Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 4165 (MAD)

Gowri v. P. S. Thiyagarajan

2016-12-16

N.SATHISH KUMAR

body2016
JUDGMENT : The suit has been filed for recovery of a sum of Rs.28,00,000/- together with interest at the rate of 18% p.a for Rs.22,00,000/- from the date of plaint till the date of realisation. 2. The brief facts of the case of the plaintiff are as follows: The defendant is a close relative of the plaintiff, who has borrowed a sum of Rs.25,00,000/- from the plaintiff for purchase of the property. He has acknowledged the receipt of a sum of Rs.25,00,000/- in the Memorandum of understanding executed by him on 28.11.2008. He undertook to pay the said sum of Rs.25,00,000/- with interest on or before 10th day of every month without fail. Besides he also borrowed another sum of Rs.3,00,000/- from the plaintiff. But the same was purposely omitted to be mentioned in the Memorandum of agreement. The interest rate also conveniently mentioned in the agreement by the defendant. The defendant had paid a sum of Rs.6,00,000/- towards the principal and interest thereon as part payment on 25.12.2009. Thereafter, since the defendant defaulted the payment, the plaintiff has filed the present suit. 3. The defendant remained ex parte. The plaintiff was examined as P.W.1 and Exs.P1 and P2 were marked. P.W.1 in his evidence stated that the defendant borrowed a sum of Rs.25,00,000/- and acknowledged the same in the year 2008 and executed a Memorandum of understanding Ex.P1. Subsequently, though it is stated that the defendant, received another a sum of Rs.3,00,000/-, the same has not been properly mentioned in the Memorandum of understanding. The interest rate also conveniently mentioned in the Memorandum of understanding. As per the said Memorandum of understanding interest at the rate of 18% p.a. was payable. Subsequently, in the year 2009, a part amount of Rs.6,00,000/- towards Principal and interest was payable by the defendant. Though the plaintiff has spoken in chief examination about the term exclusive rate of interest and subsequent advance of a sum of Rs.3,00,000/-, no documents, whatsoever, filed to prove the same whereas Ex.P1 Memorandum of understanding executed between the plaintiff and the defendant, covered only a sum of Rs.25,00,000/-, originally paid to the defendant, further in the said Memorandum of understanding, specific agreed rate of interest was at 6% Therefore the oral evidence of the plaintiff cannot be given much importance as the same is contrary to the written agreement entered in to between plaintiff and the defendant. 4. 4. At the most, Ex.P1, Memorandum of understating entered between the plaintiff and the defendant alone can be looked into. On a careful reading of Ex.P1, it is seen that the defendant has acknowledged the receipt of a sum of Rs.25,00,000/- on various dates, and he under took to pay the interest as agreed in the Memorandum of understanding. The Memorandum of understanding was signed on 28.11.2008. The legal notice was also issued on 15.03.2011. The suit was filed within a period of three years from the date of acknowledgment. Therefore, the suit filed by the plaintiff is well within the period of limitation. 5. From the evidence of P.W.1 it is clear that a sum of Rs.6,00,000/- was paid as part payment towards Principal and interest. In the plaint, there is no whisper about the payment of interest by the defendant. In the absence of any documents to the substantiate nature of interest, interest claimed by the plaintiff, cannot be accepted. 6. Since the plaintiff has shown receipt for Rs.6,00,000/- the same can be taken towards the payment for principal amount alone. Hence, less the said sum of Rs.6,00,000/- received, the plaintiff is entitled to a decree for a sum of Rs.19,00,000/-, the plaintiff is also entitled to interest at the rate of 6% p.a. on Rs.25,00,000/- from the date of Ex.P1, i.e., on 28.11.2008 till 25.12.2009. There after interest at the rate of 6% on Rs.19,00,000/- from 25.12.2009 till the date of realization. 7. Having regard to the evidence and documents, the plaintiff is entitled to a decree for a sum of Rs.19,00,000/- towards the principal with interest at the rate of 6% p.a. on Rs.25,00,000/- till 25.12.2009. There after interest at 6% on Rs.19,00,000/- from 25.12.2009 till the date of realisation.