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Behari Lal vs Ram Ghulam And Ors.

High Court Of Judicature at Allahabad|12 May, 1902


JUDGMENT Knox and Blair, JJ.
1. Certain of the respondents had, on the 9th May, 1891, executed a bond, whereby they hypothecated two shops and a certain share in mauza Silsanda to the father of the present appellant. On the 9th of March, 1892, the mortgagor sold the share in mauza Silsanda to other parties, and left the sum of Rs. 660 out of the consideration money with the vendees, saying that it was to be paid to the appellant in satisfaction of the bond of 1891. In March, 1893, Ram Ghulam and others, who are also arrayed as respondents in this Court, brought a pre-emption suit against Muhammad Azim Khan and his co-vendees, and obtained a decree, which directed that a deposit of Bs. 881-5-0 was to be made by the pre-emptors to the credit of Azim Khan and others aforesaid. The sum of Rs. 660 is included in the amount of Rs. 881-5-0. Ram Ghulam, on the 11th of July, 1893, had sent a post-card to Ganga Ram, informing him that Rs. 660 had been paid into Court on his account. Ganga Bam declined to take this on the ground that the amount due to him was Bs. 773. Nothing further was done in the matter until the present suit was instituted by the representative of Ganga Ram, claiming to recover the sum of Rs. 1,444 odd as due on the mortgage. The Court of first instance gave a decree for Rs. 1,378, practically for all that the appellant claimed. The lower appellate Court gave force to the plea raised by the respondents Ram Ghulam and others, which was to the effect that as they had deposited Rs. 660, and had given notice of that deposit, no interest was thenceforward due. The Court held that as there was nothing in the mortgage deed which bound the mortgagors to repay the principal and interest in one lump sum within the term of three years, and as the sum of Rs. 660 more than covered the principal sum secured by the deed, the appellant acted unreasonably in rejecting the deposit made under the orders of a competent Court, and he could not equitably claim interest upon the sum so deposited. It accordingly granted the appellant only the sum of Rs. 873-4-0, together with interest on Rs. 113-7-6.
2. The main plea urged, before us is that the plaintiff was not bound to accept payment of part of the mortgage money, and not being so bound, he is entitled to interest and compound interest as if it bad never been deposited. Neither on the part of the appellant nor of the respondents were we referred to any precedents either of English or of Indian law. The appellant took his stand upon the principle to be found in Sections 83 and 84 of the Transfer of Property Act. It seems to us that where no stipulation or covenant has been made between the contracting parties as to payment of a sum borrowed, the lender is entitled to decline to receive payment of a sum due to him in instalments, and he can claim that the whole sum due be paid at one and the same time. Such seems to us to be the principle which governs the payment of moneys lent in English law, and we know of no opposite authority in the Indian law. It is, moreover, in general accordance with the principles of contract law as laid down in Leake and other leading authorities. We might go further and say that on the principle of common sense a lender who wants to put his money to use would be obviously embarrassed if he were repaid a large amount in continual driblets, and we do not see why he should be compelled to undergo this loss. We accordingly set aside the judgment and decree of the lower appellate Court, and restore that of the Court of first instance, with costs in proportion to success and failure, This disposes of the objection under Section 561.
3. The decree will contain provisions for payment within six months from this date.
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Behari Lal vs Ram Ghulam And Ors.


High Court Of Judicature at Allahabad

12 May, 1902
  • Knox
  • Blair