Madras High Court
S.Vijaya vs M.Aravind on 26 July, 2021
A.S.No.324 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED DATE : 26.07.2021
PRONOUNCED DATE : 30.07.2021
Coram:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
A.S.No.324 of 2017
S.Vijaya ....Appellant/ plaintiff
Vs.
1.M.Aravind
2.A.Muralidharan ... Respondents/Defendants
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 23.01.2017 in O.S.No.220 of 2015 on the
file of the III Additional District and Sessions Judge, Thiruvallur,
Poonamallee.
For Appellant : Mr.G.Saravanan
For Respondents : Mr.K. Azhagu Raman
JUDGMENT
The First Appeal is filed against the judgment and decree dated
23.01.2017 passed in O.S.No.220 of 2015 on the file of the III Additional
District and Sessions Judge, Thiruvallur, Poonamallee.
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A.S.No.324 OF 2017
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial Court.
3. The suit is filed for redemption of mortgage.
4. The case of the plaintiff is that the plaintiff approached
the second defendant for a loan of Rs.20,00,000/-. He agreed to lend the
said sum in the name of the first defendant and the security of the
property belonged to the plaintiff. The second defendant agreed that the
plaintiff can pay interest at the rate of 24% only for Rs.5,00,000/- and the
balance amount would be free of interest. Accordingly, the plaintiff
should have pay Rs.60,000/- per month, commencing from March 2014,
in which, a sum of Rs.10,000/- towards interest and Rs.50,000/- towards
principal amount. Accordingly, the petitioner has paid a sum of
Rs.17,50,000/- after deduction of Rs.2,50,000/- from Rs.20,00,000/- and
it was represented by the defendants that a sum of Rs.40,000/- could be
adjusted towards interest and Rs.60,000/- towards stamp duty. The
registration charges at Rs.1,50,000/- and a mortgage deed dated
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A.S.No.324 OF 2017
15.10.2013 was registered as Doc.No.14111/2013 in favour of the first
defendant. Accordingly, the plaintiff regularly made payments up to
05.05.2015 and so far, she had paid Rs.10,20,000/-, in which,
Rs.1,70,000/- paid towards interest and Rs.8,50,000/- towards repayment
of part of principal amount. If the amount which was retained by the
defendants included a sum of Rs.10,00,000/- paid towards principal by
the plaintiff, when the plaintiff requested for redemption of mortgage, the
second defendant refused to do the same and demanded Rs.20,00,000/-
for redemption of mortgage.
5. The plaintiff has further stated that she is in due of only
Rs.10,00,000/- towards principal and sum of Rs.30,000/- as interest as on
September, 2015 and she is willing to pay the same and demanded the
defendants to receive the said amount and execute the deed of
cancellation of mortgage. Hence, the suit.
6. Resisting the same, the defendants filed written statement and
submitted that the plaintiff has so far paid interest of Rs.7,80,000/- for 13
months, for which, the husband of the plaintiff used to get signatures in
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A.S.No.324 OF 2017
the hand papers for payments made by him. The plaintiff and her
husband mortgaged the suit schedule property and obtained a loan of
Rs.20,00,000/-. Apart from the earlier hand loan of Rs.5,00,000/- and
unregistered mortgage loan of Rs.5,00,000/- dated 10.10.2013, the
husband of the plaintiff approached the second defendant for cash loan of
Rs.5,00,000/-, for which, the plaintiff issued a cheque bearing
No.017725 for a sum of Rs.5,00,000/- drawn on Indian Bank dated
18.06.2013 for security purpose. Thereafter, again they approached for
another cash loan of Rs.5,00,000/- for the purpose of developing
infrastructure and hotel business and executed an unregistered mortgage
deed dated 10.10.2013 and obtained a sum of Rs.5,00,000/-. Further,
they also agreed to repay the said sum with interest at 24%, thereby the
plaintiff and her husband obtained a total loan of Rs.30,00,000/-. So far,
they have paid interest of Rs.7,80,000/-for 13 months. As per the
agreement, the plaintiff and her husband are liable to pay the principal
amount of Rs.30,00,000/- together with accrued interest of
Rs.15,60,000/-. After deducting the interest, the remaining amount of
Rs.37,80,000/- is due as on 05.12.2015. Therefore, he prayed for
dismissal of the suit.
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A.S.No.324 OF 2017
7. On perusal of the pleadings, it is seen that the plaintiff
approached the second defendant for a loan of Rs.20,00,000/-, for which,
the second defendant agreed to lend the said sum on condition that the
plaintiff can pay interest at the rate of 24% only for Rs.5,00,000/- and the
balance amount would be free of interest. Accordingly, the plaintiff
should have paid Rs.60,000/- per month, commencing from March, 2014,
in which, a sum of Rs.10,000/- towards interest and Rs.50,000/- towards
principal and a sum of Rs.40,000/- could be adjusted towards interest and
Rs.60,000/- towards stamp duty. Accordingly, the petitioner has paid a
sum of Rs.17,50,000/- after deduction of Rs.2,50,000/- from
Rs.20,00,000/-. A mortgage deed dated 15.10.2013 was registered as
Doc.No.14111/2013 in favour of the first defendant. Accordingly, the
plaintiff regularly make payments and up to 05.05.2015, she had paid
Rs.10,20,000/-, in which, Rs.1,70,000/- paid towards interest and
Rs.8,50,000/- towards repayment of part of principal amount. As per the
agreement, the plaintiff and her husband are liable to pay the principal
amount of Rs.30,00,000/- together with accrued interest of
Rs.15,60,000/-. After deducting the interest, the remaining amount of
Rs.37,80,000/- is due as on 05.12.2015.
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A.S.No.324 OF 2017
8. On hearing the rival pleadings, the learned Trial Court Judge
framed the following issues for determination of the suit :-
“1/ ghf;fp fld; bjhifia 6# tl;oa[ld; gpujpthjp bgw;Wf;
bfhz;L. 15/10/2013 njjpapl;l mlkhd fld; gj;jpuk; kPl;fg;gl;lJ vd;w
mlkhdf; fld; kPl;g[ ghpfhuk; thjpf;F fpilf;fjf;fjh>
2/ 15/10/2013 njjpapl;l mlkhdf; fld; gj;jpuk; 1. 2
gpujpthjpfshy; uj;J bra;ag;gl ntz;Lk; vd;w braYj;Jf; fl;lis
cj;jut[ thjpf;F fpilf;fj; jf;fjh>
3/ 1. 2 gpujpthjpfs; brhj;jpd; mry; Mtz';fis xg;gilf;f
ntz;Lk; vd;w braYj;Jf; fl;lis cj;jut[ thjpf;F fpilf;fj;
jf;fjh>
4/ chpik khw;wk; tpy;y';fj;jpw;F vjpuhd epue;jpu cWj;Jf;
fl;lis ghpfhuk; thjpf;F fpilf;fj; jf;fjh>
5/ tHf;fpw;fhd tHf;F K:yk; vHtpy;iy vd;gJ cz;ikah>
6/ ntW vd;d ghpfhuk;>”
9. In support of the plaintiff's case, P.W.1 was examined and four
documents were marked as Ex.A.1 to Ex.A.4. On the side of the
defendants, D.W.1 and D.W.2 were examined and two documents were
marked as Ex.B.1 and Ex.B.2.
10. On considering the oral and documentary evidences adduced
by the respective parties and the submission made by the learned
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A.S.No.324 OF 2017
counsel, the trial Court had dismissed the suit. Aggrieved by the same,
the plaintiff has filed the present Appeal Suit.
11. The learned counsel for the appellant would submit that the
court below had gone beyond the issues framed and calculated the
previous loan and dismissed the suit. The suit itself was filed for
redemption of mortgage executed by the plaintiff dated 15.10.2013 vide
Doc. No.14111/2013 for the loan obtained by her to the tune of
Rs.20,00,000/-.
12. While that being so, the trial court ought not to have go
beyond the issues and concluded that the plaintiff is not entitled for the
suit relief when the plaintiff and her husband borrowed a sum of
Rs.30,00,000/-. He further submitted that a mortgage deed was executed
by the first defendant whereas he was not examined by the defendants
and as such, the court below ought to have draw adverse inference and
decreed the suit. The Evidence Act does not permit the second defendant
to depose when the mortgage deed was executed by the first defendant.
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A.S.No.324 OF 2017
13. In fact, the defendants failed to file any counter claim or
separate suit even till today for further loan of Rs.10,00,000/- against the
plaintiff or her husband. The defendants marked the cheque and the
unregistered mortgage deed only through their evidences and not
annexed with the written statement. If the defendants filed those
documents along with the written statement, the plaintiff could have
denied the same appropriately. Therefore, he prayed for decreeing the
suit.
14. Per contra, the learned counsel for the defendants submitted
that paragraph No.2 of the registered mortgage deed dated 15.10.2013
was mistakenly added from paragraph No.2 of the unregistered mortgage
deed dated 10.10.2013. When the defendants lent a loan of
Rs.20,00,000/-, there is absolutely no necessity for them to reduce the
principal amount to Rs.5,00,000/- for interest and the remaining amount
shall be free of interest. In the third paragraph, he categorically stated
that the simple mortgage as security for the said mortgage of
Rs.20,00,000/-, wherein, the paragraph No.2 says that the mortgagor
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A.S.No.324 OF 2017
shall pay the mortgagee a sum of Rs.5,00,000/-. Therefore, both the
paragraphs are in no way connected to each other and due to
inadvertence, the second paragraph of the unregistered mortgage deed
had been included in the registered mortgage deed. The unregistered
mortgage deed was marked as Ex.B2 and executed on borrowal of
Rs.5,00,000/-
15. At that time, another sum of Rs.5,00,000/- was borrowed by
plaintiff's husband and the plaintiff had issued a cheque for a sum of
Rs.5,00,000/- dated 18.06.2013 which was marked as Ex.B1. That apart
interest was fixed at 2% per month. Accordingly, they paid a sum of
Rs.7,80,000/- which is correlated with the rate of interest for a sum of
Rs.20,00,000/- and as such, the plaintiff ought to have pay the balance
amount with interest at 2% per month. Therefore, he prayed for dismissal
of the suit.
16. Heard Mr.G.Saravanan, learned counsel for the appellant and
Mr.K.Azhagu Raman, learned counsel for the respondents 1 and 2.
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A.S.No.324 OF 2017
17. The plaintiff had borrowed a sum of Rs.20,00,000/- and
executed a mortgage deed dated 15.10.2013. On perusal of mortgage
deed, which was marked as Ex.A1, the paragraph No.2 reads as
follows:-
“ 2. The Mortgagor shall pay the mortgaged the
said sum of Rs.5,00,000/- (Rupees Five Lakhs only) on
demand with interest thereon at the rate of 2% per month
from the date of the execution of these presents till the
date of payment, such interest being payable monthly on
or before the 6th day of every month.”
18. The unregistered mortgage deed dated 10.10.2013 was
executed by the plaintiff and marked as Ex.B2. The paragraph No.2 of
the mortgage deed reads as follows:-
“2. The Mortgagor shall pay the mortgagee the
said sum of Rs.5,00,000/- (Rupees Five Lakhs only) on
demand with interest thereon at the rate of 2% per month
from the date of the execution of these presents till the
date of payment, such interest being payable monthly on
or before the 6th day of every month.”
19. Both the paragraphs are one and the same whereas in the
Registered mortgage deed, paragraph Nos.1 and 3 have categorically
stated about the amount borrowed by the plaintiff. Therefore, the
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A.S.No.324 OF 2017
paragraph No.2 in the registered mortgage deed is totally unconnected
with other paragraphs. When the defendants are running money lending
business, they would not have agreed for the said clause, since out of the
total sum of Rs.20,00,000/-, the plaintiff has to pay interest only for the
sum of Rs.5,00,000/- as per paragraph No.2 of the Ex.A1.
20. As pointed out by the learned counsel for the respondents,
there was a mistake and it cannot be taken as an advantage by the
plaintiff for redemption of mortgage deed.
21. In fact, admittedly the interest paid by the plaintiff to the tune
of Rs.7,80,000/-. As per the mortgage deed, they have to pay 2% interest
per month and accordingly, they paid interest for the total sum of
Rs.30,00,000/-, which was borrowed by the plaintiff and her husband on
18.06.2013 and 10.10.2013. Therefore, the defendants need not mention
the earlier loan transaction in the mortgage deed dated 15.10.2013 since
for the earlier borrowals, the plaintiff issued cheques and executed
unregistered mortgage deed for a sum of Rs.5,00,000/- each. Both were
marked as Ex.A1 and Ex.A2.
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A.S.No.324 OF 2017
22. Even according to the plaintiff, when she was in need of funds,
had approached the second defendant for a loan of Rs.20,00,000/-, the
second defendant agreed to lend loan in the name of the first defendant
and the property to be mortgaged in the name of first defendant, who is
none other than son of the second defendant. Further, the
Ex.A1/mortgage deed is also not denied by the plaintiff. Therefore, non-
examination of first defendant is not fatal to the case and the trial court
need not draw adverse inference against the second defendant for non-
examination of the first defendant. Therefore, the court below had rightly
dismissed the suit and it does not warrant any interference by this court.
23. In fine, the Appeal Suit is dismissed. No costs.
30.07.2021
Index:Yes / No
Internet:Yes/No
Speaking Order/Non-Speaking Order
gv
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A.S.No.324 OF 2017
To
The III Additional District and Sessions Judge,
Thiruvallur,
Poonamallee.
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A.S.No.324 OF 2017
G.K.ILANTHIRAIYAN.,J.
Gv
Pre-Delivery Judgment made in
A.S.No.324 of 2017
30.07.2021
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