Judgment : M. Venugopal, J. 1. Being aggrieved, the Appellant/Second Defendant has filed this Appeal as against the Judgment and decree dated 29.11.2005 in O.S. No.703 of 2004 on the file of the learned Additional District and Sessions Judge (Fast Track Court No.II), Coimbatore. 2. The First Respondent/Plaintiff has filed the Suit seeking the relief of directing the Second Respondent/First Defendant and the Appellant/Second Defendant to pay him jointly and severally a sum of Rs. 12,00,000/- along with interest at 24% per annum and in default of such payment to pass a Decree for the sale of the Mortgage property, etc. 3. On an appreciation of the oral and documentary evidence, the Trial Court has passed a Judgment directing the Appellant/Second Defendant and the Second Respondent/First Defendant to pay severally and jointly a sum of Rs.12 lakhs to the First Respondent/Plaintiff together with interest at 24% per annum from the date of filing of the Suit till the date of realisation, within a period of six months from the date of passing of the Decree i.e., on 29.11.2005 and further in case of default, directed the Mortgage property to be brought for sale in order to realize the Suit sum. 4. The Trial Court has framed the following issues for trial: (i) Whether the First Respondent/Plaintiff is entitled to the relief of Suit claim? (ii) Whether the First Respondent/Plaintiff is entitled to a Preliminary Decree? (iii) Whether the Suit is barred by Limitation? (iv) Whether the rate of interest claimed at 24% p.a. is an Excessive one? (v) Whether the Suit is affected by impleading unnecessary parties? (vi) To what relief, the First Respondent/Plaintiff is entitled to? 5. In regard to Issue Nos. 1 and 2, the Trial Court has observed that Ex.A1 Loan Agreement dated 05.06.1997 and Ex.A4-Appellant/Second Defendant’s Affidavit dated 09.06.1997 came into existence and on that day itself, a sum of Rs. 12,00,000/- through cheque of Vijaya Bank, Bangalore was given as seen from Exs.A1 and A2 and as spoken to by P.W.2 in his evidence and further loan availed by the Second Respondent/First Defendant, the Appellant/Second Defendant had mortgaged a property as confirmed by Exs.A3 and A4 dated 05.06.1997 and 09.06.1997 viz., the Appellant/Second Defendant’s Surety Agreement and the Affidavit, etc. 6. 6. Insofar as the Issue No.3 is concerned, the Trial Court held that the Suit was not barred by limitation because of the relief sought for against the mortgaged property of the Appellant/Second Defendant. 7. For the Issue No.4, the Trial Court opined that the rate of interest at 24% p.a. claimed in the Suit claim could not be considered as a higher one and directed the Second Respondent/First Defendant and the Appellant/Second Defendant to pay the same. 8. As far as the Issue No.5 is concerned, the Trial Court came to the conclusion that the Second Respondent/First Defendant and the Appellant/Second Defendant are necessary parties. 9. In respect of the Issue No.6, the Trial Court held that the Second Respondent/First Defendant and the Appellant/Second Defendant were liable to pay the suit amount of Rs.12,00,000/- jointly and severally and to pay interest at 24% p.a. from the date of filing of the Petition till date of realization and to pay the same within a period of six months and in default to proceed against the mortgaged property by bringing it to auction sale. 10. Before the Trial Court, o the side of the First Respondent/Plaintiff witnesses P.Ws.1 and 2 were examined and Exs.A1 to A13 were marked. On the side of the Appellant/Second Defendant and the Second Respondent/First Defendant, witnesses D.Ws.1 and 2 were examined and no Exhibits were marked. 11. The points that arise for consideration in this Appeal are: (i) Whether the Appellant/Second Defendant has entered into Ex.A1 Loan Agreement dated 05.06.1997 as Surety/Guarantor with the First Respondent/Plaintiff, agreeing to guarantee the repayment of Rs.12 lakhs borrowed by the Second Respondent/First Defendant? (ii) Whether the Appellant/Second Defendant has deposited the Title Deeds in respect of the plaint schedule property as per Ex.A3-Surety Agreement dated 05.06.1997 with the First Respondent/Plaintiff with a view of create an Equitable Mortgage? (iii) Whether the Appellant/Second Defendant has executed Ex.A4 Affidavit dated 09.06.1997 confirming the Deposit of Title Deeds? Contentions, Discussions and Findings on Points 1 to 3: 12. (iii) Whether the Appellant/Second Defendant has executed Ex.A4 Affidavit dated 09.06.1997 confirming the Deposit of Title Deeds? Contentions, Discussions and Findings on Points 1 to 3: 12. The learned Senior Counsel appearing for the Appellant/Second Defendant urges before this Court that the Trial Court’s Judgment and Decree passed in the Suit are against law and probabilities of the case and that it has not taken note of the fact that the Suit itself was filed by the First Respondent/Plaintiff for the recovery of the alleged principal sum of Rs.12 lakhs is not maintainable because of the fact that the First Respondent/Plaintiff as P.W.1 in his cross-examination has admitted that he has two accounts in respect of the amounts due to him, which has not been filed before Court and as such the sum of Rs.12 lakhs does not represent the amount due to him. 13. It is the further plea of the Appellant/Second Defendant that she has not created mortgage by deposit of Title Deeds in respect of her flat at Coimbatore and that Ex.A1, Loan Agreement dated 05.06.1997, Ex.A3 the Appellant/Second Defendant’s Guarantee Deed dated 05.06.1997, Ex.A4 dated 09.06.1997 Affidavit of the Appellant/Second Defendant (in respect of handing over of the document relating to the Mortgage property) were signed in blank at Coimbatore and not at Bangalore. 14. Continuing further, it is the contention of the learned Senior Counsel appearing for the Appellant/Second Defendant that the First Respondent/Plaintiff has not proved Ex.A4-Affidavit dated 09.06.1997 executed by the Appellant/Second Defendant in regard to the creation and existence of Mortgage by Deposit of Title Deeds has been executed at Bangalore and the non-examination of the notary public to prove Ex.A4 affidavit is a fatal one. 15. Besides the above, on the side of the Appellant/Second Defendant, it is submitted that Ex.A1-Agreement dated 05.06.1997 and Ex.A3-Gurntee Deed of the Appellant/Second Defendant dated 05.06.1997 do not prove the creation or existence of Mortgage by means of Deposit of Title Deeds in respect of the flat owned by the Appellant/Second Defendant at Coimbatore. 16. Moreover, it is the contention of the learned Senior Counsel for the Appellant that Ex.A5-Sale Deed pertaining to Mortgage property conveys the undivided share of land only and the same does not any way prove the title of the Appellant/second Respondent to the flat at Coimbatore owned by her. 17. 16. Moreover, it is the contention of the learned Senior Counsel for the Appellant that Ex.A5-Sale Deed pertaining to Mortgage property conveys the undivided share of land only and the same does not any way prove the title of the Appellant/second Respondent to the flat at Coimbatore owned by her. 17. Per contra, the learned counsel for the First Respondent/Plaintiff submits that the Second Respondent/First Defendant requested the First Respondent/Plaintiff for a loan of Rs.12 Lakhs and the said sum of Rs.12,00,000/- was paid by the First Respondent/Plaintiff through Cheque No.658328 dated 06.06.1997 drawn on Vijaya Bank, Akkipet, Bangalore and that the Appellant/Second Defendant stood as Surety/Guarantor for the loan taken by the First Defendant/Second Respondent and as a matter of fact, the Appellant/Second Defendant on 05.06.1997 entered into an Agreement as Surety/Guarantor between the First Respondent/Plaintiff agreeing to repay the guarantee of Rs.12,00,000/- borrowed by the Second Respondent/First Defendant and in fact, the Appellant/Second Defendant has deposited the Title Deeds in respect of the plaint schedule property with an intention to create an Equitable Mortgage by Deposit of Title Deeds and create the said Equitable Mortgage. 18. Further, the Appellant/Second Defendant has also executed an Affidavit confirming the Deposit of Title Deeds of the property on 09.06.1997 and as such, the liability of the Appellant/Second Defendant is coextensive with that of the First Respondent/Plaintiff and therefore, the First Defendant/Second Respondent and the Appellant/Second Defendant jointly and severally liable to repay the principle sum of Rs.12,00,000/- and the interest thereto. 19. However, the Second Respondent/First Defendant in his Written Statement has taken the stand that since there was cordial and affectionate relationship between himself and the First Respondent/Plaintiff (none other than his own uncle), the First Respondent/Plaintiff has agreed to lend a sum of Rs.12 Lakhs to him without and that the First Respondent/Plaintiff has assured him that loan could be repaid at his convenience, etc. 20. Apart from the above, it is the contention of the Second Respondent/First Defendant that he subscribed his signatures in various blank papers as sought by the First Respondent/Plaintiff and indeed the First Respondent/Plaintiff paid an amount of Rs.12,00,000/- only on 06.06.1997 and that Loan Agreement was executed on 06.06.1997 but it was notarized on 07.06.1997 as per the endorsement of the notary which read as ‘Sworn to before me’. Thus, there were inconsistency in regard to the dates mentioned supra. 21. Thus, there were inconsistency in regard to the dates mentioned supra. 21. The Second Respondent/First Defendant also takes a plea that the nature and description of documents which were handed over to the First Respondent/Plaintiff by the Appellant/Second Defendant with an intention to create Equitable Mortgage were not specified in Exs.A2-Affidavit dated 06.06.1997 of the Second Respondent/First Defendant. A perusal of the Written Statement of the Second Respondent/First Defendant indicates that a specific legal plea is raised to the effect that as per Section 58(f) of the Transfer of Property Act, an Equitable Mortgage can be created at the place where the property is situated but Ex.A3-Agreement dated 05.06.1997 between the First Respondent/Plaintiff and the Appellant/Second Defendant shows that the same was executed at Bangalore pertaining to a property flat at Coimbatore and therefore the Suit is not maintainable as per the provisions of the Transfer of Property Act, 1882. 22. It is to be pointed out that where a Deposit of Title Deeds takes place, it has to be ascertained in the usual manner. As a matter of fact the Territorial Restrictions referred to Section 58(f) of the Transfer of Property Act has reference only to the delivery of the documents of title, and not to the situation of the property mortgaged. Once the mortgage has been created in a notified Town, the Registration of the Memorandum can be either at the town where the Equitable Mortgage has been created or in the office of the Sub-Registrar within whose jurisdiction, the mortgaged property is situated. However, as long as the Memorandum merely confirms an Equitable Mortgage already created in a notified town, the Registration of Memorandum even outside the notified towns, will be valid as per the decision State Bank of Mysore v. SM Essence Distilleries Pvt, Ltd, & Others, AIR 1993 Kar. 359 , at page 365. 23. It is not out of place for this Court to point out that the Requisites of an Equitable Mortgage are: (a) a Debt; (b) a Deposit of Title Deeds; and © an intention that the Deeds shall be security for the Debt 24. At this stage, we deem it appropriate to cite the decision of this Court MTC. 23. It is not out of place for this Court to point out that the Requisites of an Equitable Mortgage are: (a) a Debt; (b) a Deposit of Title Deeds; and © an intention that the Deeds shall be security for the Debt 24. At this stage, we deem it appropriate to cite the decision of this Court MTC. Ltd v. S. Mohamed Ghani, AIR 2002 Mad 378 , whereby and whereunder it is held as follows: “In order to prove the existence of an Equitable Mortgage, the following requisites are necessary: (1) a debt; (2) a Deposit of Title Feeds; and (3) an intention that the deeds shall be security for the debt./ The debt may be an existing debt or a future debt. Insofar as the deposit of title deed is concerned, physical delivery of document is not the only mode of deposit and even the constructive delivery has been held sufficient. It is sufficient if the deeds deposited bona fide relate to the property or are material evidence of title and are shown to have been deposited with an intention to create a security thereon. The essence of the whole transaction of Equitable Mortgage by Deposit of Title Deeds is the intention that the title deeds shall be the security for the debt. Whether the said requisite intention is available in a given case is a question of fact and has to be ascertained after considering the oral, documentary and circumstantial evidence. It is true the mere fact of deposit does not raise the presumption that such an intention existed. Such an intention cannot ;be presumed from the possession since the mere possession of the deeds is not enough without evidence as to the manner in which the possession originated, so that an agreement may be inferred. Even the mere possession of the deeds by the creditor coupled with the existence of a debt need not necessarily lead to the presumption of a mortgage. The mere fact that the documents were coming from the custody of the Plaintiff is not by itself sufficient to prove an intent to create a security. But in a given case unless and until the Defendants satisfactorily explain how the documents came to the Plaintiff’s custody, the said fact would be significant and have a great bearing.’ 25. The mere fact that the documents were coming from the custody of the Plaintiff is not by itself sufficient to prove an intent to create a security. But in a given case unless and until the Defendants satisfactorily explain how the documents came to the Plaintiff’s custody, the said fact would be significant and have a great bearing.’ 25. Further, in Amulya Gopal Majumdar v. United Industrial Bank Ltd, and Others, AIR 1981 Cal. 404 , it is laid down as follows: “In order to create a valid Equitable Mortgage, it is not necessary that the whole or even the material of the documents of title to the property should be deposited nor that the document deposited should show a complete or good title, it is sufficient if the deeds deposited bona fide relate to the property or are material evidence of title or are shown to have been deposited with the intention of creating a security thereof. AIR 1938 Rang. 149 (FB), Foll.” 26. We also aptly recall the decision Saradindu Mukherjee v. Amiya Kumar Basu, AIR 1977 Cal. 343 , wherein it is observed that ‘Mere Deposit of Title Deeds with Creditor by Debtor would not constitute Equitable Mortgage unless intention of creating mortgage is proved by Creditor.” 27. In K.J. Nathan v. Maruthi Rao and Others, AIR 1965 SC 430 , the Hon’ble Supreme Court has held thus: “Under the Transfer of Property Act a mortgage by Deposit of Title-Deeds in one of the forms of mortgages whereunder there is a transfer of interest in specific immovable property for the purpose of securing payment of money advanced or to be advanced by way of loan. Such a mortgage of property takes effect against a mortgage deed subsequently executed and registered in respect of the same property. The three requisites for such a mortgage are (i) Debt (ii) Deposit of Title Deeds (iii) an intention that the deeds shall be security for the Debt. Whether there is an intention that the deeds shall be security for the debt is a question of fact in each case. The said fact will have to be decided just like any other fact on presumptions and on oral, documentary or circumstantial evidence. Whether there is an intention that the deeds shall be security for the debt is a question of fact in each case. The said fact will have to be decided just like any other fact on presumptions and on oral, documentary or circumstantial evidence. Though there is no presumption of law that the mere Deposit of Title Deeds constitutes a mortgage, a Court may presume under Section 114 of the Evidence Act that under certain circumstances a loan and a Deposit of Title Deeds constitute a Mortgage. But that is really an inference as to the existence of one fact from the existence of some other fact or facts. Nor the fact that at the time the Title Deeds were deposited there was an intention to execute a Mortgage Deed in itself negatives, or is inconsistent with, the intention to create a mortgage by deposit of title-deeds to be in force till the mortgage deed was executed. The decisions of English Courts making a distinction between the debt preceding the deposit and that following it can at best be only a guide; but the said distinction itself cannot be considered to be a rule of law for application under all circumstances. Physical delivery is not the only mode of deposit. There may be a constructive deposit. A Court will have to ascertain in each case whether in substance there is a delivery of title-deeds by the Debtor to the Creditor. If the Creditor was already in possession of the title-deeds, it would be hyper-technical to insist upon the formality of the creditor delivering the title-deeds to the Debtor and the Debtor re-delivering them to the Creditor. What would be necessary in those circumstances is whether the parties agreed to treat the documents in the possession of the Creditor or his agent as delivery to him for the purpose of the transaction.” 28. In Pentala Githavardhana Rao and Others v. The Andhra Bank Ltd, and Others, AIR 1973 AP 245 , wherein it is held as below: “In order to constitute a valid Equitable Mortgage by Deposit of Title Deeds within Section 58(f) the actual physical handing over of the documents of title in respect of immovable property by a borrower or his agent to the lender is not necessary. The Deposit of Title Deeds may as well be constructive. Ingredients of Equitable Mortgage pointed. The Deposit of Title Deeds may as well be constructive. Ingredients of Equitable Mortgage pointed. AIR 1950 SC 272 & AIR 1965 SC 1591 .” 29. P.W.1/First Respondent (Plaintiff) in his evidence has deposed that the Second Respondent/First Defendant has asked for a loan from him on 05.06.1997 and he lent the money through Cheque on 06.06.1997 and that the Second Respondent/First Defendant has executed an Agreement on 05.06.1997 and on 06.06.1997, he obtained the signature from Notary public. 30. It is a categorical evidence of P.W.1/First Respondent (Plaintiff) that on 05.06.1997, he had seen the Appellant/Second Defendant and thereafter, he had not seen the Appellant and when he saw the Appellant/Second Defendant, at that time, the Respondent/First Defendant was alone present and that he aware as to whether the Appellant/Defendant’s son Narayanan, the Second Respondent/First Defendant and another jointly were running a Delta Marketing Firm. 31. It is the further evidence of P.W.1/First Respondent(Plaintiff) that in Ex.A3-Surety Agreement of the Appellants/Second Defendant on 5.06.1997, the signature of notary public was not obtained and he does not know the reason therefore and it was incorrect to state that the Appellant/Second Defendant had not executed Ex.A3-Guarantee Deed after coming over to Bangalore. As a matter of fact, P.W.1/First Respondent (Plaintiff) had also in his cross-examination denied the suggestion that Ex.A4-Sworn Affidavit of the Appellant/Second Defendant dated 09.06.1997 was not given at Bangalore. 32. It is the evidence of P.W.2 that in Ex.A10Loan Agreement dated 05.06.1997, the Second Respondent/First Defendant and the Appellant/Second Defendant had signed in his presence and the Appellant/Second Defendant on the same day executed a Surety Agreement agreeing to mortgage a property and the signature found in Ex.A3-Second Defendant’s Surety Agreement dated 05.06.1997 was signed by the First Respondent/Plaintiff and the Defendants in his presence. Further more, he had signed as a first witness in Ex.A1-Loan Agreement dated 05.06.1997 and in Ex.A3, Second Defendant’s Surety Agreement dated 05.06.1`997 and on the next day, a cheque of Vijaya Bank, Bangalore was given to the Second Respondent/First Defendant by the First Respondent/Plaintiff for a value of Rs.12 lakhs. 33. P.W.2 in his cross-examination has candidly stated that the Appellant/Second Defendant came to Bangalore and signed as a witness along with him and further added that it was not correct to state that the Appellant/Second Defendant had not signed in Ex.A1-Loan Agreement dated 05.06.1997 and in Ex.A3-Surety Agreement dated 05.06.1997. 34. 33. P.W.2 in his cross-examination has candidly stated that the Appellant/Second Defendant came to Bangalore and signed as a witness along with him and further added that it was not correct to state that the Appellant/Second Defendant had not signed in Ex.A1-Loan Agreement dated 05.06.1997 and in Ex.A3-Surety Agreement dated 05.06.1997. 34. D.W.1/First Defendant (Second Respondent) in his evidence has stated that the Appellant/Second Defendant is the mother of partner R. Venkata Narayanan and that he with his partner and another managed Delta Marketing Firm and that the Fist Respondent/Plaintiff was his relative and therefore he had informed him that no interest was to be paid to the Loan advanced by him and that no Promissory Note was executed and that he and the Appellant/Second Defendant had not gone to Bangalore and affixed their signatures. 35. D.W.1 in his cross-examination has stated that the Appellant/Second Defendant had given an assurance for the loan availed by him but he had not executed any Agreement and in Ex.A7-his Reply Notice dated 24.08.2001, he has stated that he has executed the Loan Agreement along with the Appellant/Second Defendant and also he has also further stated in paragraph No.2 of the reply that the Appellant/Second Defendant in respect of her property has mortgaged the document but the same was effected at Coimbatore and as alleged by the First Respondent/Plaintiff, it was not correct to state that from 05.06.1997 to 09.06.1997, he along with the Appellant/Second Defendant had been to Bangalore, met the Notary public and written the Sworn Affidavit. 36. D.W.2/the Appellant (Second Defendant) in her evidence has stated that the Second Respondent/First Defendant and her son are friends from school days and that she rendered all help to the Second Respondent/First Defendant like that of her son and she has signed in blank documents and in connection with the business pertaining to Banking transaction her son used to ask for her signatures and that she used to sign when asked by her son in this regard and the signature found in Ex.A1-Loan Agreement dated 05.06.1997, Ex.A3-Surety Agreement dated 05.06.1997 and Ex.A4-Affidavit dated 09.06.1997 are her signatures. 37. 37. It is the further evidence of D.W.2/Appellant (Second Defendant) that she has signed in blank paper at Coimbatore and it is not correct to state that from 05.06.1997 to 09.06.1997, she was at Bangalore and that stamp paper has been purchased in her name and she signed and on 05.06.1997, a signature has not been obtained and that the suit property has been purchased in her favour as per Ex.A5-Sale Deed dated 11.06.1986. 38. In Ex.A1-the Loan Agreement dated 05.06.1997 entered into between the Second Respondent/First Defendant (Borrower) of the oe part and the Appellant/Second Defendant (Surety), it is among other things mentioned that ‘the Second Respondent/First Defendant was in need of the financial assistance of a sum of Rs.12,00,000/- and that the First Respondent/Plaintiff has agreed to lend a sum of Rs.12,00,000/- subject to the guarantee given by the Surety, etc. Moreover in Ex.A1-the Loan Agreement dated 05.06.1997, the Recitals were to the effect that the First Respondent/Plaintiff had advanced a sum of Rs.12,00,000/- to the Second Respondent/First Defendant by way of cheque, the receipt of which was acknowledged by him and to secure the repayment of the said sum of Rs. 12,00,000/- and the interest accrued thereon, the Appellant/Second Defendant (Surety) undertook to create a mortgage by Deposit of Title Deeds of immovable property and the said sum of Rs.12,00,000/- was to be repaid ;by the Second Respondent/First Defendant to the First Respondent/Plaintiff on the expiry of a period of five years from 05.06.1997. That apart, in Ex.A1, it was mentioned that the second Respondent/First Defendant had agreed to pay the monthly interest to the First Respondent/Plaintiff at 1`8% per annum on the sum of Rs.12,00,000/- till the full repayment of the principal amount, was made within five years period. Further, the Second Respondent/First Defendant had agreed and undertook to pay additional penal interest of 6% per annum over the normal interest of 18% per annum in the event of his failure to repay the principal amount within the said period of five ;years till the repayment was made. Significantly, in Ex.A1-the Loan Agreement dated 05.06.1997, the Second Respondent/First Defendant, the First Respondent/Plaintiff and the Appellant/Second Defendant had affixed their signatures. 39. Significantly, in Ex.A1-the Loan Agreement dated 05.06.1997, the Second Respondent/First Defendant, the First Respondent/Plaintiff and the Appellant/Second Defendant had affixed their signatures. 39. As seen from Ex.A2-Affidvit dated 06.06.1997 of the Second Respondent/First Defendant, it was evident that he had borrowed a sum of Rs.12,00,000/- from the First Respondent/Plaintiff through Cheque No.658328 dated 06.06.1997 drawn on Vijaya Bank, Akkipet, Bangalore and that he undertook to repay the said amount on the expiry of five years from the date of receipt of the same. Also, in Ex.A12-Affidavit, it was mentioned that the Appellant/Second Defendant had agreed to give the guarantee to the repayment of the said sum of Rs.12,00,000/- for the purpose of securing the repayment ad it created a mortgage by Deposit of Title Deeds in favour of the First Respondent/Plaintiff and accordingly, deposited the Title Deeds of the residential property bearing No.301-B, Bafna Courts, Ponnurangam, R.S. Puram, Coimbatore in Tamil Nadu. 40. In Ex.A3, Surety Agreement dated 05.06.1997 refers to the Recitals mentioned in Ex.A1-Loan Agreement dated 05.06.1997. 41. Though in Ex.A4, Affidavit of the Appellant/Second Defendant dated 09.06.1997, it was mentioned inter alia that as per the Agreement dated 05.06.1997 and to give effect to the guarantee that she had given to the repayment of the loan amount to the First Respondent/Plaintiff, she had created a mortgage by Deposit of Title Deeds to her immovable property at Coimbatore and accordingly, deposited the Title Deeds with the First Respondent/Plaintiff, the same are vehemently denied by the Appellant/Second Defendant. 42. Ex.A5 is the Sale Deed dated 11.06.1986 in respect of the suit property in favour of the Appellant/Second Defendant executed by Bafna Construction Company Private Limited, Coimbatore. 43. 42. Ex.A5 is the Sale Deed dated 11.06.1986 in respect of the suit property in favour of the Appellant/Second Defendant executed by Bafna Construction Company Private Limited, Coimbatore. 43. At this juncture, it is useful to refer to Ex.A6-Lawyer’s Notice dated 08.08.2001 issued by the First Respondent/Plaintiff to the Second Respondent/First Defendant and the Appellant/Second Defendant wherein it was mentioned that the Second Respondent/First Defendant availed a loan of Rs.12,00,000/- from the First Respondent/Plaintiff for which Ex.A1-the Loan Agreement dated 05.06.1997 was executed by the Second Respondent/First Defendant along with the Appellant/Second Defendant, who was a Guarantor for the due repayment of the loan and for the due repayment of the loan, the Appellant/Second Defendant deposited with the Second Respondent/Plaintiff at Bangalore the Title Deeds of her property measuring 422 square feet of an undivided part of the land ad Flat No.301-B in III Floor Bafna Courts, Ponnurangam Road (West), R.S. Puram, Coimbatore and created an Equitable Mortgage over the same on 08.06.1997 and confirmed the factum of Deposit of Title Deeds and creation of Equitable Mortgage by an Affidavit on 09.06.1997 duly notarised. 44. In substance, Ex.A6, Lawyer’s Notice dated 08.08.2001 issued by the First Respondent/Plaintiff to the Second Respondent/First Defendant and the Appellant/Second Defendant refers to the recalling of the loan and asking for the repayment of sum of Rs.12,00,000/- and interest from 01.10.1998 along with Rs.1,000/-being the legal expenses of the notice, etc. 45. In the present case, the Appellant/Second Defendant had issued Ex.A8-Reply Lawyer’s Notice dated 06.09.2001 addressed to the First Respondent/Plaintiff’s counsel wherein she had denied the alleged loan of Rs.12,00,000/- on 05.06.1997, the Guarantee and the Deposit of Title Deeds and also a stand was taken by the Appellant/Second Defendant that she had never been to Bangalore during 1997. Also she had taken a plea that her son R. Venkata Narayanan used to get signatures in the blank papers and blank stamp papers for the purpose of bank transaction and apprehended that one such blank signatures given by her was made use of by the Second Respondent/First Defendant and moreover, she had not visited Bangalore nor appeared or executed any affidavit or document in the presence of notary and that apart, she also denied the creation of purported Equitable Mortgage by means of Deposit of Title Deeds. 46. 46. Ex.A9, the Lawyer’s Reply Notice dated 15.09.2001 issued by the First Respondent/Plaintiff’s Lawyer addressed to the Appellant/Second Defendant’s Lawyer, it was mentioned that the Appellant/Second Defendant appeared before notary and executed all the documents mentioned in the Notice dated 08.08.2001 and the denial of Deposit of Title Deeds and execution of Memorandum and execution of all the connected agreements were self serving. 47. In view of the specific denial of the Appellant/Second Defendant that she had not executed Ex.A3 Surety/Guarantor Agreement dated 05.06.1997, her denial of Deposit of Title Deeds with the First Respondent/Plaintiff with a view to create Equitable Mortgage in respect of the suit property and her denial in regard to the execution of an affidavit confirming the Deposit of Title Deeds on 09.06.1997, etc., the onus heavily lies on the First Respondent/Plaintiff to prove to the subjective satisfaction of this Court that the Appellant/Second Defendant had executed Ex.A3-Surety Agreement dated 05.06.1997 and Ex.A4-Affidavit dated 09.06.1997, in our considered opinion. 48. In Ex.A1, the Loan Agreement dated 05.06.1997 entered into between the Second Respondent/First Defendant, the First Respondent/Plaintiff and the Appellant/Second Defendant, the Second Respondent/First Defendant had signed as ‘Borrower’, the First Respondent/Plaintiff had signed as ‘Lender’ and the Appellant/Second Defendant had signed as ‘Surety 1, in the presence of two witnesses viz., T.R.Ramanatha Gupta (P.W.2) and another. In Ex.A3, Surety Agreement of the Appellant/Second Defendant dated 05.06.1997, the First Respondent/Plaintiff and the Appellant/Second Defendant had signed as ‘Lender’ and ‘Surety’ before the witnesses P.W.2 (T.R. Ramanatha Gupta) and another. In Ex.A4-Affidavit of the Appellant/Second Defendant dated 09.06.1997, the Appellant/Second Defendant had signed as ‘Deponent’ before M.G. Muthappa, B.A., L.L.B., Advocate and Notary, Government of India, Bangalore 560 053. 49. P.W.2 (who signed as a witness in Ex.A1-Agreement and Ex.A3 Agreement dated 05.06.1997) had deposed that he and the first Respondent/Plaintiff are close relatives and that the First Respondent/Plaintiff and the Second Respondent/First Defendant are close relatives and in Ex.A1-Loan Agreement and Ex.A3-Surety Agreement, the Plaintiff ad the Defendants had signed and it was not correct to state that the Appellant/Second Defendant had not signed as witness in Ex.A1 and Ex.A3-Agreeents. Also, it is the further evidence of P.W.2 that apart from themselves, he does not know as to the other persons who had signed in Ex.A1 and Ex.A3-Agreeents. Also, it is the further evidence of P.W.2 that apart from themselves, he does not know as to the other persons who had signed in Ex.A1 and Ex.A3-Agreeents. Before the Trial Court, the second witness who signed in Ex.A1 ad A3-Agreeents was not examined as a witness on the side of the First Respondent/Plaintiff. The Advocate and Notary Public M.G. Muthappa of Bangalore was also not examined before the Trial Court on the side of the First Respondent/Plaintiff to establish that the Appellant/Second Defendant had sworn before him in Ex.A4-Affidavit in order to prove that she had created a Mortgage by Deposit of Title Deeds in respect of her property viz., flat at Coimbatore. 50. Further, on perusal of Ex.A1-Loan Agreement dated 05.06.1997 and Ex.A3-Appellat/Defedant’s Surety Agreement dated 05.06.1997, we find that the contents of the matter had been typed out by leaving a sizeable space just probabilising the case of the Appellant/Second Defendant in a plausible manner that her blank signatures in these documents were made use of by the Second Respondent/First Defendant and the First Respondent/Plaintiff, in our considered opinion. Likewise, in Ex.A4-Affidavit of the Appellant/Second Defendant dated 09.06.1997 (purported to be a one in regard to the Deposit of Title Deeds of the Appellant/Second Defendant/s immovable property at Coimbatore). We find that the five lines of the contents of the matter were related to her solemn confirmation had been typed out without leaving enough space in between the lines but significantly the other paragraphs 2 to 4 contents of the typed matter in Ex.A4 were typed out leaving large space in between the lines and this would also raise a reasonable, genuine and simmering doubt as to the creation of document with that of obtaining the blank signature of the Appellant/Second Defendant in the said document. Surprisingly, the Advocate who identified the Appellant/Second Defendant in Ex.A4-Affidvit dated 09.06.1997 was not examined as a witness before the Trial Court on the side of the First Respondent/Plaintiff. 51. Merely because Ex.A5-the Sale Deed dated 11.06.1986 in favour of the Appellant/Second Defendant was produced by the First Respondent/Plaintiff before the Trial Court. Surprisingly, the Advocate who identified the Appellant/Second Defendant in Ex.A4-Affidvit dated 09.06.1997 was not examined as a witness before the Trial Court on the side of the First Respondent/Plaintiff. 51. Merely because Ex.A5-the Sale Deed dated 11.06.1986 in favour of the Appellant/Second Defendant was produced by the First Respondent/Plaintiff before the Trial Court. It was not enough on the part of the First Respondent/plaintiff to state that the Appellant/Second Defendant had handed over Ex.A5-the Sale Deed dated 11.06.1986 or Ex.11-the Encumbrance Certificate (from 01.01.1983 to 31.02.1999) with an intention to create an Equitable Mortgage/Security for the loan availed by the Second Respondent/First Defendant from the First Respondent/Plaintiff, in our considered view. In short, the essence of whole transaction of Equitable Mortgage by Deposit of Title Deeds is the desire of a person that the title deeds shall be the security for the death and where the said intention is made out in a particular case is a question of fact which has to be found out after the appreciation of oral and documentary and other circumstantial evidence surrounding the case which float on the surface. 52. We pertinently point out that even the mere factum of Deposit of Title Deeds or the handing over of Ex.A11-Encumbrance Certificate does not give rise to presumption that an intention to create an Equitable Mortgage really existed. In the present case on hand, the Appellant/Second Defendant in her evidence had stated that her son used to ask her signature in connection with his business and whenever he asked for the same, she had affixed her signature and further she had signed in the blank stamp papers and that she does not know as to how these documents were made use of by her son. Added further, she had put her signature in blank stamp papers at Coimbatore and inasmuch as the Appellant/Second Defendant’s son and the Second Respondent/First Defendant were close friends and conducted business together for over 12 years, the evidence of the Appellant/D.W.2 to the effect that her signatures in blank stamp papers was made use of by the Second Respondent/First Defendant could not ;be easily brushed aside and her evidence in regard to the manner in which she had signed in the blank stamp papers at Coimbatore was really a cogent, convincing and a realistic one and worthy of acceptance and accordingly is accepted. However, we reject the self serving evidence of P.Ws.1 and 2 relating to the suit transaction inasmuch as they do not inspire the evidence of this Court. Indeed, though the evidence of D.W.1/First Defendant is to the effect that he admitted as true the receipt of loan amount of Rs.12,00,000/-, his evidence really corroborates the version of D.W.2/Second Defendant that he and her had not gone to Bangalore from 05.06.1997 to 09.06.1997 and met the Notary Public, etc. 53. Since the Second Respondent/First Defendant has admitted the loan of Rs.12,00,000/- and such admission being an unequivocal and a clear cut one, the finding so rendered by the Trial Curt in this regard is a binding and final one till the same is assailed in an Appeal. 54. Be that as it may, as far as the present case is concerned, on an appreciation of oral, documentary, attendant circumstances and circumstantial evidence, suffice it for this Court to make a mention that in the instant case, the First Respondent/Plaintiff had not proved to the satisfaction of this Court that the Appellant/Second Defendant had executed Ex.A1-Loan Agreement dated 05.06.1997, Ex.A3-Surety Agreement dated 05.06.1997 and Ex.A4-Affidavit dated 09.06.1997 confirming the Deposit of Title Deeds and also, only in the manner in which the Appellant/D.W.2 had signed in the blank papers and stamp papers, as deposed by her evidence, there was a possibility of herself having handed over the same and only in that way, she would have handed over Ex.A5-Sale Deed dated 11.06.1986 in her favour to her son Venkata Narayanan or Ex.A11-the Encumbrance Certificate and later the same was made use by the Second Respondent/First Defendant in regard to the loan of Rs.12,00,000/- availed by him, Thus, the point Nos.1 to 3 are answered against the First Respondent/Plaintiff and this Appeal succeeds. 55. We point out that a perusal of Ex.A1-Loan Agreement dated 05.06.1997 executed by the Second Respondent/First Defendant as Borrower between the First Respondent/Plaintiff as Lender along with the Appellant/Second Defendant as Surety shows that a contract of indemnity as per Section 124 of the Indian Contract Act contained in an instrument which is implied bylaw or is ancillary to the main purpose of it is not separately chargeable with duty as per Article 34 of the Stamp Act as an indemnity bond in lieu of the decision 1 MAD 133. In this connection, in the interest of justice, we worth quote the decision of this Court in The Chief Controlling Revenue Authority Board of Revenue, Madras v. R.K. Subramaniam and others, AIR 1977 Mad.44, whereby and whereunder it is held as follows: “…….Under a Sale Deed some property X was offered by the vendors and accepted by the vendees as indemnity against any loss, damages or claim in regard to the property conveyed. Subsequently the vendees released their right over X property and accepted Y property as indemnity and the vendor executed an instrument purposing to be an indemnity bond in favour of vendee in respect of substituted property. Held, that the document was only an indemnity bond and chargeable as such. It would not fall under mortgage deed” and consequently Section 6 could not be invoked.” 56. Though Ex.A3-Surety Agreement of the Appellant/Second Defendant dated 05.06.1997 pertains to her undertaking to create a mortgage by Deposit of Title Deeds in respect of the immovable property mentioned therein this document purported to have been executed to secure the due performance of a contract attracts the applicability of Article 57 of the Indian Stamp Act and therefore the same is chargeable to duty as a bond. A strict interpretation is necessary to find out whether an instrument will come within the ambit of Article 57 of the Schedule 1 of Indian Stamp Act, 1899. But in the present case on hand, Ex.A3 was not subjected to the proper stamp duty payable as per Article 57 of the Indian Stamp Act and the same is not admissible in evidence, n our considered view. 57. In the result, the Appeal is allowed. The Judgment of the Trial Court dated 29.11.2005 passed in O.S. No.703/2004, in so far as it relates to the Appellant/Second Defendant in directing her to pay the suit sum of Rs.12,00,000/- together with interest at 24% p.a. from the date of filing of the Suit till date of realization and along with costs within a period of six months and in default to bring her property for sale is set aside. Having regard to the facts and circumstances of the case, there shall be no order as to costs. The connected Miscellaneous Petition is closed.