S. RAJAGOPALASWAMI NAIDU v. BANK OF KARAIKUDI LTD

In 1953 the Bank instituted a suit on the foot of the last two mortgages and obtained a decree against the appellant and his In April 1958 wife. This decree appears to have been satisfied. the suit out of which the present appeal has arisen was filed by the Bank on the foot of the mortgage dated October 14, 1950. The main defence of the appellant, who was the sole mortgagor, was that the suit was not maintainable in view of the provisions of s. 67 A of the Tra.nsfer of Property Act and that the stipulation of. interest was penaJ and in contravention of the provisions of the Usurious Loans Act 1918 .. A number of other issues were framed but it is altogether unnecessary to mention them. The trial court granted a preliminary decree for the recovery of principal amount of Rs. 40,000/- which remamed unpaid with interest at 12% per annum from August 1, 1952 till the date of the decree and there after at 6% per annum till realisation. An appeal was taken to ihe. High Court where two points were agitated. The first was based on the provisions of s. 67 A of the Transfer of Property Act and the second related to the rate of interest. The High Court did not accede to any of the contentions and dismissed the appeal. Section 67 A of the Transfer of Property Act provides that a mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under s. 67 and who sues to obtain such decree A B c D E F G H s. RAJ.AGOPALASWAMI v. KARAIKUDI BANK (Grover, I.) 42~ A B c D E F G on any one of the mortgages, shall, in the absence of a contract to the contrary, be boWld to sue on ail mortgages in respect of which, the mortgage-money has become due. This section was i11serted by the Amending Act 20 of 1929 in view of certain conflict among the High Courts in this country, with regard to the right of the mortgagee to sue at different times on different mortgages although the mortgagor was the same. As pointed out in Mulla'~ Transfer of Property Act, 5th Edri. at pag~ 43 l SS. G l anu 07 A oi thi~ Act lay down the simple rule that if a mortg~gor has made two <Jr more mortgages of the same property or of different properties to the same ·mortgagee the mortgagor may redeem each separately but that the mortgagee must enforce all or none. To attract the appli cability of s. 67 A it is essential that the mortgagor must be the same and he should have executed two or more moregages in res pect of each of which he has a right to obtain the same kind of decree under s. 67 A. In the present case it is not possible to hold that the mortgagor in the suit on the foot of the mortgage dated October 14, 1950 is the same as the mortgagor in the previous suit which was filed on the foot of the mortgages in favour of the In the other two mortgages there were appellant and his wife. two mortgagors, one the appellant and the other his wife. There is nd statutory provision or rule or principle by which the wife and the husband could be treated ·as one entity for the purpose of the mortgages. Each was owner of a separate and distinct property In and both joiried Moro Raghunath v. Balaji(') the first mortgage was by two bro thers and the second mortgage of part of the same property was by one brother. The Bombay High Court held that the suit to enforce the first mortgage did not bar a suit to enforce the second mortgage. This was belbre the insertion of s. 67 A but the prin ciple embodietl in that section is clearly illustrated by that case. The bar of s. 67 A, therefore, could not possibly come in the way of the institution of the present suit. their respective properties. in mortgaging On the question of interest we are of the view in the light of the provisions of the mortgage deed and all the circumstances that the rate of 12% is unfair and penal. We are incline9, therefore, to give this relief that the interest should be calculated at the rate of 10t% (which was the original contractual rate) from the date of the mortgage to the date of the preliminary decree. Thereafter the interest shall be payable as directed by the trial court at the rate of 6 % per annum till realisation. With this modification the appeal is dismissed but in view of the entire circumstances the parties are left to hear their own costs in this Court. H G.C. (I} J.L.R.. 13 Bom'. 45. Appeal dismissed.