Madras High Court
Manimuthu Samuel vs Maria Anthony on 15 November, 2021
S.A(MD)No.22 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.22 of 2019
and
C.M.P(MD)No.1328 of 2019
1.Manimuthu Samuel
2.Neelvin Dennison
3.Christian Judson
4.Fredrick Davidson ... Appellants/Appellants/Defendants
Vs.
Maria Anthony ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 06.02.2018 passed in
A.S.No.20 of 2017, on the file of the I Additional District Court, Tirunelveli,
modifying the judgment and decree dated 16.11.2015 passed in O.S.No.189
of 2012 on the file of the Subordinate Court, Valliyoor.
For Appellants : Mr.P.Santhosh Kumar
1/13
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S.A(MD)No.22 of 2019
JUDGMENT
This second appeal has been directed against the Judgment and
decree, dated 06.02.2018 passed in A.S.No.20 of 2017, by the I Additional
District Court, Tirunelveli, the judgment and decree, dated 16.11.2015
passed in O.S.No.189 of 2012 by the Subordinate Court, Valliyoor, are
modified.
2.The respondent herein as plaintiff has instituted a suit in O.S.No.189
of 2012 on the file of the trial Court for recovery of money, wherein the
appellants have been shown as defendants.
3.In the plaint it is averred that the plaint schedule property belonged
to the defendants. The defendants 2 to 4 are the sons of the first defendant.
The first defendant is a retired Teacher. The defendants borrowed a sum of
Rs.3,00,000/- from the plaintiff on 27.05.2008 to meet out their family
expenditure and other expenditures and executed a registered mortgage deed
in respect of the plaint schedule property on the same day and agreed to pay
interest at the rate of 12% per annum ie., a sum of Rs.3,000/- per month.
Therefore, as on 27.10.2012, the defendants are liable to pay a sum of
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S.A(MD)No.22 of 2019
Rs.4,59,000/- inclusive of principal and interest. Though the plaintiff is
entitled for interest at the rate of 18% in default, he has claimed interest at
the rate of 12% per annum. The defendants did not pay the interest from the
date of mortgage nor the principal as agreed and was evasive when the
plaintiff demanded money. In the meantime, the first defendant sent a
Demand Draft for a sum of Rs.3,000/- and the plaintiff encashed the same.
The interest of Rs.3,000/- has been deducted from the abovesaid amount and
the defendants are liable to pay a sum of Rs.4,56,000/-. As the defendants
have not repaid the amount, the suit has been filed for the recovery of money
on the mortgage.
4.In the written statement filed on the side of the defendants, the
defendant had refuted the averments made in the plaint that the defendants
received a sum of Rs.3,00,000/- from the plaintiff for the family expenses
and to execute a mortgage deed. The defendants further stated that they
received a sum of Rs.1,50,000/- only from the plaintiff. Since the defendants
demanded the execution of mortgage deed for Rs.3,00,000/- for lending Rs.
1,50,000/-, the defendants had to execute the deed for Rs.3,00,000/-. The
first defendant has regularly paid the monthly interest of Rs.3,000/- per
month to the plaintiff in person till April, 2011 and the first defendant sent
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S.A(MD)No.22 of 2019
the interest of Rs.3,000/- for the month of May, 2011 through Demand Draft
along with a letter dated 26.05.2011 and the plaintiff received the letter on
01.06.2011. Hence, the suit has to be dismissed.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1, one Ganesan was examined as P.W.2 and one
Thillaipazham was examined as P.W.3 and Exs.A1 and A2 were marked. On
the side of the defendants, one Manimuthusamuel was examined as D.W.1
and one Sivaperumal was examined as D.W.2 and Exs.D.1 and D.2 were
marked and on the side of the witness, Ex.X.1 and X.2 were marked.
6. On the basis of the rival pleadings on either side, the trial Court has
framed necessary issues and after evaluating both the oral and documentary
evidence, has decreed the suit in favour of the appellant / plaintiff. The trial
Court directed the defendants to pay a sum of Rs.4,56,000/- to the plaintiff
with interest at the rate of 12% per annum from the date of plaint till the date
of decree and 6% per annum from the date of decree till the date of
realization for the principal amount of Rs.3,00,000/- and in default the
schedule property be proceeded with to recover the loan amount and granted
time for payment for three months.
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S.A(MD)No.22 of 2019
7.Aggrieved by the Judgment and decree passed by the trial Court, the
defendants as appellants, had filed an Appeal Suit in A.S.No.20 of 2017. The
first appellate Court, after hearing both sides and upon reappraising the
evidence available on record, has allowed the appeal in part insofar as the
payment of Rs.3,00,000/- with interest to the plaintiff and the plaintiff is
entitled to only Rs.3,00,000/- being principal amount and he is not entitled
for any interest as per Ex.A.1 and the plaintiff is entitled for interest at the
rate of 6% per annum from the date of judgment of the trial Court till the
date of payment.
8.The learned counsel appearing for the appellants/defendants
contended that the first Appellate Court ought to have fully set aside the
judgment and decree of the trial Court instead of modifying the same as if
the appellants have to repay a sum of Rs.3,00,000/- is unsustainable and the
same is liable to be set aside. The Courts below have failed to note that the
defendants paid a sum of Rs.3,000/- towards interest for the amount of
Rs.1,50,000/- at the rate of 12% interest as demanded by the plaintiff would
clearly show that the actual amount borrowed and the same is also admitted
by the plaintiff and prayed for allowing the Second Appeal.
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S.A(MD)No.22 of 2019
10.Though the name of the respondent has been printed in the cause-
list, none appeared on behalf of the respondent either in person or through
counsel.
11.Heard the learned counsel for the appellant and perused the
materials available on record.
12.It is the admitted case of the respondent/plaintiff that the plaint
schedule property belonged to the defendants and the defendants borrowed a
sum of Rs.3,00,000/- from the plaintiff on 27.05.2008 to meet out their
family expenditures and other expenditures and executed a registered
mortgage deed in respect of the plaint schedule property on the same day
and agreed to pay interest at the rate of Rs.3,000/- per month. It is the
admitted case of the appellants / defendants that they received only a sum of
Rs.1,50,000/- and paid the monthly interest of Rs.3,000/- per month. It is the
further case of the appellants/defendants that an exorbitant interest has been
levied by the plaintiff when they paid a sum of Rs.3,000/- for one month, it
should be taken into account and the mortgage deed executed is only
for Rs.1,50,000/- and not for Rs.3,00,000/- and the same has not been
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S.A(MD)No.22 of 2019
established by let in any appropriate evidence. The contract entered into
between the parties under the mortgage deed is for a sum of Rs.3,00,000/-
and the defendants have not chosen to file any other material or filed any
application for repaying the same. When the respondent/plaintiff, who is a
licenced money lender, who has also deposed before the Court that he will
produce the necessary documents regarding maintenance of accounts, but
the same has not been asked for by the defendants to produce the same by
taking out any application. It is also further seen that when the defendants
received a sum of Rs.1,50,000/-, other than the oral evidence, the defendants
are not in a position to prove the same. It is further stated that the burden of
proof lies on the party, who denies the said claim and there cannot be any
adverse inference can be inferred against the plaintiff when he has proved
the same. It is also further stated that when the first appellant/first defendant
who has executed the said document is a retired Headmaster of a School and
it was proved that he has loan transactions of obtaining money from various
parties and also against him cases under Section 138 of the Negotiable
Instruments Act are also pending. After reading the mortgage deed only, the
first defendant signed the same and he and his three sons have executed the
same which was also admitted by him in the said evidence in cross-
examination. It is further seen that the claim made by the
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S.A(MD)No.22 of 2019
appellants/defendants that they received only a sum of Rs.1,50,000/- has not
been proved. It is mere statement and not supported by any documents that
they received only Rs.1,50,000/-. If such stand has to be allowed, then the
defendants ought to have proved the same by letting any appropriate
evidence, as he has borrowed only a sum of Rs.1,50,000/-. The said
contention has not been accepted by the plaintiff and the plaintiff had
produced the appropriate mortgage deed, which is a registered one to show
that the plaintiff has paid a sum of Rs.3,00,000/- and the appellants have not
let in any contra evidence in this regard, except giving an evidence as a self-
interested testimony as D.W.1 and he has not denied the transaction in
entirety. When the person has accepted his transaction with the other person,
he cannot be allowed to accept part and deny the remaining, especially,
when he is a party to the said document. Chapter 6 of the Indian Evidence
Act, 1872, bars such oral evidence against the documentary evidence under
Sections 91 and 93. The defendants have not disputed the execution of
Ex.A.1 and the purpose for which it has been executed which clearly states
that they borrowed a sum of Rs.3,00,000/- and now they cannot come and
state that they have borrowed only a sum of Rs.1,50,000/-.
13.It is also further seen that they have been paying one rupee per Rs.
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S.A(MD)No.22 of 2019
100/- and only a mortgage deed was executed by the defendants, who has
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S.A(MD)No.22 of 2019
accepted the signature of the said document, cannot now take a stand that
they received only a sum of Rs.1,50,000/- which is also a factual aspect and
as such, there is no question of law involved in the present Second Appeal.
14.The first Appellate Court has rightly gone into the issue of interest
rate prescribed under Ex.A.1, which is beyond the provisions of the Tamil
Nadu Prohibition of Charging Exorbitant Interest Act, 2003, wherein the
said claim of percentage is to the principal and rate of interest at the rate of
12%, in default, 18% cannot be accepted as normal and the first Appellate
Court below has rightly come to the conclusion that the plaintiff is entitled
for interest only at 6% per annum, for which, this Court is also agreeable
and confirm the same. As the plaintiff is not entitled for interest portion as
per the plaint and after adhering to the appropriate legal provisions only 6%
of interest has been allowed and the same is also hereby confirmed.
15.The other issues regarding the denial of the defendants which has
not been appropriately elucidated before this Court and this Court is not
inclined to accept the other versions of the defendants that they have not
executed the mortgage deed for a sum of Rs.3,00,000/- and it is only for a
sum of Rs.1,50,000/- and as they have admitted the execution of the
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S.A(MD)No.22 of 2019
disputed mortgage deed, this Court is of the view that when there is no
contrary evidence has been produced, when the appellants/defendants have
admitted the execution of the said deed cannot be just contrary to the same
admission made by him during the course of the trial and this Court finds no
question of law has arisen in this regard for consideration and only on the
factual aspects, the appellants herein has filed the present Second Appeal,
which is liable to be dismissed. No costs.
16.In fine, this second appeal is dismissed, without costs and the
judgment and decree, dated 06.02.2018 passed in A.S.No.20 of 2017, on the
file of the I Additional District Court, Tirunelveli is confirmed.
consequently, connected Miscellaneous Petition is closed.
15.11.2021
Index : Yes/No
Internet : Yes/No
ps
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,
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S.A(MD)No.22 of 2019
shall be the responsibility of the
advocate / litigant concerned.
To
1.The I Additional District Court,
Tirunelveli.
2.The Subordinate Court,
Valliyoor.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.22 of 2019
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.22 of 2019
15.11.2021
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