Madras High Court
Lihori Vanji Arasu vs Sree Moogambigai ... on 30 June, 2021
1 A.S.(MD)NO.86 OF 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.86 of 2019
1. Lihori Vanji Arasu
2. J.Jessie Vergin Navis ... Appellants/Defendants
Vs.
Sree Moogambigai C.T.K.C.Financiers,
Rep. by its partner,
K.Chidambaram,
S/o.Kumarappan,
No.60, A.P.Tirunelveli Town -627 006,
Tirunelveli District. ... Respondent/Plaintiff
Prayer: Appeal suit filed under Section 96 of C.P.C.,
to set aside the Judgment and Decree dated 23.10.2018
passed in O.S.No.4 of 2014 on the file of the Principal District
Court, Kanyakumari District at Nagercoil.
For Appellants : Mr.M.P.Senthil
For Respondent : Mr.R.T.Arivukumar,
for Mr.N.GA.Natraj.
***
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2 A.S.(MD)NO.86 OF 2019
JUDGMENT
The defendants in O.S.No.4 of 2014 on the file of the
Principal District Court, Kanyakumari District at Nagercoil,
are the appellants in this second appeal.
2. The respondent herein filed the said suit for
passing preliminary decree against the defendants based on
the suit mortgage.
3. The plaintiff is a finance company. According to the
plaintiff, the defendants borrowed a sum of Rs.10,00,000/- on
10.01.2008. They executed Ex.A.7 promissory note. They also
mortgaged the suit properties by deposit of the original title
deeds. The plaintiff alleged that the defendants did not repay
the principal amount or interest and that they did not come
forward to redeem the mortgage. Therefore, the plaintiff
issued Ex.A.10 notice dated 02.08.2013. The same was
returned unserved. Therefore, the suit came to be laid for
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3 A.S.(MD)NO.86 OF 2019
passing the preliminary decree against the defendants for a
sum of Rs.12,10,000/- with interest and in the event of failure
to pay the decreed amount, to pass final decree for sale of the
mortgaged properties.
4. The defendants filed written statement denying the
plaint averments. According to them, the defendants were
running a mill in Tirunelveli. The agents of C.T.K. Chit Funds
Private Ltd., approached the defendants asking them to join
the chit groups. This was some time in January 2008. When
the defendants joined the chit group, the plaintiff prevailed
upon them to execute the suit documents. The first defendant
bid for prize money in the fifth installment and received
Rs.9,70,000/-. The chit value was Rs.14,00,000/-. The first
defendant would claim that he repaid the amount through
account-transfer as well as in cash. According to the first
defendant, he cleared the entire chit liability. The finance
company was run by the sons while the chit company was run
by the father. Both the finance company and the chit company
were operating from the same building. According to the
defendants, the signed blank documents and other papers
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4 A.S.(MD)NO.86 OF 2019
obtained at the time of joining the chit group have been
misused and based on the same, the instant suit has been
instituted.
5. The learned trial Judge framed the necessary
issues. The plaintiff examined himself as P.W.1 and Ex.A.1 to
Ex.A.13 were marked. The first defendant examined himself as
D.W.1 and another person as D.W.2. Ex.B.1 to Ex.B.12 were
marked. After considering the evidence on either side, the
learned trial Judge passed preliminary decree by directing the
defendants to pay the plaintiff a sum of Rs.12,10,000/- with
interest at the rate of 6% p.a. from the date of decree till the
date of realisation. If the defendants failed to make the
payment, the plaintiff could apply for passing final decree.
6. Questioning the same, this appeal has been filed.
7. Heard the learned counsel on either side.
8. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
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5 A.S.(MD)NO.86 OF 2019
grounds of appeal and submitted that the Court below ought
to have dismissed the suit. He would point out that the
plaintiff had admitted in his deposition that his father is
running a chit company in the very same premises. He wanted
this Court to draw adverse inference against the plaintiff for
non-examination of his father. The defendants by marking
Ex.B.1 to Ex.B.12 have convincingly shown that the amount
has been repaid to the chit company. The plaintiff ought to
have produced the accounts relating to the chit company and
established that the defendants had two independent
transactions. The plaintiff had not produced any document.
The learned counsel also submitted that the suit notice was
sent to a wrong address. The defendants were deprived the
opportunity of replying to the suit notice. According to him,
the plaintiff had taken advantage of his position as a money
lender. When the defendants approached the plaintiff for
financial assistance, they were left with no other option, but to
hand over the original documents. They had to sign on the
dotted lines. On the strength of such documents, the suit has
been instituted. He called for reversing the impugned
judgment and decree passed by the trial Court.
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6 A.S.(MD)NO.86 OF 2019
9. Per contra the learned counsel appearing for the
respondents submitted that the impugned judgment does not
call for any interference.
10. I carefully considered the rival contentions and
went through the evidence on record.
11. The points arising for my consideration are as
follows:-
(i) Whether the defendants/appellants
had two independent transactions; one with the
plaintiff and another with C.T.K. Chit Funds
Private Ltd., run by the father of P.W.1.
(ii) Whether the plaintiff made out a
case for passing preliminary mortgage decree?
12. The specific case of the plaintiff is that the
defendants had availed a sum of Rs.10,00,000/- on 10.01.2008
and executed Ex.A.7 to Ex.A.9. Ex.A.9 is a registered
memorandum of deposit of title deeds. Therefore, the
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presumption of execution attaches to Ex.A.9. The plaintiff had
also filed Ex.A.1 to Ex.A.6 which are the parent deeds in
respect of the suit properties and the revenue documents and
encumbrance certificates. I find it impossible to believe that at
the time of joining the chit group, such documents would have
been handed over or executed. It is true that while handing
over the prize money to the successful bidder, the foreman of
chit company would obtain some kind of security. It is usually
in the form of promissory note or signed cheque. In any event,
even according to the defendants, the chit prize money was
taken only in the fifth installment. In the written statement, it
is admitted that only in January 2008, the agents of the chit
company approached the first defendant and requested him to
join the chit group. Therefore, it is inconceivable that on
10.01.2008, the mortgage was created and signed blank
documents were obtained from the defendants. The
defendants' version does not tally with his chronology.
13. It is quite probable that the defendants were
called upon to repay the mortgage money to the account of the
chit company. But then, this defence will have to be
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8 A.S.(MD)NO.86 OF 2019
established only by the defendants. The onus lay entirely on
them. The plaintiff had come up with a definite case that on
10.01.2008, a sum of Rs.10,00,000/- was borrowed on the
strength of mortgage and that the liability was not cleared and
that therefore, the plaintiff had to file a mortgage suit against
the defendants. The plaintiff had clearly made out a case. The
onus shifted to the defendants once the plaintiff adduced his
evidence. If the defendants had a defence, it was for them to
make good the same. Nothing stopped the defendants from
summoning the father of P.W.1. They could have taken out an
application for causing production of the account books of the
chit company run by the father of P.W.1. The defendants had
not taken any such step. The defendants cannot lie back and
expect the plaintiff to clear all the doubts raised by the
defendants. It is for the defendants to prove their defence.
They failed. Therefore, the trial Court rightly rejected the
defence of the appellants and passed a preliminary decree as
sought for by the plaintiff. No case has been made out for
interference. The points for determination are answered in
favour of the plaintiff.
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9 A.S.(MD)NO.86 OF 2019
14. This appeal suit is dismissed. No costs.
30.06.2021
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.
To:
1. The Principal District Judge,
Kanyakumari District at Nagercoil.
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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10 A.S.(MD)NO.86 OF 2019
G.R.SWAMINATHAN,J.
PMU
A.S.(MD)No.86 of 2019
30.06.2021
https://www.mhc.tn.gov.in/judis/
