Krishnasami Chettiar vs Thippa Ramasami Chettiar and Others

The only question argued in this case relates to mesne profits and costs. The suit is one for redemption of a mortgage. Before the suit the plaintiff

paid the mortgage money into Court u/s 83 of the Transfer of Property Act. Notice was issued to the mortgagee and he refused to take the money.

Upon the pleadings we must assume, with the District Judge, that the plaintiff thereupon withdrew the deposit. The question is whether interest

ceases from the date of deposit. We must answer the question in the negative. u/s 84 of the Act interest ceases when the mortgagor ""has done all

that has to be done by him to enable the mortgagee to take such amount out of Court."" Neither Section 83 nor Section 84 state expressly what are

all the things that the mortgagor has to do. It is enough if he pays the proper amount into Court and causes a notice to issue to be served upon the

mortgagee? There is nothing more that he has got to do u/s 83. Can he then withdraw the money even before the mortgagee appears to claim it?

Most certainly not, if he wants interest not to run. Why should he be at liberty to do so because the mortgagee appears and refuses to take it?

There may be nothing to prevent it if he makes no claim for the cessation of interest. Suppose the mortgagee changes his mind and applies to the

Court for payment. We can see nothing in Section 83 to preclude his doing so. If the money does not remain in deposit but has been in the interval

withdrawn, he cannot of course be paid. But why should the mortgagor who has taken back the money and possibly made use of it or derived

some other benefit from it, be entitled to the cessation of interest from the date of the original deposit? Section 84 appears to us to presuppose the

continuance of the deposit to justify the claim to the cessation of interest. In the case of tender, continued readiness to pay has been held necessary

for the cessation of interest. See Geyles v. Hall (1740) 2 P.W. 377, Kinnaird v. Trollope (1889) 42 Ch. D. 610, Bank of New South Wales v.

O''Connor (1889) 14 A.C. 273 also Fisher on Mortgages, Section 1951, and Jones on Mortgages, Vol. 1, Section 899. It is true Velayuda

Naiaker v. Hyder Hussan Khan Sahib ILR (1910) Mad. 100 raises the question as to how far this rule has been departed from in India, but it is

there observed ""it is not alleged in this case that there was a subsequent demand by the mortgagee for the amount and that the mortgagor failed to

pay."" However this may be, the matter appears to stand upon a clearer footing as regards deposit. We cannot understand the word ""has deposited

in Court"" to include ""has deposited in Court and subsequently withdrawn."" It is quite conceivable that tender may be complete even though after it

is once rejected there is no subsequent readiness to pay, but we cannot speak of a person having deposited in Court, if he has withdrawn his

deposit. As regards costs also the Judge is right. There is no reason to depart from the rule laid down by Lord Selborne in Cotterell v. Stratton

(1872) 8 Ch. 295. ""The right of a mortgagee in a suit for redemption or foreclosure to his general costs of suit, unless he has forfeited them by

some improper defence or other misconduct is well established."" In Kinnaird v. Trollope (1889) 42 Ch. D. 610 Stirling, J, after quoting Lord

Selborne adds at page 619 ""it is well settled that the mere fact of a mortgagee claiming more than he is entitled to is not sufficient to deprive him of

his costs."" The second appeal, therefore, fails and is dismissed with the coats of the first respondent. The appellant will also pay the third

respondent''s costs on the value of the property claimed by him.