Joti Lal Sah vs Fateh Bahadur Shah and Others

Chatterji, J.—These appeals arise out of two mortgage suits. One of the suits was on foot of three mortgage-bonds dated 24th February, 1923, and the other on a mortgage-bond executed on 5th August, 1923. The due date for payment under all the bonds was 24th February, 1924. The plaintiff brought these suits on 19th December, 1924, with a Court fee of Rs. 4 in each case. The Court allowed him time to pay the deficit Court-fee till 5th January, 1925, but the Court fee was made good on 23rd December, 1924.

The point raised by the defence was that there was a valid tender of the money payable under the mortgage-bonds and, as such, the plaintiff was not entitled to any interest or cost of the suit. The learned Subordinate Judge found that there was a valid tender and disallowed interest pendente lite as also cost of the suit. The question whether the plaintiff was entitled to any interest and costs of the suit will depend entirely on the question of tender, as to whether there was a valid tender or not.

It appears that the mortgagor-defendant negotiated for the sale of the mortgaged property with the defendants second party on 18th December, 1924, and the sale-deed was executed and registered on 22nd December following. On 19th December the defendant sent a telegram to the plaintiff asking him not to file the suit till the 30th Chait corresponding to 9th April, 1925. On the same day he attempted to give a notice to the plaintiff to the same effect. Then on 22nd he sent a telegram to the plaintiff, informing him that he was ready with the money and payment may be taken and asking him not to institute the suit. Then the defendant further states that he actually went to the house of the plaintiff and offered him the money on 23rd December, but that was refused.

The question for determination will be, whether these [facts constitute a valid tender? The telegram of 19th December merely offered that payment would be made by the 30th Chait. That certainly is no tender. On 22nd December the defendant expressed his willingness to pay the money and mentioned that all the mortgage dues were kept in deposit by virtue of a sale-deed executed in favour of the defendant Chathru Sahu. This in itself will not constitute a valid tender; but added to what actually happened on the 23rd, it will indicate that the defendant was actually ready and willing to pay the mortgage dues if it would be received by the plaintiff.

The occurrence of the 23rd is the most important factor in the present case. According to the defence he along with the agent of the purchaser-vendee and a pleader of his, went to the plaintiffs house in the morning and offered him the money. This is denied on the side of the plaintiff. But the Pleader who is said to have accompanied the defendant has been examined; and there is no reason why he should speak falsely in favour of the defendant and I do not think that I shall be justified in rejecting his evidence which was believed by the trial Court. The Pleader not only went himself, but also took a notice addressed to the plaintiff. The notice shows that it was written on the 23rd at 8 a. m. and the endorsement on the back of it shows that the parties tendered the money and, on the refusal by the plaintiff to receive it, they came away at 8-35a. m. It is urged on behalf of the plaintiff that this is no valid tender, because according to the evidence the parties had gone with a sum of Rs. 23,000 only in order to pay up not only these mortgage-bonds, but also the dues under some hand-notes for which another suit had been brought. But the notice mentions:

Please accept what is justly due to you on adjustment of accounts and return the said mortgage-bonds.

Therefore, what was tendered was the amount that would be found due. On a calculation it will be found that the amount due on that date on the mortgage-bonds as also on the hand notes came up to a little over Rs. 23,000, viz., Rs. 23,188 5-6. Bat the plaintiff refused to make any account and sent away these men. If really accounts had been made up and anything in excess to Rs. 23,000 had been found due, the party could have at once gone back and brought the small sum of Rs. 188 and odd and squared up the account. But nothing like this was done. It has been laid down by their Lordships of the Privy Council in Chalikani Venkatarayanim Garu v. Venkata Subadrayamma Jagapati 71 Ind. Cas. 1035 : 46 M. 108 : 50 I.A. 41 : 17 L.W. 383 : AIR 1923 P.C. 26 : 32 M.L.T. 70 : 44 M.L.J. 631 : 25 B. L.R. 641 : 38 C.L.J. 34 : 28 C.W.N. 25 (P.C.) that: "a mortgagee unequivocally refusing to receive payment if tendered on the due date, relieves the mortgagor from the duty of actually tendering the amount and cannot recover interest subsequently accruing. The question of readiness to pay is immaterial in such a case."

The conduct of the plaintiff throughout has been to rush into Court and it is quite clear from all the facts and circumstances that the plaintiff took up an attitude of unequivocally refusing the mortgage-money even if tendered. In my opinion there was a valid tender of the mortgage dues on 23rd December. The defendant had to take a Pleader with him because he found that on 19th December the plaintiff tried not to accept the notice which was sought to be given by another Pleader. In these circumstances it is clear that the plaintiff was not entitled to any further interest.

On the question of costs, it appears that the plaintiff filed his suit on 19th December, 1924, and he purchased the deficit Court-fee stamp on 22nd December. That stamp must have been purchased before the receipt of the telegram of that date because the evidence shows that the telegram was taken to him between 3 and 4 p m. The plaintiff evidently had to pay some fees to the Pleader who drafted the plaint and filed the same. He is, therefore, entitled to the Court fee which he had paid on 19th December as also the amount which he would have lost if he had to apply for a refund of the Court fee purchased on the 22nd. We are informed that this rate is one anna per rupee. This may be ascertained in the office and the correct amount inserted in the decree. The plaintiff should also get Rs. 50 as Pleader''s costs in each suit in connexion with the drafting and filing of the plaint.

Subject to these modifications, the appeals are dismissed; There will be no order for costs in these appeals.

Ross, J.

I agree. The notice was a notice of tender of the entire amount due under the three mortgage-bonds as well as under four hand-notes and there was a request in the notice that the mortgagee should accept what was justly due to him on an adjustment of accounts. The endorsement on the notice by the Pleader was to the effect that the sum of Rs. 23,000 in Government currency notes was taken to the mortgagee, but the tender was refused. Now the telegrams (Exs. D and D-l) show that the object of making this tender on 23rd December was to prevent the institution of suits on the mortgages and had nothing to do with the suit on the hand-notes which had already been instituted several days before, and the fact that the amount due on the mortgages and the hand-notes together was slightly in excess of Rs. 23,000 is neither here nor there. The amount due on the mortgages was less than Rs. 23,000. The question really is whether this was an unnecessary litigation. As was observed by Romilly, M.R. in Harmer v. Priestly (1853) 16 Beav. 569 : 22 L.J.Ch. 1041 : 1 W.R. 343 : 51 E.R. 899 : 20 L.T. (o.s.) 177 : 96 R.R 262 where a mortgagor before bringing a suit for redemption had tendered a round sum pending the settlement of accounts and the mortgagee in possession had refused to accept it:

A mortgagee is, no doubt, favourably looked on by the Court; but he will not be allowed, by disputing the account, to throw the expenses of any unnecessary litigation upon the mortgagor.

The present case is worse than that because the mortgagee was not merely disputing an account, but was refusing settlement of accounts altogether. In Greenwood v. Sutcliffe (1892) 1 Ch. 1 : 61 L.J.Ch. 59 : 65 L.T. 797 : 40 W.R. 214 Lindley, L.J., said:

What is the object of tender? It is not necessarily to put an end to all controversy. It may have that effect, and very often has, but its main object is to throw the risk of further controversy upon the other part.

In my opinion the action of the appellant resulted in a wholly unnecessary litigation and all that he is entitled to is what my learned brother has allowed him in his judgment.