037-NLR-NLR-V-47-AHAMADULEVVEPODY-Appellant-and-UTHUMLEVVE-Responddent.pdf
A.hamadulewepody v. Uthumlewe.
105
1846Present: J aye til eke and Rose JJ.AHAMADULi^V VEPODT, Appellant, and UTHUMLEWE,Respondent.265-—D. C. Batlicaloa, 530.
Contract—Mortgage—Loan of paddy—Condition for redemption of mortgage—Return of paddy or its value at date of demand'—Computation of sumnecessary for redemption of mortgage.
Plaintiff borrowed a certain quantity of paddy worth Its. 500 agreeingto return that quantity or to pay its market value at the time whendemand was made. He executed a usufructuary mortgage bond tosecure the loan.
H 16792 (8/68)
106
JAYKTILEKE J.—Ahamadulewepody «. Uthumlewe.
In an action brought by plaintiff to have the mortgage bond redeemedby payment of money—
Held, that the sum required for redemption was the value of the paddyat the date of the action, although it had risen considerably after theexecution of the mortgage and amounted to Rs. 2,026.
PPEAL from a judgment of the District Judge of Batticaloa.
S. Nadesan (with him N. Nadarasa), for the defendant, appellant.
C. E. S. Perera (with him T. B. Disaanayake), for the plaintiff,respondent.
Cur. adv. vult.
January 29, 1946. Jayetieeke J.—
On August 4, 1939, the plaintiff borrowed from the defendant 46avanams of paddy of the value of Rs. 500 promising to return it or topay its value on demand. He executed a mortgage bond hypothecatinga field called Kura Kalaikadu to secure the defendant. P 1 inter aliaprovides as follows :—
That the defendant should have the right to take the produce of
the field that was hypothecated until P 1 was redeemed.
That the plaintiff should pay the debt and redeem the bond on.
demand.
If the plaintiff failed to redeem the bond on demand the defendant
would have the right to recover from the plaintiff the quantityof paddy lent by him or its value at the current market priceat Puliantivu at the time.
The defendant entered into possession of the field hypothecated to himafter the execution of P 1 and is still in possession. It was admitted byboth parties that the price of paddy rose considerably after the executionof P 1, and that at the date of the institution of the action the price wasRs. 45 per avanam. The plaintiff instituted this action to have PIredeemed on payment of Rs. 500, which was the price of the paddy at thedate of the execution of P 1. The defendant contended that he wasentitled to the return of the 45 avanams of paddy lent by him or to thepayment of its value at the date of the action, namely, Rs. 2,025. Thetrial Judge held that the rights of the parties must be determined asthey stood at the date of the execution of P 1 and entered judgment forthe plaintiff as prayed for in the plaint. I think the trial Judge waswrong in his conclusion on this point. In my view this case falls to bedecided simply and solely upon the perfectly plain words of the bond.We are not to make a new agreement for the parties or to speculate howthey would have dealt with the matter if they had anticipated a rise inthe price of paddy. According to P 1 the plaintiff agreed to return thepaddy or to pay its market value at the time when demand was made.He is bound by that agreement. I would set aside the judgment appealedfrom and dismiss the plaintiff’s action with costs here and in the courtbelow reserving to the plaintiff the right to bring a fresh action if he is soadvised.
Rose J.—I agree.
Appeal allowed.