Gauri Lal and Another vs Ram Lal Shaw and Others

Sinha, J.—This is a second appeal on behalf of defendants l and 3 from the concurrent decision of the Court below decreeing the plaintiffs'' suit for damages for breach of contract of sale registered on 4th December 1934, for Rs. 700. Out of the said consideration money Rs. 535 was left in deposit with the vendees, who were really defendants 1 and 2, the appellants, though the sale-deed was taken benami in the name of defendant 3. It appears that before the sale-deed in question the vendor had executed two mortgage bonds in favour of one Sundar Singh father of defendant 4 one in the year 1928 and the other in the year 1932. It was deemed from these two mortgages that the sum of Rs. 535 had been kept in deposit with the vendees. The plaintiffs'' case further is that the vendees did not redeem these mortgages nor did they tender money in deposit with them to the mortgagee. The result was that the mortgage Suit No. 151 of 193G was instituted by the mortgagees, and a preliminary decree was passed on 27th May 1937. One of the properties sold to the vendees, which was also the subject-matter of the mortgage, was sold on 24th January 1940, for Rs. 450 which did not satisfy the mortgage decree in full. The rest of the mortgage decree has been realised in part from the plaintiffs, which should really have been paid by defendants 1 and 3. On these allegations the plaintiffs instituted a suit originally for the unpaid portion of the consideration of the sale-deed. The suit was instituted on 22nd February 1940. Subsequently, on 10th August 1943, when the Court was about to deliver judgment, the plaint was amended so as to make it a claim for damages for breach of contract in writing and registered.

Defendant 1 contested the suit on the ground that the mortgage dues of Sundar Singh could not be liquidated by the vendees inasmuch as the amount of Rs. 535 left in deposit with them was not sufficient for that purpose. It was stated that really Rs. 600 was required to redeem the two mortgages aforesaid. It was also contended on behalf of the defendant that the sum of Rs. 535 had been tendered to the mortgagees, who refused to accept the same on the ground of the insufficiency of the amount.

The learned Munsif decreed the suit modifiedly holding that the plaintiff was entitled to a decree for a sum of Rs. 535 together with interest at one per cent. per mensem from the date of the sale-deed, namely, 25-9-1934 up to 24th January 1940, the date on which the property was sold in execution of the mortgage decree less the sum of Rs. 450 which was the sale proceeds of the auction sale. The Munsif granted a decree for interest at the rate of 6 per cent. per annum on the balance of the amount thus calculated with costs of the suit. On appeal the learned Subordinate Judge upheld the decision of the learned Munsif but modified it to this extent that he held that the plaintiff was entitled to get interest at one per cent. per mensem not from the date of the sale-deed but from the date of the registration of the deed, that is 4th December 1934. Hence, this second appeal by the defendants Nos. 1 and 2.

It has been contended on behalf of the appellants that the suit as amended on 10th August 1913 is barred by limitation though the suit as originally filed may not have been so barred. It is argued that it being a suit for damages for breach of contract the period of limitation would be only 3 years to be calculated from 24th January 1940. In my opinion, there-is no substance in this contention for the simple reason that the contract was in writing and registered, and, therefore, Article 116, Limitation Act, would apply. The property having been sold on 24th January 1940, and the plaintiff having been compelled to pay the unrealised portion at a later date, the suit, even if regarded as having been filed on 10th August 1943, cannot be said to be barred by limitation, the period being 6 years. In this connection see the case in Ram Rachhya Singh Thakur and Others Vs. Raghunath Prasad Misser and Others, .

Mr. Rajeshwari Prasad further argued that the plaint did not allege that the plaintiffs had made any payment to the mortgagee decree-holders, and, therefore, they had not been damnified, and, subsequently, there was no cause of action for the suit. In my opinion, there is no-substance in this contention, firstly for the reason that there is not only an allegation but it is a fact that the plaintiff had been compelled to pay portion of the mortgage decree even after the sale of the mortgaged property, and secondly because, on the finding of fact arrived at by the Court below, the defendants appellants did not tender money to the mortgagees with the result that neither of the two mortgages was redeemed. It was lastly contended that the defendants were not at fault if the mortgage dues had not been satisfied by them though it is a fact that the amount of Rs. 535 in deposit with the vendees was not sufficient to discharge the mortgage debts aforesaid. The defendants did not make any attempt to satisfy the mortgages in respect of any of the two bonds in question. Hence, it cannot be said that the defendants appellants were blameless in the matter. Both parties were to a certain extent to be blamed, and, therefore, both of them had to bear the burden of their omissions. ''Hence, though the suit was for Rs. 1000 the decree as finally passed by the lower Court is only for Rs. 413 and odd. Hence, as a result of these considerations, it must be held that there: is no merit in this appeal, and it is accordingly dismissed with costs.