Yadavendra Bhatta v. Srinivasa Babhu

The second defendant executed a mortgage in favour of the 1st defendant. Out of the consideration, a small portion was not paid. The plaintiff sues for the recovery of that balance, on the strength of an assignment, made by the 3rd 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. Rajagopala Aiyar…Plaintiff v. Davood Rowther…Defendant . 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 Avulla, 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 Sheikh Galim v. Sadarjan Bibi.

It was open to the mortgagor to sue the mortgagee for damages, but a right to obtain damages cannot be transferred. See Sect. 6 (e) of the Transfer of Property Act.

The Second Appeal, therefore, fails and is dismissed with costs.

W.S.SAppeal dismissed.