Madras High Court

Mr.Sanjay Bhansali vs Mr.P.Haridoss on 29 April, 2022

                                                                                             C.S.No.134 of 2015

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 29.04.2022

                                                                CORAM

                                    THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                         C.S.No.134 of 2015

                     1. Mr.Sanjay Bhansali

                     2. Mrs.Vimala Bhansali                                                 ... Plaintiffs


                                                                  Vs.


                     1. Mr.P.Haridoss

                     2. Mr.R.Saravana Kumar

                     3. Mr.S.Ramesh                                                         ... Defendants




                                  Plaint filed under Order 34 Rule 1 and Order VII Rule 1 CPC read with

                     Order IV Rule 1 of O.S. Rules, praying for a judgment and decree as follows :



                                  a) Directing the defendants to pay to the plaintiffs the sum of
                     Rs.36,50,000/- together with future interest at the rate of 24% per annum on
                     Rs.25,00,000/- from the date of presentation of plaint to till the date of
                     realization in respect of the aforesaid suit Equitable Mortgage Loan dated
                     21.01.2011.


                                  b) Directing the defendants to pay to the plaintiffs the cost of the suit.


                                  c) On the defendants failure to pay the above decree amount with

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                                                                                             C.S.No.134 of 2015

                     costs of the suit, directing the A Schedule mentioned property being
                     mortgaged be brought to sale for realization of the amount found to be due by
                     the defendants as on such date of sale and appropriate the sale proceeds
                     towards the due and in case of proceeds of sale are found to be insufficient to
                     pay the amount due to the plaintiffs, to proceed against the defendants
                     personally to recover the balance due.


                                                      For Plaintiffs : Mr.N.Nagusha

                                                      For D2 & D3 : No Appearance

                                                                       D1 - Set Exparte on 12.03.2021



                                                              JUDGMENT

This suit has been filed by the plaintiffs seeking the following reliefs :

a) Directing the defendants to pay to the plaintiffs the sum of

Rs.36,50,000/- together with future interest at the rate of 24% per annum on

Rs.25,00,000/- from the date of presentation of plaint to till the date of

realization in respect of the aforesaid suit Equitable Mortgage Loan dated

21.01.2011.

b) Directing the defendants to pay to the plaintiffs the cost of the suit.

c) On the defendants failure to pay the above decree amount with

costs of the suit, directing the A Schedule mentioned property being

mortgaged be brought to sale for realization of the amount found to be due by

the defendants as on such date of sale and appropriate the sale proceeds

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C.S.No.134 of 2015

towards the due and in case of proceeds of sale are found to be insufficient to

pay the amount due to the plaintiffs, to proceed against the defendants

personally to recover the balance due.

2. The brief facts of the case as averred in the plaint are as follows :

i) The 1st defendant through his loan application dated 18.01.2011 had

requested the 1st plaintiff to advance the loan amount of Rs.30,00,000/- by

undertaking to secure his immovable property viz., the Punja land comprised

in S.No.40/1 measuring 5 1/2 cents situated at Kazhipattur Village, Muttukadu

Panchayat, Tiruporur Taluk, Kanchipuram District, more particularly described

in the A Schedule for the said loan. The 2nd and 3rd defendants had also

joined along with the 1st defendant in the above loan application dated

18.01.2011 assuring the repayment of the above loan amount to the 1st

plaintiff. Based on the defendants above request, the plaintiffs had advanced

the loan amount of Rs.25,00,000/- i.e. Rs.20,00,000/- by way of two cheque

Nos.900479 and 900480 each for Rs.10,00,000/- and Rs.5,00,000/- by way of

cash to the 1st defendant on 20.01.2011 at the plaintiffs office bearing Door

No.38, Audiappa Naicken Street, Chennai - 79, and in consideration thereof,

all the defendants had executed the Promissory Note dated 20.01.2011 for

Rs.25,00,000/- in favour of the plaintiffs at their above office at Chennai - 79,

jointly and severally promising to repay the said sum together with interest at

24% p.a. on demand.

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C.S.No.134 of 2015

ii) Subsequent to the execution of Promissory Note, as per the request

made by the plaintiffs to furnish security for the due repayment of the above

loan amount, the 1st defendant had deposited the original title deeds

pertaining to his A schedule property viz., the documents more particularly

described in the B schedule, with the plaintiffs on 21.01.2011 at the plaintiffs'

office with an intention to create an Equitable mortgage over his above

property in favour of the plaintiffs as security for the due repayment of the

said loan amount. Thereafter, the 1st defendant had executed a Confirmation

Letter dated 24.01.2011 at Chennai in this regard evidencing the creation of

the Equitable Mortgage by deposit of title deeds by the 1st defendant over the

A schedule property in favour of the plaintiffs in respect of the borrowing

dated 20.01.2011.

iii) Subsequent to the execution of above confirmation letter, the 1 st

defendant had borrowed a further loan amount of Rs.5,00,000/- from the 1st

plaintiff by mortgaging the A schedule property by executing and registering a

Simple Mortgage Deed dated 25.01.2011 registered as Doc.No.559 of 2011

at the Sub-Registrar Office, Thirupporur, by creating further mortgage over

the suit A schedule property in favour of the 1 st plaintiff by promising to repay

the said mortgage loan dated 25.01.2011 together with interest at 24% p.a.

However, the plaintiffs filed this suit only in respect of the dues payable under

the suit Equitable Mortgage dated 21.01.2011 and the 1 st plaintiff reserves his

right to institute separate proceedings in respect of the dues payable by the

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C.S.No.134 of 2015

1st defendant under the registered Simple Mortgage Deed dated 25.01.2011.

iv) The 1st defendant through his letter dated 01.08.2011 had

acknowledged his liability in respect of the above suit Equitable Mortgage

Deed dated 21.01.2011 by undertaking to discharge the above debt. In

respect of the above borrowing dated 20.01.2011, all the defendants are

jointly and severally liable to pay the sum of Rs.36,50,000/- i.e.

Rs.25,00,000/- towards principal and Rs.11,50,000/- towards interest, as all

the defendants did not pay any amount either towards principal or towards

interest in respect of the suit mortgage loan till this date. In this regard, the

plaintiffs had issued a notice dated 14.12.2012 to the defendants calling upon

them to settle the above due amount. Though the 1st defendant had received

the said notice, he had failed to comply with the plaintiffs' above demand nor

send any reply to him. The 2nd and 3rd defendants had evaded to receive the

said notice. Hence, the plaintiffs were constrained to file the above suit.

3. Heard the learned counsel for the plaintiffs and learned counsel for

D1, and perused the materials available on record.

4. Though the first defendant was granted time for filing written

statement on 26.02.2021, he has not filed written statement till 12.03.2021.

Hence, he was called absent and set exparte on 12.03.2021 and the matter

was referred to Additional Master - III for recording exparte evidence. Before

the Master, on the side of the plaintiffs, one Mr.R.Jagadeesan was examined

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C.S.No.134 of 2015

as PW1, and during his chief examination, he has filed proof affidavit on

behalf of the plaintiffs and marked the following documents in support of the

plaintiffs' case :-

S.Nos. Exhibits Description
1. P-1 Original Authorization Letter dated 16.11.2021
given by the plaintiffs.
2. P-2 Original Loan Application dated 18.01.2011 given
by the 1st defendant.
3. P-3 Original Promissory Note dated 20.01.2011
executed by all the 3 defendants.
4. P-4 Original Confirmation Letter dated 24.01.2011
executed by the 1st defendant.
5. P-5 Certified Copy of the Mortgage Deed dated
24.01.2011 executed by the 1st defendant.
6. P-6 Original Acknowledgement of Liability dated
06.10.2011 executed by the 1st defendant.
7. P-7 Original Acknowledgement of Liability dated
03.03.2012 executed by the 1st defendant.
8. P-8 Legal Notice dated 14.12.2012 issued by the
plaintiffs to all the defendants.
9. P-9 Postal Acknowledgement Card dated 18.12.2012.
10. P-10 Returned Cover sent to the 2nd defendant.
11. P-11 Returned Cover sent to the 3rd defendant.
12. P-12 Photocopy of the Sale deed dated 25.07.1994
executed in favour of Haridoss by one
Venkatasalam
13. P-13 Encumbrance Certificate dated 31.12.2010.

On the side of the defendants, neither any document was placed nor

any witness was examined.

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C.S.No.134 of 2015

5. On considering the oral and documentary evidence adduced on the

side of the plaintiffs and in the absence of any written statement or oral and

documentary evidence on the side of the defendants, this Court is of the view

that the plaintiffs have proved their suit claim and hence, the plaintiffs are

entitled to Rs.36,50,000/- together with interest at the rate of 24% per annum

on Rs.25,00,000/- from the date of presentation of plaint till the date of

realization of the amount.

6. Accordingly, the suit is decreed as prayed for. The said sum of