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2021 DIGILAW 3130 (MAD)

Manimuthu Samuel v. Maria Anthony

2021-11-15

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : This second appeal has been directed against the Judgment and decree, dated 06.02.2018 passed in A.S.No.20 of 2017, by the I Additional District Court, Tirunelveli, the judgment and decree, dated 16.11.2015 passed in O.S.No.189 of 2012 by the Subordinate Court, Valliyoor, are modified. 2. The respondent herein as plaintiff has instituted a suit in O.S.No.189 of 2012 on the file of the trial Court for recovery of money, wherein the appellants have been shown as defendants. 3. In the plaint it is averred that the plaint schedule property belonged to the defendants. The defendants 2 to 4 are the sons of the first defendant. The first defendant is a retired Teacher. The defendants borrowed a sum of Rs.3,00,000/- from the plaintiff on 27.05.2008 to meet out their family expenditure and other expenditures and executed a registered mortgage deed in respect of the plaint schedule property on the same day and agreed to pay interest at the rate of 12% per annum ie., a sum of Rs.3,000/- per month. Therefore, as on 27.10.2012, the defendants are liable to pay a sum of Rs.4,59,000/- inclusive of principal and interest. Though the plaintiff is entitled for interest at the rate of 18% in default, he has claimed interest at the rate of 12% per annum. The defendants did not pay the interest from the date of mortgage nor the principal as agreed and was evasive when the plaintiff demanded money. In the meantime, the first defendant sent a Demand Draft for a sum of Rs.3,000/- and the plaintiff encashed the same. The interest of Rs.3,000/- has been deducted from the abovesaid amount and the defendants are liable to pay a sum of Rs.4,56,000/-. As the defendants have not repaid the amount, the suit has been filed for the recovery of money on the mortgage. 4. In the written statement filed on the side of the defendants, the defendant had refuted the averments made in the plaint that the defendants received a sum of Rs.3,00,000/- from the plaintiff for the family expenses and to execute a mortgage deed. The defendants further stated that they received a sum of Rs.1,50,000/- only from the plaintiff. Since the defendants demanded the execution of mortgage deed for Rs.3,00,000/- for lending Rs. 1,50,000/-, the defendants had to execute the deed for Rs.3,00,000/-. The defendants further stated that they received a sum of Rs.1,50,000/- only from the plaintiff. Since the defendants demanded the execution of mortgage deed for Rs.3,00,000/- for lending Rs. 1,50,000/-, the defendants had to execute the deed for Rs.3,00,000/-. The first defendant has regularly paid the monthly interest of Rs.3,000/- per month to the plaintiff in person till April, 2011 and the first defendant sent the interest of Rs.3,000/- for the month of May, 2011 through Demand Draft along with a letter dated 26.05.2011 and the plaintiff received the letter on 01.06.2011. Hence, the suit has to be dismissed. 5. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1, one Ganesan was examined as P.W.2 and one Thillaipazham was examined as P.W.3 and Exs.A1 and A2 were marked. On the side of the defendants, one Manimuthusamuel was examined as D.W.1 and one Sivaperumal was examined as D.W.2 and Exs.D.1 and D.2 were marked and on the side of the witness, Ex.X.1 and X.2 were marked. 6. On the basis of the rival pleadings on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence, has decreed the suit in favour of the appellant / plaintiff. The trial Court directed the defendants to pay a sum of Rs.4,56,000/- to the plaintiff with interest at the rate of 12% per annum from the date of plaint till the date of decree and 6% per annum from the date of decree till the date of realization for the principal amount of Rs.3,00,000/- and in default the schedule property be proceeded with to recover the loan amount and granted time for payment for three months. 7. Aggrieved by the Judgment and decree passed by the trial Court, the defendants as appellants, had filed an Appeal Suit in A.S.No.20 of 2017. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal in part insofar as the payment of Rs.3,00,000/- with interest to the plaintiff and the plaintiff is entitled to only Rs.3,00,000/- being principal amount and he is not entitled for any interest as per Ex.A.1 and the plaintiff is entitled for interest at the rate of 6% per annum from the date of judgment of the trial Court till the date of payment. 8. 8. The learned counsel appearing for the appellants/defendants contended that the first Appellate Court ought to have fully set aside the judgment and decree of the trial Court instead of modifying the same as if the appellants have to repay a sum of Rs.3,00,000/- is unsustainable and the same is liable to be set aside. The Courts below have failed to note that the defendants paid a sum of Rs.3,000/- towards interest for the amount of Rs.1,50,000/- at the rate of 12% interest as demanded by the plaintiff would clearly show that the actual amount borrowed and the same is also admitted by the plaintiff and prayed for allowing the Second Appeal. 10. Though the name of the respondent has been printed in the causelist, none appeared on behalf of the respondent either in person or through counsel. 11. Heard the learned counsel for the appellant and perused the materials available on record. 12. It is the admitted case of the respondent/plaintiff that the plaint schedule property belonged to the defendants and the defendants borrowed a sum of Rs.3,00,000/- from the plaintiff on 27.05.2008 to meet out their family expenditures and other expenditures and executed a registered mortgage deed in respect of the plaint schedule property on the same day and agreed to pay interest at the rate of Rs.3,000/- per month. It is the admitted case of the appellants / defendants that they received only a sum of Rs.1,50,000/- and paid the monthly interest of Rs.3,000/- per month. It is the further case of the appellants/defendants that an exorbitant interest has been levied by the plaintiff when they paid a sum of Rs.3,000/- for one month, it should be taken into account and the mortgage deed executed is only for Rs.1,50,000/- and not for Rs.3,00,000/- and the same has not been established by let in any appropriate evidence. The contract entered into between the parties under the mortgage deed is for a sum of Rs.3,00,000/- and the defendants have not chosen to file any other material or filed any application for repaying the same. When the respondent/plaintiff, who is a licenced money lender, who has also deposed before the Court that he will produce the necessary documents regarding maintenance of accounts, but the same has not been asked for by the defendants to produce the same by taking out any application. When the respondent/plaintiff, who is a licenced money lender, who has also deposed before the Court that he will produce the necessary documents regarding maintenance of accounts, but the same has not been asked for by the defendants to produce the same by taking out any application. It is also further seen that when the defendants received a sum of Rs.1,50,000/-, other than the oral evidence, the defendants are not in a position to prove the same. It is further stated that the burden of proof lies on the party, who denies the said claim and there cannot be any adverse inference can be inferred against the plaintiff when he has proved the same. It is also further stated that when the first appellant/first defendant who has executed the said document is a retired Headmaster of a School and it was proved that he has loan transactions of obtaining money from various parties and also against him cases under Section 138 of the Negotiable Instruments Act are also pending. After reading the mortgage deed only, the first defendant signed the same and he and his three sons have executed the same which was also admitted by him in the said evidence in cross-examination. It is further seen that the claim made by the appellants/defendants that they received only a sum of Rs.1,50,000/- has not been proved. It is mere statement and not supported by any documents that they received only Rs.1,50,000/-. If such stand has to be allowed, then the defendants ought to have proved the same by letting any appropriate evidence, as he has borrowed only a sum of Rs.1,50,000/-. The said contention has not been accepted by the plaintiff and the plaintiff had produced the appropriate mortgage deed, which is a registered one to show that the plaintiff has paid a sum of Rs.3,00,000/- and the appellants have not let in any contra evidence in this regard, except giving an evidence as a selfinterested testimony as D.W.1 and he has not denied the transaction in entirety. When the person has accepted his transaction with the other person, he cannot be allowed to accept part and deny the remaining, especially, when he is a party to the said document. Chapter 6 of the Indian Evidence Act, 1872, bars such oral evidence against the documentary evidence under Sections 91 and 93. When the person has accepted his transaction with the other person, he cannot be allowed to accept part and deny the remaining, especially, when he is a party to the said document. Chapter 6 of the Indian Evidence Act, 1872, bars such oral evidence against the documentary evidence under Sections 91 and 93. The defendants have not disputed the execution of Ex.A.1 and the purpose for which it has been executed which clearly states that they borrowed a sum of Rs.3,00,000/- and now they cannot come and state that they have borrowed only a sum of Rs.1,50,000/-. 13. It is also further seen that they have been paying one rupee per Rs. 100/- and only a mortgage deed was executed by the defendants, who has accepted the signature of the said document, cannot now take a stand that they received only a sum of Rs.1,50,000/- which is also a factual aspect and as such, there is no question of law involved in the present Second Appeal. 14. The first Appellate Court has rightly gone into the issue of interest rate prescribed under Ex.A.1, which is beyond the provisions of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003, wherein the said claim of percentage is to the principal and rate of interest at the rate of 12%, in default, 18% cannot be accepted as normal and the first Appellate Court below has rightly come to the conclusion that the plaintiff is entitled for interest only at 6% per annum, for which, this Court is also agreeable and confirm the same. As the plaintiff is not entitled for interest portion as per the plaint and after adhering to the appropriate legal provisions only 6% of interest has been allowed and the same is also hereby confirmed. 15. As the plaintiff is not entitled for interest portion as per the plaint and after adhering to the appropriate legal provisions only 6% of interest has been allowed and the same is also hereby confirmed. 15. The other issues regarding the denial of the defendants which has not been appropriately elucidated before this Court and this Court is not inclined to accept the other versions of the defendants that they have not executed the mortgage deed for a sum of Rs.3,00,000/- and it is only for a sum of Rs.1,50,000/- and as they have admitted the execution of the disputed mortgage deed, this Court is of the view that when there is no contrary evidence has been produced, when the appellants/defendants have admitted the execution of the said deed cannot be just contrary to the same admission made by him during the course of the trial and this Court finds no question of law has arisen in this regard for consideration and only on the factual aspects, the appellants herein has filed the present Second Appeal, which is liable to be dismissed. No costs. 16. In fine, this second appeal is dismissed, without costs and the judgment and decree, dated 06.02.2018 passed in A.S.No.20 of 2017, on the file of the I Additional District Court, Tirunelveli is confirmed. consequently, connected Miscellaneous Petition is closed.