Madras High Court
Samsudeen vs Rajendran on 16 November, 2021
S.A(MD)No.198 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.198 of 2020
Samsudeen ... Appellant/Appellant/Defendant
Vs.
Rajendran ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 01.04.2015 passed in
A.S.No.18 of 2013, on the file of the Principal District Court, Thanjavur,
confirming the judgment and decree, dated 22.11.2012 passed in
O.S.No.56 of 2007 on the file of the Additional Sub Court, Kumbakonam.
For Appellant : Mr.G.Mohan Kumar
For Respondent : Mr.V.Chandrasekar
1/10
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S.A(MD)No.198 of 2020
JUDGMENT
The concurrent Judgments and decrees, passed in O.S.No.56 of 2007
by the Additional Sub Court, Kumbakonam and in A.S.No.18 of 2013, on
the file of the Principal District Court, Thanjavur, are being challenged in
the present Second Appeal.
2.The respondent herein as plaintiff has instituted a suit in O.S.No.56
of 2007 on the file of the trial Court for recovery of money of a sum of
Rs.97,000/- along with interest, wherein, the appellant has been shown as
the defendant.
3.In the plaint it is averred that the defendant borrowed a sum of Rs.
97,000/- from the plaintiff on 30.09.2005 for his family expenses and
executed a mortgage deed in favour of the plaintiff on the same day and the
same was registered at Thiruvidaimaruthur Sub-Registrar Office on
03.10.2005 in Document No.1965 of 2005. As per the mortgage deed, the
defendant has agreed to repay the amount with interest at the rate of 24%
and also agreed to repay the principal amount within one year from the date
of mortgage deed. Since the defendant has not paid any amount either
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S.A(MD)No.198 of 2020
towards principal or interest to the plaintiff for the said mortgage deed, the
plaintiff has sent a legal notice on 14.02.2007 to the defendant. The
defendant received the same on 19.02.2007. But so far the defendant has not
make any payment, the plaintiff has filed the suit.
4.In the written statement filed on the side of the defendant, the
defendant denied the borrowal of a sum of Rs.97,000/- along with interest at
the rate of 12% per annum and execution of a mortgage deed. The
defendant's father in the year 2004 borrowed a sum of Rs.20,000/- from the
plaintiff and for that transaction, the defendant's passport was retained by
way of security. Since the defendant received visa for his job at Kuwait, he
is in need of his passport. While the defendant approached the plaintiff for
the return of the passport, the plaintiff insisted for the execution of a
mortgage deed, as claimed by him. To save his foreign job, the plaintiff
compelled the defendant to sign the mortgage deed, without getting any
amount from the plaintiff. The defendant is not liable to pay any amount and
prayed for dismissal of the suit.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and Exs.A1 to A3 were marked. On the side of
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S.A(MD)No.198 of 2020
the defendant, the father of the defendant was examined as D.W.1 and
Ex.D.1 to D.4 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 respondent / plaintiff and
directed the defendant to pay a sum of 1,33,407.52/- and 6% per annum
from the date of petition till the date of realization for the principal amount
of Rs.97,000/-.
7.Aggrieved by the Judgment and decree passed by the trial Court, the
defendant as appellant, had filed an Appeal Suit in A.S.No.18 of 2013. The
first appellate Court, after hearing both sides and upon reappraising the
evidence available on record, has dismissed the appeal and confirmed the
Judgment and decree passed by the trial Court.
8.Challenging the said concurrent judgments and decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the defendant as appellant.
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S.A(MD)No.198 of 2020
8.At the time of admitting the present second appeal, the following
substantial question of law has been framed for consideration:
"Whether the Courts below were right in holding
that Ex.A.1 mortgage deed is proved when none of the
attestors are examined as contemplated under Section 63 of
the Indian Evidence Act?"
9.The learned counsel appearing for the appellant/defendant
contended that both the Courts below have failed to see that the plaintiff has
not examined any one of the attestors of Ex.A.1-mortgage deed and the same
is not admissible in evidence. There is no independent evidence to establish
that a sum of Rs.97,000/- was paid by the plaintiff under Ex.A.1. There is a
misunderstanding between the plaintiff and the defendant to the extent of
filing a police complaint and hence, there is no possibility of execution of
Ex.A.1-mortgage deed and prayed for allowing the Second Appeal.
10.Heard the learned counsel for the appellant and the learned counsel
appearing for the respondent and perused the materials available on record.
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S.A(MD)No.198 of 2020
11.After considering the averments in the plaint as well the written
statement, the trial Court has come to the conclusion that the defendant has
not let in any evidence to prove that he has not executed the said document
on 30.09.2005. The defendant's father in his evidence had accepted and
admitted that the said document-Ex.P.1 is a mortgage deed, which was
registered before the Sub-Registrar's office and he was also aware of the
details in the mortgage deed. That being the case, when the said document
was executed by the defendant and it was accepted by the father of the
defendant, now the defendant cannot come and canvass that he has not
obtained a sum of Rs.97,000/- as loan and it is only a sum of Rs.20,000/-,
which is a contradictory evidence. Based on the evidence of the father of the
defendant, who is aware of the details of the document and the defendant
claimed that he only obtained a sum of Rs.20,000/- as loan and how he
admitted the amount of Rs.97,000/- and signed the document on 30.09.2005,
which was also registered is surprising and it is further seen that the
defendant has not taken any steps regarding the act of the plaintiff, who has
clandestinely determined the amount at Rs.97,000/- when he has not lend
the said money. The defendant has not produced any other evidence to prove
the same and had dismissed the suit.
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S.A(MD)No.198 of 2020
12.The first Appellate Court had also confirmed the said decision of
the trial Court and dismissed the Appeal Suit. The admissibility of the
signature by both P.W.1 and D.W.1 proves that the amount has been given as
a loan by the plaintiff. When the plaintiff has sent a legal notice and after
going through the averments, there is no denial of the same by way of a
reply notice by the defendant, which would also goes against the defendant
and hence, the first Appellate Court has dismissed the suit.
13.The trial Court as well as the first Appellate Court are the fact
finding authorities and when the Courts below have come to the conclusion
based on the facts of the case, the appellant has raised the substantial
questions of law as stated supra.
14.Regarding the question of law, Ex.A.1-mortgage deed is proved,
which has been admitted by the defendant that he had signed the document
and went abroad and in order to obtain the passport from the plaintiff, he has
executed the said document, which has also been registered before the
Sub-Registrar Office and the father of the defendant has also admitted that it
was signed by the defendant. The same need not be questioned here and it is
only a question of fact and it is not a substantial question of law. The
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S.A(MD)No.198 of 2020
defendant has not raised any such question regarding the legal notice by
sending a reply notice denying all the averments or raising a question about
the alleged sale agreement as stated in the legal notice. That being the case,
this Court is of the view that there is no substantial question of law involved
in this matter and this Court is of the opinion that the appellant/defendant
has not made out a prima facie case for granting the relief as sought for by
him.
15.For the reasons aforesaid, this Court is of the considered view that
no questions of law much less substantial questions of law, has been made
out by the appellant / defendant calling for interference by this Court in the
well-considered judgment and decree rendered by the Courts below and
accordingly, the Second Appeal stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
16.11.2021
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.198 of 2020
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 Court,
Thanjavur.
2.The Additional Sub Court,
Kumbakonam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.198 of 2020
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.198 of 2020
16.11.2021
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