Madras High Court
E.Rajamanicka Mudaliyar ... vs T.Tamaraiselvam ...Plaintiff/ on 25 June, 2021
S.A.No.1058 of 2009
and M.P.No.1 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.06.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1058 of 2009
and
M.P.No.1 of 2009
1.E.Rajamanicka Mudaliyar (deceased)
2.Anjalammal (deceased)
3.T. Kamatchi ...Defendants/Appellants/Appellants
Vs.
T.Tamaraiselvam ...Plaintiff/Respondent/Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 20.06.2008 in
A.S.No.65 of 2007 on the file of the learned Sub Judge, Kancheepuram
partly allowing the appeal and partly confirming the Judgment and
Decree dated 18.01.2006 in O.S.No.627 of 2004 on the file of the
learned Principal District Munsif, Kancheepuram.
For Appellants : Mr.R. Ganesh Babu
For Respondent : Served - No appearance
1/9
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
JUDGMENT
The defendants who have lost before the Courts below are the
appellants before this Court.
2.The Second Appeal arises against the Judgment and Decree in
A.S.No.65 of 2007 on the file of the learned Sub Judge, Kancheepuram
in and by which the learned Sub Judge had confirmed the Judgment
and Decree of the learned Principal District Munsif, Kancheepuram, in
O.S.No.627 of 2004.
3.The suit O.S.No.627 of 2004 was filed by the respondent herein
seeking recovery of a sum of Rs.97,000/- with interest @ 2% per
annum on the sum of Rs.50,000/- from the date of Plaint till the date of
payment, in default, the plaintiff to apply for final decree directing the
sale of the mortgaged property and also seek for the balance in case the
sale proceeds are found insufficient to discharge the Decree amount.
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
4.The case of the plaintiff was that the defendants had
approached the plaintiff for a loan and they had jointly borrowed a sum
of Rs.50,000/- and agreed to repay the sum of Rs.50,000/- together
with interest @2% per month. As a security, they had executed a
registered Mortgage Deed dated 25.08.1999. The plaintiff would
submit that contrary to the assurance, the defendants had not paid any
amount to the plaintiff. Therefore, the appellants have approached this
Court.
5.The appellants as defendants had filed a Written Statement
admitting the execution of the Mortgage Deed, but however,
contending that they had in all repaid a sum of Rs.13,500/- which
amount has not been given to credit in the suit. That apart, the
defendants also raised the plea of limitation.
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
6.The learned District Munsif, Kancheepuram, had framed the
following issues:
(1)Whether the defendants had initially borrowed a
sum of Rs.50,000/- from the plaintiff on mortgage of the
suit property?.
(2)Whether the defendants paid Rs.14,500/- towards
the debt? and
(3)To what relief sought?
However, the issues were later re-cast as follows:
(1)Whether the defendant has borrowed a sum of
Rs.50,000/- from the plaintiff and created a
mortgage of the suit property?
(2)Whether the plaintiff is entitled for interest at the
rate of 2% per annum from the date of Plaint?
(3)Whether the plaintiff is entitled for decree of
mortgage for Rs.50,000/-?
(4)Whether the plaintiff is entitled for Preliminary
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
Decree against the defendant for the balance decree
amount?
(5)To what relief?
7.The plaintiff had examined himself as P.W.1 and one Nagavel
was examined as P.W.2 and had marked Ex.A.1 – Mortgage Deed. On
the side of the defendants, one Radhakrishnan had been examined as
D.W.1 and Ex.B.1 to Ex.B.5 were marked.
8.The trial Court on considering the evidence on record held that
the defendants had proved the payment of Rs.11,250/- including the
expenses for registering the Mortgage Deed and held that the
defendants were liable to repay a sum of Rs.35,750/-. As regards the
limitation, it was found against the appellant since the suit is one for
mortgage and had been filed within a period of three years.
Challenging the said Judgment and Decree, the appellants had filed
A.S.No.65 of 2007 on the file of the learned Sub Judge,
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
Kancheepuram. The plaintiff had not filed any Cross Appeal.
9.The Appellate Court has modified the Decree only with
reference to cost since the trial Court has awarded costs for the entire
sum of Rs.50,000/- and not on Rs.35,750/-. In all other respects, the
Judgment and Decree of the trial Court was confirmed. Challenging
the same, the appellants are before this Court.
10.Mr.R. Ganesh Babu, learned counsel who appeared on behalf
of the appellants would submit that the property in question belonged
to the Temple and therefore, the very mortgage was not a valid
mortgage and the decree is a nullity. Except for the above arguments,
no other arguments were put forth on the side of the appellants.
11.A perusal of the records would show that in the Written
Statement filed by the defendants, the only defence that was taken was
that the appellant had repaid a portion of the amount and that the suit
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
was barred by limitation. The argument now put forward has been
argued for the first time only before this Court. The
respondent/plaintiff though served has not entered appearance either
through person or through pleader.
12.Though the argument is taken for the first time the fallacy in
the same has to be pointed out since the suit is only with reference to
the superstructure which has been constructed by the appellants and the
schedule in Ex.A.1 - Mortgage Deed describes the property that is
mortgaged as the leasehold right to the site and absolute right to the
building constructed thereon. The mortgage clearly describes the site
as belonging to the Arulmigu Ekambaranathar Temple, Kancheepuram.
Therefore, the arguments put forward by the appellants that the suit as
filed is not maintainable is totally unsustainable. The suit has been
filed only on the basis of Ex.A.1 - Mortgage Deed.
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
Considering the above, no Substantial Question of Law has been
made out and consequently, the Second Appeal is dismissed and the
Judgment and Decree of the learned Sub Judge, Kancheepuram, in
A.S.No.65 of 2007 is confirmed. There shall be no order as to costs.
Consequently, connected Miscellaneous Petitions is closed.
25.06.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Sub Judge,
Kancheepuram.
2.The Principal District Munsif,
Kancheepuram.
https://www.mhc.tn.gov.in/judis/
S.A.No.1058 of 2009
and M.P.No.1 of 2009
P.T. ASHA, J,
mps
S.A.No.1058 of 2009
and M.P.No.1 of 2009
25.06.2021
https://www.mhc.tn.gov.in/judis/
