Yadavendra Bhatta vs Srinivasa Babhu and Others

Venkatasubba Rao, J.—The second defendant executed a mortgage in favour of the first defendant. Out of the consideration, a small

balance was not paid. The, plaintiff sues for the recovery of that balance on the strength of an assignment made by the third defendant who himself

had obtained a similar assignment from the second defendant. The first defendant pleaded that the balance was payable only on the performance of

a certain condition. The lower appellate Court has clearly found that the second defendant made default and that the condition was not fulfilled. On

this finding, the plaintiff can have no decree. Apart from this circumstance, it is perfectly clear on the authorities cited, Anakaran Kasmi v.

Saidamadath Avullah ILR (1879) M 79, Rajayopala Aiyar v. Sheik Davood Rowther (1917) 34 MLJ 342 and Sheik Galim v. Sadarjan Bibi ILR

(1915) C 59., that the present suit is a suit to enforce an agreement to lend money on a mortgage and that such a suit does not lie. In Anakaran

Kasmi v. Saidamadath Avullah ILR (1879) M 79 this is what the learned Judges say:

The Court ought not to make a decree for specific performance of an agreement to lend money on mortgage. Plaintiffs may obtain compensation

or damages in a properly framed suit against the defendant for breach of his contract or they may redeem the mortgage on payment of the sum

due.

The English cases on the point are referred to in Sheik Galim v. Sadarjan Bibi ILR (1915) C 59..

It was open to the mortgagor to sue the mortgagee for damages but a right to obtain damages cannot be transferred. Section 6(e) of the

Transfer of Property Act.

The Second Appeal therefore fails and is dismissed with costs.