Madras High Court
A.Krishna Samy Naicker vs A.Bagavathi Ammal on 19 April, 2021
1 S.A.(MD)NO.103 OF 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.103 of 2012
A.Krishna Samy Naicker ... Appellant/Appellant/
Plaintiff
Vs.
1. A.Bagavathi Ammal
2. V.Kanagavalli
3. S.Shanmuga Parvathi ... Respondents/
Respondents/Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 29.06.2010
passed in A.S.No.7 of 2009 on the file of the Principal District
Juge, Thoothukudi, confirming the Judgment and Decree dated
07.01.2009 passed in O.S.No.13 of 2007 on the file of the
Subordinate Judge, Kovilpatti.
For Appellants : Mr.P.Subbaraj
For R-1 to R-3 : No appearance.
***
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2 S.A.(MD)NO.103 OF 2012
JUDGMENT
The plaintiff in O.S.No.13 of 2007 on the file of the
Sub Court, Kovilpatti, is the appellant in this second appeal.
2. The case of the plaintiff is that on 24.09.1998
defendants 1 and 2 borrowed a sum of Rs.1,50,000/- from the
plaintiff and executed Ex.A.1 Mortgage Deed with respect to
the schedule property. It was a registered mortgage. The
mortgagors agreed to redeem the mortgage within a period of
four years from the date of mortgage. They agreed to pay
interest at 12% p.a. The case of the plaintiff is that the
defendants neither paid any interest nor they came forward to
redeem the mortgage. Instead, they sold the property in
favour of the third defendant vide Ex.A.5 dated 28.02.2007.
When the plaintiff became aware of the same, he caused to
issue Ex.A.2 notice dated 06.03.2007. The defendants sent a
reply Ex.A.4 dated 12.03.2007 containing untenable
averments. Since the terms and conditions for discharging the
mortgage was not complied with, the plaintiff filed the
aforesaid suit. In the said suit, defendants 1 and 2 remained
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3 S.A.(MD)NO.103 OF 2012
ex-parte. The third defendant alone entered appearance
through counsel and she denied the claim of the plaintiff. The
plaintiff examined himself as P.W.1 and marked Ex.A.1 to
Ex.A.5. The husband of the third defendant was examined as
D.W.1 and Ex.B.1 and Ex.B.2 were marked. The learned trial
Judge vide Judgment and Decree dated 07.01.2009, decreed
the suit substantially. The defendants were directed to pay the
mortgage amount of Rs.1,50,000/-. As regards interest, the
defendants were directed to pay on the mortgage amount at
12% with effect from 28.02.2007. In other words, the plaintiff
was denied interest from the date of mortgage that is on
24.09.1998. Aggrieved by the denial of interest for the
aforesaid period, the plaintiff filed A.S.No.7 of 2009 before the
Principal District Court, Thoothukudi. By Judgment and
Decree dated 29.06.2010, the Judgment and Decree of the
trial Court was confirmed and the first appeal was dismissed.
Challenging the same, this second appeal came to be filed.
3. This second appeal was admitted on the following
substantial question of law:-
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4 S.A.(MD)NO.103 OF 2012
“ Whether the Courts below are
justified in directing the respondents to pay
interest only from 28.02.2007, instead of, from
the date of execution of mortgage deed? “
4. Though the respondents have been served and
their names have been printed in the cause list, there is no
appearance on their behalf through counsel.
5. There is no dispute about the validity of the
mortgage deed created in favour of the plaintiff vide Ex.A.1. In
fact the Courts below have concurrently found in favour of the
plaintiff. The only question that arises for my consideration is
whether the Courts below are justified in denying payment of
interest to the plaintiff for the period from the date of
execution of mortgage till the date of sale in favour of the
third defendant, namely, S.Shanmuga Parvathi. As rightly
pointed out by the learned counsel for the appellant,
defendants 1 and 2 remained exparte before the trial Court. It
is not their case that they had paid interest to the plaintiff. No
evidence has been adduced to show payment of interest for
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5 S.A.(MD)NO.103 OF 2012
the aforesaid period. When there is no evidence adduced by
the defendants indicating payment of interest for the period
from the date of mortgage, the Courts below were absolutely
not justified in presuming that the plaintiff would have
received interest. There is no legal basis for invoking such
presumption against the plaintiff and in favour of the
defendants. Therefore, I interfere with the Judgment and
Decree of the Court below to the extent there is denial of
interest to the plaintiff in respect of the aforesaid period. The
substantial question of law is answered in favour of the
plaintiff.
6. This second appeal is allowed. No costs.
19.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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6 S.A.(MD)NO.103 OF 2012
G.R.SWAMINATHAN,J.
PMU
To:
1. The Principal District Judge,
Thoothukudi.
2. The Subordinate Judge,
Kovilpatti.
3. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court, Madurai.
S.A.(MD)No.103 of 2012
19.04.2021
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7 S.A.(MD)NO.103 OF 2012
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