in the absence of any security or a charge ever immoveable property for the repayment of the debt, the loan should be treated as ordinary money debts evidenced by the respective promissory notes and as the suit has been filed beyond three years from the date of the last payment, it is barred under Article 35 of the Limitation Act. Furthering his contention he stated that Article 62 of the Limitation Act cannot be invoked on the foot that the debt is a secured debt and the charge created under Exhibit A-l is enforceable. 5. Furthering his contention he stated that Article 62 of the Limitation Act cannot be invoked on the foot that the debt is a secured debt and the charge created under Exhibit A-l is enforceable. 5. Secondly, it is said that the tenor of the document shows that the promissees should act collectively and not disjunctively and therefore, the suit as framed is not maintainable. 6. Thirdly, it is said that the joint decree cannot be passed in favour of the plaintiffs. 7. Fourthly, it is contended that the interest rate as provided in the document is usurious and the defendants have to be given relief in this behalf. 8. Lastly, apparent inconsistency between the judgment and decree was brought to our notice and it is said that the decree needs a correction. 9. Before we consider the contentions of parties, it is necessary to analyse the security bond Exhibit A-l. It was executed by the first defendant, his late brother Venkatachalam Pillai and the second defendant. It is in favour of plaintiffs 1 and 2. The executants agree to borrow either individually or collectively monies, agreeing to repay the same with interest. This is contained in the following clause. 10. The executants stipulate that theproperties which are their joint family properties are offered as security for the repayment of the principal and interest due under the promissory notes and they create a charge over the suit properties. If any monies towards principal and interest remained unpaid, then the promisees are not only entitled to proceed against the security, but they could also recover such unpaid balance personally by proceeding against the other properties of the executants both moveables and immoveables. It is also provided that until all the monies borrowed as aforesaid are repaid, the security deed Exhibit A-1 shall be enforceable. 11. The further stipulation is that upto a limit of Rs. 40,000 the executants can borrow from the promisees and that the security and the contemporaneous charge against the charged properties shall be available upto a limit of Rs. 40,000 only. It is on the basis of the recitals as above, the first contention of Mr. Chary has to be considered. According to him, the charge under the deed cannot be availed of, if both the promisees do not join and advance collectively from such pooled up resources of the promisees. 40,000 only. It is on the basis of the recitals as above, the first contention of Mr. Chary has to be considered. According to him, the charge under the deed cannot be availed of, if both the promisees do not join and advance collectively from such pooled up resources of the promisees. In fact, the contention is that the promisees should act collectively and not disjunctively. Particular reference is made to the word appearing in the earlier portion of the deed as against the word appearing in the later portion. 12. The reference to in the first paragraph of Exhibit A-1 and in the second paragraph thereto obviously referred to the executants. The further norm prescribed in the second paragraph limiting the scope of the expression has to be noticed. The executants can borrow. This recital cannot be said to be a guide for inter-preting the word or appearing in the document. Under the deed the executants expressly provided to themselves the" privilege to borrow either collectively or individually. In so far as lenders are concerned, there is no restriction either expressly or by necessary implication that they should so act collectively. We shall refer to this aspect later. 13. It is pertinent at this stage to make certain general observations regarding the interpretation of documents. While interpreting an instrument which is reduced to writing an arduous exercise of an astute mind ought not to be undertaken, but the Courts or Tribunals called upon to interpret them should understand the instrument rationally and give effect to the plain meaning of the words employed in it. No doubt, the instrument has to be read as a whole, and it is important to remember that words, or phrases or even sentences cannot be torn out of the context and an attempt made to interpret the document. Any ambiguity in the usage of similar words should be pondered over in order to give an harmonious interpretation to the sense and meaning of the instrument and thus examined the intention of the executors may sometimes also be sought for, Too much straining of the meaning of the words is not necessary. If the ambiguity is apparent on the record and the conclusion is that there is an element of irreconcilability in the document then only a judicious hunt for the intention of the parties to the document should be undertaken. If the ambiguity is apparent on the record and the conclusion is that there is an element of irreconcilability in the document then only a judicious hunt for the intention of the parties to the document should be undertaken. In effect, therefore, the intention should be gathered provided inconsistency is inbuilt in the document. Normally, however, the meaning of the document and the recitals therein should be given effect to without lightly brushing them aside. The word in the first paragraph of Exhibit A-l and the word in the second paragraph of the same is said to create a mandate as it were to the promisees-plaintiffs to act collectively and advance monies only from their joint funds. In order to enforce the argument Mr. Chary says that the use of the words means that when the executants were to borrow they can do so either collectively or individually and this stipulation being conspicuously absent when the promisees are referred to, it is contended that the collective word could only mean that the promisees-plaintiffs can act and only act jointly and not individually, we are unable to place such an interpretation on the document. The word should be understood in the homorific sense and not with any subdued meaning therein that both of them should act simultaneously and advance monies jointly from a common fund of theirs. It would be straining the language of the instrument to irrational limits, if it is held that unless both the plaintiffs are joint promisees under each of the promissory notes monies lent by one of the promisees cannot be sued for realising the debt at their choice by both of them, by taking advantage of the charge deed Exhibit A-l, 14. The same argument is put in a slightly different way. As the promissory notes are taken in the name of the one or the other of the plaintiffs the monies or loans outstanding can be recovered only as a simple money debt and as the claims under each of the suit promissory notes are barred under Article 35 of the Limitation Act, they cannot be realised as if it was a suit to enforce payment of money charged upon immoveable property, under Article 62 of the Limitation Act. Specific reference should be made to recitals in Exhibit A-l where under the executants unequivocally stipulate, that for all the outstanding dues under each of the promissory notes made by the defendants the properties enumerated therein stood charged. By reason of the express covenant the simple money debt ordinarily recoverable as such within the time provided for in Article 35 got merged with a money debt to enforce payment of which immoveable property mentioned in Exhibit A-l is charged. A period of 12 years is admittedly provided for under Article 62 of the Limitation Act to enforce payment of monies charged upon immoveable properties. Therefore, the contention that the suit claim can be recovered only as a money debt pure and simple is without force. The other alternative contention that the plaintiffs should jointly act is again not sustainable. The plaintiffs have made it clear in the pleading that the security bond Exhibit A-l being one and indivisible, its integrity cannot be split up and they are also agreeable for a joint decree passed in their names. 15. Reliance however, was placed by Mr. Chary on the passages in Volume 12, Halsbury’s Laws of England IV Edn. 595. The passage reads as follows: "Words to betaken in Ordinary Sense: The words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that such a construction may appear not to carry out the purpose which it might otherwise be supposed the parties intended to carry out; but if the provisions and expressions are contradictory, and there are grounds, appearing on the face of the instrument, affording proof of the real intention of the parties, that intention will prevail against the obvious and ordinary meaning of the words and where the literal (in the sense of ordinary or primary) construction would lead to any absurd result, and the words used are capable of being interpreted so as to avoid this result, the literal construction will be abandoned. So, too, considerations of inconvenience may be admitted when the construction of the document is ambiguous. If however, the intention is clearly and unequivocally expressed, then however, capricious it may be, the Court is bound by it, unless it is plainly controlled by other parts of the instrument. So, too, considerations of inconvenience may be admitted when the construction of the document is ambiguous. If however, the intention is clearly and unequivocally expressed, then however, capricious it may be, the Court is bound by it, unless it is plainly controlled by other parts of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. The instrument must be construed according to its literal import, unless there is something in the subject or context which shows that this cannot be the meaning of the words." As in our view, the ordinary sense of the recitals is clear and the words employed are not contradictory and no absurd result will follow while literally interpreting the words used, then even according to Halsbury, the Court is bound to give effect to the words in its popular and ordinary sense. The citation does not help the appellants. There is no scope in the instant case nor is there any necessity to find the intention of the parties which of course, could be found by Courts as the authoritative interpreters of documents. — Vide — Bansilal Fomra v. Thadava Co-op. Agri. and Indus. Socy. Ltd.1. Thus, after analysing the document, we are unable to agree with the first two contentions of Mr. Chary. 16. As regards the third contention, we have already referred ‘to the fact that the plaintiffs themselves are willing to obtain a joint decree. In the light of such an express statement made by the plaintiffs it is for them to adjust their rights inter se and the defendants cannot take advantage of the same and claim that the suit as framed is not maintainable. 17. The next contention is whether the interest rate is usurious and what would be the relief to which defendants would be entitled. No doubt, the maximum limit fixed under Exhibit A-1 in the matter of collective advances to be made by the plaintiffs is Rs. 40,000. 17. The next contention is whether the interest rate is usurious and what would be the relief to which defendants would be entitled. No doubt, the maximum limit fixed under Exhibit A-1 in the matter of collective advances to be made by the plaintiffs is Rs. 40,000. After certain payments have been made as is seen from the endorsements in the promissory notes themselves, the plaintiffs are seeking for a decree for the amounts payable under each of the promissory notes towards the principal and interest. The present contention is that no amount over and above Rs.40,000 can be claimed. This very contention was repelled by this Court under similar circumstances in Lakshmanan Chettiar v. Palaniswamy Chettiar2. There, the division Bench of this Court held that even though a maximum limit of advance is agreed to between the lender and the borrower that would only refer to the principal and not to interest which has accrued due on such advances. The defendants as already stated have agreed in writing that they would pay the principal and interest due under the promissory notes and towards such outstanding a charge was created over the properties referred to in Exhibit A-l. We are, therefore, of the view that the plaintiffs are in order in seeking for a relief as against the defendants for the sum as claimed, even though it exceeds the maximum limit of Rs.40,000 which was understood as the outer limit of financial accommodation which the defendants could obtain from the plaintiffs. 18. But the question still remains as to what extent the charge decree could be claimed by the plaintiffs. The plaintiffs themselves have limited the charge decree to the sum of Rs. 40,000 out of the plaint claim. This is so because the charge over the properties is limited to only Rs. 40,000. What should be the rate, per cent of interest to which the plaintiffs would be entitled? The lower Court granted interest at the rate of 12 percent. on the amount found to be due from the date of plaint to the date of decree and thereafter at 6 percent. per annum till realisation. The plaintiffs have claimed interest only at the rate of 12 per cent. Our Courts have consistently taken the view vide — Gopala Menon v. Sreenivasa1and N.A. Fernando v. Subbiah Iyer 2that the rate of interest of 12 per cent. per annum till realisation. The plaintiffs have claimed interest only at the rate of 12 per cent. Our Courts have consistently taken the view vide — Gopala Menon v. Sreenivasa1and N.A. Fernando v. Subbiah Iyer 2that the rate of interest of 12 per cent. simple interest and in case of default of payment of interest, every month at the 131 Per cent. was held to be not excessive. In fact, the Court said: “It cannot be laid down that any interest in excess of 12 per cent. per annum simple is excessive, and that therefore, the Court cannot grant a decree for more than at that rate.... it has also never been held that compound interest per se is usurious. .“ Having regard to this, we are unable to agree that the interest rate in this case has to be interfered with and relief granted to the defendants on extraneous considerations. 19. Whilst therefore, confirming the decree and the judgment of the Court” below, we hold that the plaintiffs would be entitled to a charge decree against the suit properties only to the extent of Rs.40,000 out of the decree amount and for the balance of the suit claim which remains unpaid including interest accruing hereinafter, there shall be a personal decree against the defendants as set out hereinafter. This is so because the money was borrowed by the undivided members of a Hindu undivided family for legal necessity and for joint trade. 20. The executants of the promissory notes are the first and the second defendants as father and son. The 5th defendants’s husband Venkatachalam Pillai was also a party thereto. The first defendant died during the pendency of the suit and bis legal representatives are brought on record as defendants 11 to 14. Besides defendants 1 and 2, defendants 3 and 4 have been added by the plaintiffs, claiming obviously that they are liable for their father’s debt. Even so, defendants 6, 7 and. 8 are already on record as the legal representatives of Venkatachalam Pillai. It is in this state of affairs that the claim of the plaintiffs to have a decree against the sons of Muthukumaraswami Pillai and Venkatachalam Pillai have to be considered. Even so, defendants 6, 7 and. 8 are already on record as the legal representatives of Venkatachalam Pillai. It is in this state of affairs that the claim of the plaintiffs to have a decree against the sons of Muthukumaraswami Pillai and Venkatachalam Pillai have to be considered. The first defendant and his son (the 2nd defendant) are parties to the charge deed Exhibit A-l. Defendants 3 and 4, though not executants of the promissory notes or the charge deed and defendants 11 to 14, as the legal representatives of the first defendant who were brought on record during trial are also liable because the debt is binding on them. This is as regards the first defendant. As regards Venkatachalam Pillai, who died prior to the institution of the suit, his wife and children are defendants 3 to 6. The plaintiffs seek for a charge decree against the properties mentioned in the plaint, and also by proceedings against defendants 1 and 2 personally and against joint family properties in the hands of the defendants. 21. In the light of our elucidations about the nature of the personal decree, the observations of the trial Judge in paragraph 25 of the judgment that the plaintiffs would not be entitled to any personal remedy against the defendants are not aside. 22. There will be a charge decree as prayed for against the properties admittedly belonging to the joint family consisting of the first defendant and Venkatachalam Pillai. This is so bec1use the debt is binding on the suit properties as also on male members of the joint family who have been impleaded as defendants either at the time of the institution of the suit or after the death of the first defendant. Even so, the sons of Venkatachalam Pillai already on record as members of the joint family shall be bound by the charge decree. The sons of Muthukumaraswamy Pillai, the first defendant and the sons of Venkatachalam Pillai, are personally liable for the debts under the doctrine of pious obligation also. In so far as the female heirs of Muthukumaraswamy Pillai and Venkatachalam Pillai either on record at the time of the filing of the suit or brought into record as legal representatives of the first defendant at a later stage are liable to suffer the decree as against the assets of Muthukumaraswamy Pillai or Venkatachalam Pillai in their hands. In so far as the female heirs of Muthukumaraswamy Pillai and Venkatachalam Pillai either on record at the time of the filing of the suit or brought into record as legal representatives of the first defendant at a later stage are liable to suffer the decree as against the assets of Muthukumaraswamy Pillai or Venkatachalam Pillai in their hands. But they would not be otherwise personally responsible in the larger sense of the term. To this extent, the decree of the Court below is modified and the appeal in the main is dismissed. There will be no order as to costs.