M.Kannan vs C.Mani
2022 Latest Caselaw 3738 Mad

                                                                              SA.No.124/2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 28.02.2022

                                                      CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                        SA.No.124/2022 & CMP.No.2613/2022


                    M.Kannan                                                 .. Appellant /
                                                                                Defendant

                                                       Vs.

                    C.Mani                                                   .. Respondent /
                                                                                  Plaintiff


                    Prayer:- Second Appeal preferred under 100 of CPC against the judgment

                    and decree dated 16.12.2019 passed in AS.No.53/2017 by the learned

                    Additional District Judge, [FTC], Arani, Tiruvannamalai District,

                    confirming the judgment and decree passed by the learned Subordinate

                    Judge, at Cheyyar in OS.No166/2014 dated 04.11.2016.



                                      For Appellant          :   Mr.P.G.Thiyagu




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                                                                                           SA.No.124/2022




                                                          JUDGMENT

(1) The defendant in the suit in OS.No.166/2014 on the file of the Sub

Court, Cheyyar, is the appellant in the above Second Appeal.

(2) The respondent herein, as plaintiff, filed the suit in

OS.No.166/2014 for recovery of money due on a mortgage from the

defendant and for bringing the property for auction to recover the

money by passing a preliminary decree in case the defendant failes

to pay the mortgage amount with interest.

(3) The case of the plaintiff is as follows. The suit property belongs to

the defendant. The defendant executed a Mortgage Deed on

13.08.2002 by receiving a sum of Rs.1,25,000/- for his family

expenses and agreed to pay interest @ 24% per annum. The

Mortgage Deed is registered before the Sub Registrar of Sethupet,

as Doc.No.963/2002. Despite repeated requests by the plaintiff to

the defendant to discharge the mortgage debt, the defendant did not

pay any money either towards principal or interest to the plaintiff.

Though a pre-suit notice was issued to the defendant through the

plaintiff's Advocate on 23.07.2014, the defendant neither responded

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nor come forward to settle the debt. It is also contended by the

plaintiff' that the defendant had sufficient funds available with him

in cash and that the defendant's son is employed in abroad and that,

the defendant is therefore is not entitled to benefits of any debt

relief acts.

(4) The suit was contested by the defendant by filing a written

statement disputing the whole case of the plaintiff in the plaint.

Firstly, the Mortgage Deed is described as a fraudulent document.

According to the defendant, the document of Mortgage referred to

in the plaint, was fraudulently obtained from him without paying

any money. It is also stated that the said document was obtained

by coercion. From the averments in the written statement, it is seen

that a different version was given by the defendant. It is the case of

the defendant that the defendant introduced his relative one

Balaraman to the plaintiff who was searching to buy a house site.

Stating that the plaintiff was made to pay a sum of Rs.45,000/- to

one Duraisamy, a land owner in anticipation of selling the property

and that the transaction did not fructify due to other reasons, the

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plaintiff wanted the defendant to reimburse the money which he

had paid a sum of Rs.45,000/- with the hope of getting the Sale

Deed in respect of a property by a third party. Since the defendant

had introduced a stranger to the plaintiff, it is stated by the

defendant that the plaintiff coerced him to execute the Mortgage

Deed as a security for the amount which was paid by the plaintiff to

a third party. It is also stated that the defendant also repaid the

entire money which was payable to the plaintiff and the plaintiff,

however, laid the suit with a false claim. The defendant therefore,

prayed for dismissal of the suit.

(5) The Trial Court, after framing necessary issues, found that the

defendant has not proved his case that the Mortgage Deed was

obtained by the plaintiff by fraud or coercion. It is admitted that

the Mortgage Deed was executed on 13.08.2002. Since the

defendant did not take any steps to cancel the Mortgage Deed, the

case of the defendant that he was coerced and compelled by the

plaintiff to execute the mortgage, was disbelieved by the Trial

Court. Since the plaintiff has proved the execution of the Mortgage

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Deed by calling upon one of the attestors, the Trial Court held that

the plaintiff has proved the mortgage and therefore, decreed the suit

as prayed for. Aggrieved by the judgment and decree of the Trial

Court, the defendant preferred an Appeal in AS.No.53/2017 on the

file of the learned Additional District Judge, [FTC], Arani,

Tiruvannamalai. The Lower Appellate Court also concurred with

the findings of the Trial Court and dismissed the appeal. Aggrieved

by the concurrent judgments and decrees of the Court below, the

above Second Appeal is preferred by the defendant.

(6) The learned counsel for the appellant raised the following

substantial questions of law in the Second Appeal:-

(a) Whether the Court below ought to have properly appreciated and applied the principles to find out the plaintiff is entitled for recovery of money, in the view of the facts and circumstance of the present case?

(b) Whether the Lower Appellate Court has not erred in considering the sequence of the facts corroborating evidence let by the appellant

SA.No.124/2022

side witness?'' (7) The learned counsel for the appellant submitted that the Courts

below have not considered the proximities and probabilities of the

case in the light of pleading and the Courts below have misdirected

themselves both on facts and law without an application of mind.

The learned counsel submitted that the plaintiff has not come

forward with the suit for more than 12 years and that the suit is

liable to be dismissed on the ground that the transaction alleged by

the plaintiff is improbable, as the plaintiff would have come and

filed the suit earlier in case the transaction as such is true and the

plaintiff's claim is a bona fide one. The learned counsel further

submitted that the defendant though admitted the execution of the

Mortgage Deed, has specifically denied the nature of transaction

and the intention behind the transaction which was reduced into

writing as a Mortgage Deed. Since the appellant/defendant was

forced, coerced and intimidated by the plaintiff, the signature of the

appellant/defendant was forcibly obtained in the document. When

the appellant has specifically pleaded about the coercion and

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intimidation by the plaintiff, the Courts below have failed to render

a definite finding based on the evidence adduced by the appellant /

defendant in the suit. The grievance of the learned counsel is also

that the evidence of the witnesses examined by the defendant's side

was not considered by the Courts below.

(8) This Court is unable to appreciate any of the submissions of the

learned counsel for the appellant.

(9) Firstly, the Mortgage Deed is a registered one and it is not a

document which can be completed by mere signature of the

defendant. The Mortgage Deed had been registered and the

presumption under Section 114 of the Indian Evidence Act, will be

against the defendant's version which is not sufficient to rebut such

presumption. The limitation for filing a suit to recover the amount

due under a mortgage is 12 years. It is common to note that a

plaintiff in a mortgage suit normally will wait until eleventh hour

and it is no wonder the suit is laid nearly 11 years after the suit

mortgage. The mortgage suit cannot be dismissed on the ground of

delay or laches if it is not barred by limitation. Since the loan is

SA.No.124/2022

secured by mortgage, there is no abnormality in filing the suit

taking advantage of period of limitation.

(10) When the defendant has raised the plea that he was forced,

compelled or coerced to execute a registered Mortgage Deed, the

normal attitude of the appellant/defendant would be to approach the

Court to set aside the transaction on the ground that it is vitiated by

fraud or coercion. Under Section 19 of the Indian Contract Act, if

consent to an agreement is caused by coercion, fraud or

misrepresentation, the agreement is voidable and not void.

Therefore, when the defendant comes forward with a plea that the

Mortgage Deed was obtained by fraud or coercion or

misrepresentation, it is for him to approach the Court to seek

appropriate relief. The necessary corollary is that the defendant

who has failed to come forward with the prayer to set aside the

Mortage Deed on the ground of coercion cannot defend the suit

ignoring the legal consequences that would follow when a suit for

mortgage is filed.

(11) The learned counsel for the appellant though relied on some of the

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portions of evidence where the previous transaction between one

Duraisamy and the plaintiff was referred to, the suit mortgage

appears to be independent and the defendant miserably failed to

prove any connection between the transaction which the defendant

had referred to in the written statement and the suit mortgage which

was executed when defendant borrowed the loan from the plaintiff

as recited in the Mortgage Deed. Though the defendant has

pleaded a panchayat and other events, absolutely there is no proof

except the ipsi dixit of the defendant and one witness which was

considered and rejected by the Courts below. The question whether

the Mortgage Deed was executed by coercion is a pure question of

fact and both the Courts below have concurrently held that the

defendant had signed the Mortgage Deed knowing fully well the

consequences thereof. Since the document is a registered one and

the signature of the defendant is admitted, this Court is unable to

come to a different conclusion than the one reached by the Courts

below.

SA.No.124/2022

(12) In addition to the special feature that there is no sufficient evidence

to prove the case of the defendant, the defendant had not taken any

step to challenge the Mortgage Deed by filing an independent suit.

It is not the case of the defendant that the coercion or compulsion

continued even after the execution of Mortgage Deed till the suit

was filed for recovery of money due on mortgage. Therefore, the

defendant cannot sustain his plea without filing suit either to

declare the transaction as void one or to set aside the Mortgage

Deed on the ground that his consent was obtained by

misrepresentation or coercion.

(13) In view of the facts admitted and the factual findings of the Courts

below on all the issues, this Court is unable to find any merit in any

of the substantial questions of law raised by the appellant.

(14) In fine, this Second Appeal is dismissed with cost confirming the

judgment and decree dated 16.12.2019 passed in AS.No.53/2017

by the learned Additional District Judge, [FTC], Arani,

Tiruvannamalai District, confirming the judgment and decree dated

04.11.2016 in OS.No166/2014 passed by the learned Subordinate

SA.No.124/2022

Judge, at Cheyyar.

28.02.2022 AP Internet : Yes

To

1.The Additional District Judge, [FTC], Arani, Tiruvannamalai District.

2.The Subordinate Judge, Cheyyar.

3.The Section Officer VR Section, High Court Chennai.

SA.No.124/2022

S.S.SUNDAR, J.,

AP

SA.No.124/2022

28.02.2022

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