Debendra Nath Mullick vs Pulin Behary Mullick and Another

Ameer Ali, J.—The facts of this case are sufficiently set out in my preliminary judgment ILR 23 Cal. 714. It is enough to say that the Registrar has found upon the inquiry directed that the expenses of and incidental to the plaintiff''s assignment amounted to Rs. 758-4-0. His report is dated the 19th of December 1896. On the 8th of May last an application was made to fix a day for further hearing and final judgment. The case was fixed for the 22nd of May, but was adjourned by consent to the 29th of May. On the 27th the defendant deposited a further sum of Rs. 65, odd annas. Mr. Sinha on behalf of the plaintiff contends that the sum deposited by the defendant on the 10th of April 1896 was insufficient, inasmuch as he had deposited only Rs. 750 over and above the consideration paid by the plaintiff for his assignment, whereas the expenses are now found to have been Rs. 758-4-0, and that therefore he (the defendant) is not entitled to the benefit of Section 135 of the Transfer of Property Act. He also contends that the balance ought to have been paid into Court as soon as it was discovered that the amount originally deposited was not sufficient, and that the deposit of Rs. 65 made after the case was placed on the cause list on the 22nd of May last does not remove his objection. He also asks for interest up to final judgment.

As regards the first point it was obviously impossible for the defendant to know what the expenses amounted to. The plaintiff did not furnish any information on the subject, and consequently an inquiry was directed to ascertain the amount. Under the circumstances the defendant could only be expected to deposit an approximate amount, and he accordingly paid into Court Rs. 750 over and above the price paid by the plaintiff, thus showing his intention to abide by the offer he had repeatedly made to the plaintiff. On the 19th of December 1896 it was found that the expenses amounted to Rs. 758, odd annas. The case of Muchiram Barik v. Ishan Chunder Chuckerbutti ILR 21 Cal. 568 shows that a debtor claiming the benefit of Section 135 of the Transfer of Property Act is discharged of his liability, if he pays or offers to pay at any time before final judgment the consideration plus the expenses and interest. The defendant in this case has, from the outset, claimed the benefit of the section; he tendered the amount to the plaintiff shortly after the assignment, and appears to have been always willing to pay whatever else the plaintiff might be found entitled to for incidental expenses and interest. In order to show that he was acting bond fide he deposited in Court Rs. 3,500 on the 10th of April 1896. It seems to me that he is entitled to the benefit of Section 135 of the Transfer of Property Act.

I am also of opinion that u/s 84 of the Transfer of Property Act the plaintiff ought to have interest on the sum of Rs. 2,750 only up to the 6th of March 1891. I understand that the amount paid into Court fully covers what the plaintiff is entitled to u/s 135. I accordingly order that the sums of money paid into Court by the defendant be paid to the plaintiff, and that the plaintiff do reconvey or retransfer to the defendant the property comprised in the mortgage and further charge, free from all incumbrances done by him or any person or persons claiming by, from or under him, and do deliver up all documents in his custody or power relating thereto, such reconveyance to be settled by the Registrar of the Court, if the parties differ about the same.

Having regard to the conduct of the plaintiff I must direct him to pay to the defendant his costs of the suit to be taxed on Scale 2.