Madras High Court
R.Soundararaj vs R.Selvaraj on 24 February, 2021
S.A.Nos.95 of 2008 & 193 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.Nos.95 of 2008 & 193 of 2010
R.Soundararaj ... Appellant in both
the second appeals.
Vs.
R.Selvaraj ... Respondent in both
the second appeals.
Prayer in S.A.No.95 of 2008: The second appeal has been filed under
Section 100 of C.P.C. against the judgment and decree dated 03.04.2006
passed in A.S.No.116 of 2005 on the file of the Principal District Court,
Salem, partly allowing the appeal and reversing the judgment and decree
dated 04.08.2005 passed in O.S.No.538 of 2000 on the file of the Additional
Subordinate Court, Salem.
Prayer in S.A.No.193 of 2010: The second appeal has been filed under
Section 100 of C.P.C. against the judgment and decree dated 31.07.2009
passed in A.S.No.90 of 2008 on the file of the Additional Subordinate
Court, Salem, confirming the judgment and decree dated 05.02.2008 passed
in O.S.No.393 of 2007 on the file of the Principal District Munsif Court,
Salem.
https://www.mhc.tn.gov.in/judis/
S.A.Nos.95 of 2008 & 193 of 2010
For Appellant in both : Mr.K.Ponmani
the second appeals. for M/s.V.Rajesh
For Respondent in both : Mr.P.Jagadeesan
the second appeals.
COMMON JUDGMENT
Challenge in this second appeal No.95 of 2008 is made to the
judgment and decree dated 03.04.2006 passed in A.S.No.116 of 2005 on the
file of the Principal District Court, Salem, partly allowing the appeal and
reversing the judgment and decree dated 04.08.2005 passed in O.S.No.538
of 2000 on the file of the Additional Subordinate Court, Salem.
2.Challenge in this second appeal No.193 of 2010 is made to the
judgment and decree dated 31.07.2009 passed in A.S.No.90 of 2008 on the
file of the Additional Subordinate Court, Salem, confirming the judgment
and decree dated 05.02.2008 passed in O.S.No.393 of 2007 on the file of the
Principal District Munsif Court, Salem.
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S.A.Nos.95 of 2008 & 193 of 2010
3.The appellant in the second appeal Nos.95 of 2008 & 193 of 2010
is the plaintiff in O.S.No.538 of 2000 and the defendant in O.S.No.393 of
2007.
4.The respondent in the abovesaid appeals is the defendant in
O.S.No.538 of 2000 and the plaintiff in O.S.No.393 of 2007.
5.O.S.No.538 of 2000 has been laid by the appellant for recovery of
money based on the loan document.
6.O.S.No.393 of 2007 has been laid by the respondent for the relief of
mandatory injunction directing the appellant to return the original settlement
deed dated 04.09.1997 standing in the name of the respondent.
7.The case of the appellant is that the respondent, who is his brother-
in-law, had obtained a sum of Rs.1,05,800/- from him and in evidence
thereof, executed the loan document on 19.01.1998 and also assured in
default of the payment of the borrowed sum, he would sell a portion of his
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S.A.Nos.95 of 2008 & 193 of 2010
property at the rate of Rs.335/- per sq.ft. in view of the debt received from
the appellant and as according to the appellant, the respondent had failed to
pay the borrowed sum and had only paid a total sum of Rs.900/- in three
installments as averred in the plaint. According to the appellant, he had sent
a notice to the respondent calling upon him to pay the borrowed sum and the
same had been evaded to be received by the respondent and the respondent
sent a notice containing the false allegations as if he had paid a sum of
Rs.90,000/- towards the loan borrowed and the said discharge is totally false
and the appellant sent a suitable reply to the notice sent by the respondent
and accordingly, it is put forth that the suit has come to be laid by the
appellant in O.S.No.538 of 2000.
8.The respondent resisted the abovesaid suit contending that out of
the borrowed sum by way of the loan document dated 19.01.1998, he had
paid totally a sum of Rs.90,000/- in three installments on different dates and
the necessary endorsements have been made on the reverse side of the loan
document and only a small amount remains to be paid and when the
respondent approached the appellant with the amount to clear the loan and
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S.A.Nos.95 of 2008 & 193 of 2010
sought for the return of the original document handed over to the appellant
at the time of lending of the loan amount, the appellant refused to hand over
the document and put forth the case that the respondent had agreed to sell
the property to the appellant and on the other hand, the respondent had not
agreed to transfer any property to the appellant at the rate of Rs.335/- per
sq.ft. in the event of default of the payment of the borrowed sum and hence,
according to the respondent, he had caused the legal notice to be issued and
further, put forth the case that the appellant had materially altered the loan
document by putting a dot in between the figures, altering the amounts that
has been paid by the respondent as Rs.350/- instead of Rs.35,000/- as
Rs.150/- instead of Rs.15,000/- and as Rs.400/- instead of Rs.40,000/- and
with the malafide intention on the basis of altered loan document, he had
come forward with the false case and hence, the suit is liable to be
dismissed.
9.In support of the case of the appellant in O.S.No.538 of 2000, PWs1
& 2 were examined and Exs.A1 to A8 were marked. On the side of the
respondent, DWs1 & 2 were examined and no document has been marked.
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S.A.Nos.95 of 2008 & 193 of 2010
10.On an appreciation of the materials placed on record and the
submissions put forth by the respective parties, the trial Court was pleased
to dismiss the abovesaid suit laid by the appellant. On appeal by the
appellant, the first appellate Court, after concurring with the reasonings of
the trial Court that the loan document has been altered by the appellant and
further, holding that the respondent had in toto paid a sum of Rs.90,000/-
towards the loan amount, accordingly, partly allowing the appeal, held that
the respondent is liable to pay only the remaining sum of Rs.15,800/-
towards the loan and resultantly, after reversing the judgment and decree of
the trial Court partly decreed the suit laid by the appellant in O.S.No.538 of
2000. Impugning the judgment and decree of the Courts below, the appeal
has been laid by the appellant in S.A.No.95/2008.
11.According to the respondent, following the judgment and decree
passed in A.S.No.116 of 2005 on the file of the Principal District Court,
Salem, dated 03.04.2006, he had endeavoured to pay the remaining sum to
the appellant and seek the original settlement deed entrusted by him to the
appellant on the date of the borrowal of the loan amount and as the
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S.A.Nos.95 of 2008 & 193 of 2010
appellant had refused to receive the remaining amount and also failed to
return the settlement deed, despite the issuance of the notice, according to
the respondent, he has been necessitated to lay the suit for the relief of
mandatory injunction seeking for the return of the settlement deed entrusted
by him to the appellant and hence, the suit has been laid by him with
reference to the same in O.S.No.393 of 2007.
12.The abovesaid suit laid by the respondent has been resisted by the
appellant contending that it is false to state that the respondent had
approached him to pay the balance amount towards the loan and the loan
document also contains the recitals with reference to the transferring his
property in default of the payment of the borrowed amount and no direction
had been given in the suit laid by the appellant to handover the settlement
deed to the respondent and accordingly, contended that there is no cause of
action for the suit laid by the respondent and prayed for the dismissal of the
same.
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S.A.Nos.95 of 2008 & 193 of 2010
13.In support of the respondent's case in O.S.No.393 of 2007, PW1
was examined and Exs.A1 to A8 were marked. On the side of the appellant,
DW1 was examined and no document has been marked.
14.On an appreciation of the materials available on record and the
submissions put forth by the respective parties, the Courts below were
pleased to grant the relief in favour of the respondent as prayed for in the
suit laid by him in O.S.No.393 of 2007. Impugning the same, the appellant
has preferred the second appeal in S.A.No.193 of 2010.
15.At the time of admission of the second appeal in S.A.No.193 of
2010, the following substantial questions of law were formulated for
consideration:
"1.Whether the suit is maintainable, when
the controversy between the parties is yet to be
resolved in S.A.No.95 of 2008?
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S.A.Nos.95 of 2008 & 193 of 2010
2.Whether the plaintiff is precluded from
raising such a claim in the present suit,
particularly when such a right was available by
way of a counter claim in the earlier proceedings
O.S.No.538 of 2000?."
16.As far as the second appeal No.95 of 2008 is concerned, only
Notice of motion has been ordered and the same has not been admitted.
17.Considering the pleas put forth by the respective parties in both
the suits, as the issue involved in both the matter and the parties are closer
linked to each other, the submissions have been made by the respective
counsel in both the appeals simultaneously.
18.From the pleas and the materials placed on record, it is found that
the appellant has lent a sum of Rs.1,05,800/- to the respondent and in
connection with the same, the loan document dated 19.01.1998 has been
executed. Now, according to the respondent, towards the loan secured, he
had repaid a sum of Rs.90,000/-, whereas, according to the appellant, the
respondent has only repaid a sum of Rs.900/-, the endorsements of
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S.A.Nos.95 of 2008 & 193 of 2010
repayment has been obtained in the loan document. On a verification of the
same, as rightly concluded by the Courts below, there is apparently material
alterations in the endorsements by putting the dots in the figures. The
appellant has materially altered the endorsements, as if the respondent only
paid a sum of Rs.350/- instead of Rs.35,000/-, Rs.150 instead of Rs.15,000/-
and Rs.400/- instead of Rs.40,000/-. The Courts below had, on a correct
appreciation of the available materials, held that the material alteration had
been committed by the appellant in the loan document only subsequent to
the execution of the same without the knowledge of the respondent and the
abovesaid determination of the Courts below that the loan document in
question had been materially altered by the appellant centering on factual
matrix and when the reasonings and conclusions of the Courts below with
reference to the same being found to be on a correct appreciation of the
available materials on record and not shown to be in any manner perverse,
illogical and irrational, at this stage of the second appeal, I do not find any
valid reason warranting interference with the same.
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S.A.Nos.95 of 2008 & 193 of 2010
19.Accordingly, the appellate Court, inasmuch as the respondent has
only paid a sum of Rs.90,000/-, had directed him to pay the remaining
amount to the appellant and accordingly, disposed of the appellant's suit.
20.The abovesaid determination of the Courts below, particularly, the
appellate Court in directing the respondent to pay the balance amount only,
the appellant's counsel is unable to show, in what manner the abovesaid
determination of the appellate Court or the determination of the trial Court
in dismissing his suit in entirety are liable to be set aside. When the plea of
discharge put forth by the respondent had been accepted by the Courts
below based on the appreciation of the materials on record in the correct
perspective and when as above pointed out, the loan document had been
materially altered by the appellant with the malafide intention, the judgment
and decree of the appellate Court passed in A.S.No.116 of 2005 do not
warrant any interference and accordingly, I do not find any substantial
question of law involved in the second appeal No.95 of 2008.
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S.A.Nos.95 of 2008 & 193 of 2010
21.In O.S.No.538 of 2000, the appellant has clearly admitted that the
title document deed had been entrusted to him by the respondent at the time
of receiving the loan. Now, according to the respondent, when he
approached the appellant to pay the balance amount and retrieve the title
document, as the appellant had refused to accede to his request one way or
the other, he had been necessitated to lay the suit in O.S.No.393 of 2007.
22.Considering the materials available on record, the Courts below
had particularly after noting the loan document of the appellant in
O.S.No.538 of 2000 that the respondent had entrusted the title document to
him at the time of the advancement of the loan, on that footing, rightly
concluded that the appellant is to hand over the title document, particularly,
when the respondent is endeavoring to settle the entire loan amount as
directed by the appellate Court in A.S.No.116 of 2005 on the file of the
Principal District Court, Salem. The reasonings and conclusions of the
Courts below directing the appellant to return the settlement deed to the
respondent being found to be based on the proper appreciation of the
available materials on record and when the entrustment of title deed has
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S.A.Nos.95 of 2008 & 193 of 2010
been clearly admitted by the appellant in the suit was laid by him, the
judgment and decree of the Courts below passed in O.S.No.393 of 2007, do
not warrant any interference.
23.The contention has been put forth by the appellant's counsel that
the relief of mandatory injunction should have been sought for by the
respondent in O.S.No.538 of 2000 itself. However, when the parties are
vying with each other as regards the claim and discharge of loan amount
one way or the other and the issues between the parties had been finally
resolved by the appellate Court in A.S.No.116 of 2005, in such view of the
matter, there is no question of the respondent seeking for a counter claim
qua the return of the title deed in O.S.No.538 of 2000. Therefore, the
abovesaid point projected by the appellant as a question of law in
S.A.No.193 of 2010 is totally unacceptable.
24.Considering the reasons abovestated, in my considered opinion, no
substantial question of law is involved in the second appeal No.193 of 2010.
Be that as it may, the substantial questions of law formulated in the second
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S.A.Nos.95 of 2008 & 193 of 2010
appeal are accordingly answered against the appellant and in favour of the
respondent.
In conclusion, the judgment and decree dated 03.04.2006 passed in
A.S.No.116 of 2005 on the file of the Principal District Court, Salem, partly
allowing the appeal and reversing the judgment and decree dated
04.08.2005 passed in O.S.No.538 of 2000 on the file of the Additional
Subordinate Court, Salem and the judgment and decree dated 31.07.2009
passed in A.S.No.90 of 2008 on the file of the Additional Subordinate
Court, Salem, confirming the judgment and decree dated 05.02.2008 passed
in O.S.No.393 of 2007 on the file of the Principal District Munsif Court,
Salem are confirmed. Accordingly, both the second appeals are dismissed
with costs. Consequently, connected miscellaneous petition, if any, is
closed.
Index : Yes/No 24.02.2021
Internet:Yes/No
sms
Copy to
https://www.mhc.tn.gov.in/judis/
S.A.Nos.95 of 2008 & 193 of 2010
1.The Principal District Court, Salem.
2.The Additional Subordinate Court, Salem.
3.The Principal District Munsif Court, Salem.
4.The Section Officer, V.R.Section, High Court, Madras.
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S.A.Nos.95 of 2008 & 193 of 2010
T. RAVINDRAN, J.
sms
S.A.Nos.95 of 2008 & 193 of 2010
24.02.2021
https://www.mhc.tn.gov.in/judis/
