Madras High Court
S.Gayathri vs K.Periyannan on 13 June, 2023
A.S..No.317 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.06.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.No.317 of 2021
and
C.M.P.No.15597 of 2021
S.Gayathri .. Appellant
Vs.
1.K.Periyannan
2.K.Sivaraj .. Respondents
PRAYER : Appeal Suit is filed under Section 96 of the Code of Civil
Procedure, against the Judgement and Decree dated 19.02.2021 passed in
O.S.No.147 of 2016, on the file of the Session (Fast Track Mahila) Court,
Namakkal.
For Appellant : Mr.S.Senthil
For Respondents : Mr.Navaneethakrishnan
JUDGMENT
The appeal has been filed against the Judgment and Decree dated
19.02.2021 passed in O.S.No.147 of 2016, on the file of the Session (Fast
Track Mahila) Court, Namakkal.
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A.S..No.317 of 2021
2. The brief facts of the case are as follows:
The defendants borrowed a sum of Rs.6,35,000/- from Lakshmi
Vilas Bank, Muthukapatty branch on 17.02.2011 for interest at the rate of
18% interest per annum and had executed a memorandum of title deed with
regard to the plaint schedule property in the Bank as security for the loan
amount borrowed by the 1st defendant and submitted the original sale deed,
Revenue Records, house tax receipts, Encumbrance Certificate in the
Lakshmi Vilas Bank on 21.03.2011 and also executed a memorandum of title
deeds 21.04.2011. The defendants did not repay the principal amount or
interest of Rs.10,89,564/-. The total amount of Rs.10,89,564/- was paid by
the plaintiff on installment basis ie., Rs.25,000/- on 31.07.2012, Rs.25,000/-
on 23.04.2013, Rs.1,00,000/- on 19.12.2013, Rs.15,000/- on 18.11.2014,
Rs.8,00,000/- on 27.02.2015, Rs.1,20,564/- on 07.03.2012 through cheques
and Rs.4,000/- was paid in cash towards discharge of the loan amount,
thereby, the defendants are liable to repay the amount of Rs.10,89,564/- to the
plaintiff, for which, the plaintiff approached the defendants several times in
person, demanding the amount of Rs.10,89,564/-, but the defendants did not
repay the amount. So the plaintiff sent a legal notice on 23.05.2016 and the
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A.S..No.317 of 2021
1st defendant did not receive the notice and it was returned, the 2nd
defendant received the legal notice, but did not pay any amount. Hence, the
plaintiff filed the suit for recovery of amount of Rs.10,89,564/- with interest
at the rate of 12% per annum from the date of plaint and for costs of the suit.
3. On hearing both sides, the learned trial Judge decreed the suit
with costs and the plaintiff is entitled to recover the suit amount of
Rs.10,89,564/- with interest at the rate of 9 % per annum from the date of
plaint (16.08.2016) till today (19.02.2021) and thereafter with interest at the
rate of 6% per annum for the principal amount of Rs.6,35,000/- till the date of
realisation from the defendants. By challenging the said judgment, the 1st
defendant has preferred this Appeal Suit.
4. The learned counsel for the appellant submitted that the Court
below failed to consider that the Banks do not seek for collateral security or
third party guarantee for advancing education loan less than Rs.7.5 lakhs and
as such, the Bank must have been necessarily been added as a party to the
suit. He relyied upon the deposit of Title Deeds dated 21.04.2011, marked as
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A.S..No.317 of 2021
Ex,A1, in which, the appellant was not a party. The plaintiff has not averred
and not proved the necessity for him to have mortgaged his property for the
sake of the defendants, and specifically, no pleading has been averred
regarding the relationship between the defendants and the plaintiff. The
plaintiff has not proved that it is his own money that was deposited by him
and not otherwise. The defendant had taken a stand that she had sent the
amount from abroad to the plaintiff and the plaintiff has paid only the amount
sent by her in the Bank and it is for the 1st defendant to prove the same and
defendants have not proved it.
5. To prove their defence, on the side of the plaintiff, P.W.1 was
examined and Ex.A1 to Ex.A10 were marked and on the side of the
defendants no witnesses / documents were marked.
6. The learned counsel for the 1st respondent / plaintiff
submitted that plaintiff is aged about 107 years and he is in the fag end of his
life, due to his sick, he settled the Education loan amount which was
borrowed by the appellant and her husband. He stood as a guarantor and
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A.S..No.317 of 2021
discharged his liability, but the appellant was not inclined to settle the issue.
Hence, he prayed to settle the issue as a full time settlement.
7. The learned counsel for the appellant got instructions from her
and submitted before this Court that with regard to the remaining balance, she
had agreed to pay Rs.10 lakhs within a period of 6 weeks from the date of
receipt of a copy of this order.
8. As per the terms of compromise, they filed an affidavit before
the Court to settle the issue on both sides, by paying part of the Education
loan amount.
9. Before the executing Court, the appellant has already paid
Rs.3.25 lakhs and that is also taken by this Court, and apart from this amount,
the appellant is agreed to pay Rs.10 lakhs to the respondent/plaintiff in full
time settlement, within a period of 6 weeks from the date of receipt of a copy
of this order.
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A.S..No.317 of 2021
10. In view of the above settlement, this Appeal Suit is
disposed of. Consequently connected Miscellaneous petition is closed. No
Costs.
11. For reporting compromise, post the case on 25.07.2023.
07.06.2023
rri
Index : Yes/No
Speaking Order: Yes/No
Neutral Citation: Yes/No
To
1.The Sessions (Fast Track Mahila) Judge, Namakkal.
2.The Section Officer, VR section, High Court of Madras.
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A.S..No.317 of 2021
T.V.THAMILSELVI,J.
rri
A.S.No.317 of 2021
and
C.M.P.No.15597 of 2021
13.06.2023
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