JUDGMENT : Heard Mr. L.H. Lianhrima, learned senior counsel appearing on behalf of the appellant and Mr. T. Lalnunsiama, learned counsel for the respondent no.1. Respondent no.2 is the proforma respondent. 2. This is an appeal for setting aside the Judgment and order and Decree passed by the Senior Civil Judge, Lunglei in Civil Suit No.22/2010 dated 16.03.2016. 3. The brief facts leading to the filing of the present appeal is that the defendant no.1/appellant approached the plaintiff/respondent no.1 by submitting his application for Small Scale Composite Term Loan on 11.03.2002 for a sum of Rs. 9,50,000/-for his business of stone works. As a result, the defendant no.1/appellant was granted a loan of Rs. 9,50,000/-on 01-03-2004 under the terms and conditions laid down therein. The defendant no.1/appellant mortgaged his LSC No. 89 of 1974 for the purpose of bringing equitable mortgage of the loan and it was taken as security against the said loan amount. .Further, the defendant no. 2/respondent no.2 stood as guarantor and executed the Guarantee Agreement in favour of the defendant no.1/appellant on the same date itself. The cause of action arose when the defendant no.1/appellant failed to repay the loan and the plaintiff/respondent no.1 approached the Learned Court below by filing a Civil Suit under order XXXIV CPC and order XXXIV Rule 6 CPC foreclosure and sale of the mortgaged property covered by LSC No.89 of 1974 belonging to the appellant/defendant No.1, in order to recover the outstanding amount of loan Rs.6,74,991/-due to the plaintiff on the month of May 2008 along with interest @13% p.a effecting from May 2008 till realization. 4. The case was registered as Civil Suit No 22 of 2010 and the suit was contested by the Appellant/Defendant no.1, who submitted his Written Statement to the effect, that the suit is not maintainable in its present form and style, it is barred by the limitation, laches, waiver and acquiescence, that the plaint was not properly stamped as requisite court fees have not been deposited along with the plaint and the defendant no.1 prayed for dismissal of the suit. From the submissions made by both the parties, the learned Lower Court framed the following issues:- i). Whether the suit is maintainable in its present form and style or not. ii). Whether the suit is barred by law of limitation or not. iii). From the submissions made by both the parties, the learned Lower Court framed the following issues:- i). Whether the suit is maintainable in its present form and style or not. ii). Whether the suit is barred by law of limitation or not. iii). Whether the plaintiff has cause of action to file the suit against the defendants or not. iv). Whether the plaintiff and the defendants had executed a valid mortgaged deed or not. If not, whether the defendants are liable for the default of the plaintiff or not. v) Whether the plaintiff is entitled to the relief claimed or not. If so, to what extent. The learned lower court decided all the issues in favour of the plaintiff/respondent no.1 and passed the impugned Judgment and Order and Decree dated 16.03.2016, hence this appeal. 5. Mr. L.H. Lianhrima, learned senior counsel submits that from the nature of the case, this is actually a Money Suit and the respondents should have approached the Court within 3 (three) years from the alleged date of cause of action. Thus, the case is barred by limitation under Article 27 of the Limitation Act and should have been dismissed outright. The learned senior counsel has relied on the Judgment of the Apex Court in the case of Foreshore Cooperative Housing Society Limited Vs. Praveen D. Desai and Others reported in (2015) 6 SCC 412 . 6. The learned Sr. Counsel also submits that no cash was given to the appellant in this case, but instead, an incomplete Stone Crusher was given to the appellant by the respondent, which could not be used and is lying un-used till date. No action was taken by the respondent in spite of the report made to the Bank Manager that the machine was not workable. However, this fact was not mentioned in the written statement submitted by the counsel for the defendant/appellant for reasons best known only to the counsel. The defendant no.1/appellant had then filed an application under Order VI, Rule 17 of the Civil Procedure Code, 1908 for amendment of the Written Statement and the same was duly registered as Civil Misc Application No 9 of 2016 arising out of Civil Suit No 22 of 2010, which was, however, not considered. 7. The learned Sr. The defendant no.1/appellant had then filed an application under Order VI, Rule 17 of the Civil Procedure Code, 1908 for amendment of the Written Statement and the same was duly registered as Civil Misc Application No 9 of 2016 arising out of Civil Suit No 22 of 2010, which was, however, not considered. 7. The learned Sr. Counsel further submits that plaintiff/respondent No.1 has not been able to prove their case since no documents were exhibited by the sole plaintiff witness and it is not known how the outstanding amount of Rs. 6,74,991/-was calculated and moreover, the loan agreement was not exhibited in the trial court. The plaintiff/respondent No.1 had given the defendant no.1/appellant a non workable Stone Crusher in lieu of the loan amount of Rs. 9,50,000/-and they failed to prove that the loan amount of Rs. 9,50,000/-was received by the defendant no.1/appellant in cash, as claimed by them. That the onus lies upon the plaintiff/respondent No.1 to prove their case against the defendants/appellant, which they have failed to do so. The learned counsel relied on the case of Legal Heirs Parbati Devi Malpani & Ors. Vs. Punjab & Sind Bank & Ors. reported in 2019 (1) GLT page 233 and in Sayed Muhammed Mashur Kunchi Koyal Thangal Vs. Badagara Jumayath Palli Dharas, reported in (2004) 7 SCC 708 . 8. The learned Sr. Counsel further submitted that the loan agreement itself is not valid as no document was registered in this case and thus no sufficient stamp was paid. The learned counsel has relied on the case of Sanglura Sailo (Now Dead) Vs. C. Lalrampari reported in 2013 (2) GLT 274 para 21-22. He thus submits that the Judgment and Order and Decree dated 16.03.2016 is liable to be set aside for the above reasons. 9. Mr. T. Lalnunsiama, learned counsel for the respondent on the other hand submits that when the case was registered in the Lower Court as Civil Suit, it was not challenge or objected in the written statement of the defendants. There was no mentioned about any objection raised for the case being registered as a Civil Suit and cannot not be raised at this stage. 10. There was no mentioned about any objection raised for the case being registered as a Civil Suit and cannot not be raised at this stage. 10. The learned counsel for the respondent no.1 further submits that the written statement of the defendant/appellant shows that there is no specific denial that the defendant no.1/appellant had taken the Small Scale Composite Term Loan on 11.03.2002 for a sum of Rs. 9,50,000/-(Nine lakhs fifty thousand) for his business of stone works and thus CPC Order 8 Rule 3 and Rule 4 are applicable in this case. This case is for the closure and sale and the right of the mortgage as per transferred of Property Act Section 65, thus, this case is covered by Article 62 of the Limitation Act, where the period is 12 (twelve) years. The plaintiff witness had explained that the loan was to be paid in 50 equal instalments of Rs. 19,000/-at @ 135 per annum commencing from September 2004 and since the loan was supposed to be paid in 2004 calculation of due is up to May, 2008 which then amounts to Rs. 6,74,991/-. He further submits that as per the written statement submitted by the defendant, he had accepted that money was given to him. That in the examination in chief and cross examination of the defendant witness no.1, who is the wife of the defendant no.1/appellant, she has admitted that her husband/appellant had asked for loan from Mizoram Rural Bank, Lunglei Branch for setting up Stone quarry and that plaintiff/respondent had agreed to advance a loan of Rs. 9,50,000/-. On cross examination, she admitted that the signature on the loan agreement belonged to her husband and also admitted that she did not know anything about the loan agreement though she has stated that a defective Stone Crusher was given to the appellant. The learned counsel for the respondent thus submitted that the defendant has admitted his liability and has mortgaged his property for the recovery of the loan amount of Rs.9,50,000/-which was received by him. He has relied on the decision of the Apex Court in the case of Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam and Others reported in AIR 1971 SC page 1865. 11. He has relied on the decision of the Apex Court in the case of Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam and Others reported in AIR 1971 SC page 1865. 11. The learned counsel further submits that Section 17 of the Registration Act, does not mentioned about mortgage and Section 17(ii) (ix) & (xi), is not governed by mortgages, thus, this case does not require any registration. The learned counsel has relied on the decision of the Apex court in State Of Haryana & Ors. Vs. Navir Singh & Anr reported in (2014) 1 SCC 105 para 11 & para 14.4. 12. Having considered the submission made by both the parties and on careful perusal of the documents on record, I find that the respondent/plaintiff had filed the case before the learned trial court under order XXXIV CPC and order XXXIV Rule 6 CPC foreclosure and sale of the mortgaged property covered by LSC No.89 of 1974 belonging to the appellant/ defendant No.1 in order to recover the outstanding amount of loan Rs. 6,74,991/-due to the plaintiff on the month of May 2008 along with interest @13% p.a effecting from May 2008. Thus, since this is an application for foreclosure and sale by the mortgagee as laid down in section 63 of Transfer of Property Act, Article 62/63 of the Limitation Act would be applicable in this case and I therefore, find no reason to interfere with the reasoning of the learned lower court on this issue. I also find it not necessary to discuss whether this suit should have been registered as a Money suit when no such objection was initially raised by the defendant/respondent before the trial court. Like-wise the issue of whether the loan agreement should be registered or not under the Registration Act, 1908, are issues that were not raised before the learned trial court and need not be discussed at this stage. 13. From the submissions made by the parties, I find that the main issue to be looked into is whether the appellant had received the loan money of Rs. 9,50,000/-from the plaintiff/respondent no.1. If so, he is to repay the loan money as per the terms of agreement or for foreclosure and sale of the mortgaged property covered by LSC No. 89 of 1974 belonging to the appellant/defendant no.1, in order to recover the outstanding amount of loan. 14. 9,50,000/-from the plaintiff/respondent no.1. If so, he is to repay the loan money as per the terms of agreement or for foreclosure and sale of the mortgaged property covered by LSC No. 89 of 1974 belonging to the appellant/defendant no.1, in order to recover the outstanding amount of loan. 14. What can be noticed from the submissions of the rival parties and from the materials available on record, is that, the appellant had approached the respondent for Small Scale Composite Term Loan on 11.03.2002 for a sum of Rs 9,50,000/-for his business of stone works. As a result, the defendant no.1/appellant mortgaged his LSC No. 89 of 1974 for the purpose of bringing equitable mortgage of the loan and it was taken as security against the said loan amount. .Further, the defendant no.2/respondent no.2 stood as guarantor and executed the Guarantee Agreement in favour of the defendant no.1/appellant on the same date itself. The appellant has however denied receiving the said loan amount of Rs. 9,50,000/-in cash and in his examination in chief as Defendant witness no.2 submits that in lieu of the loan money, an incomplete Stone Crusher was instead given . It is however seen that the appellant/defendant no.1 had not taken this plea in his written statement and the learned Lower Court has held that it cannot travel beyond the pleadings. On perusal of the documents on record, it is seen that the defendant no.1/appellant had then filed an application under Order VI, Rule 17 of the Civil Procedure Code, 1908 for amendment of the Written Statement and the same was duly registered as Civil Misc Application No 9 of 2016 arising out of Civil Suit No 22 of 2010, which was rejected by the learned lower court vide its order dated 11.03.2013. No review or revision petition was filed against this order. I thus find that this court need not go into the issue whether a defective Stone Crusher was given to the appellant or not, which is beyond the pleadings/ written statement of the defendant no.1/appellant. 15. It is seen that only one witness was examined by the plaintiff/respondent to prove their case against the defendant. In Legal Heirs Parbati Devi Malpani & Ors. Vs. Punjab & Sind Bank & Ors. 15. It is seen that only one witness was examined by the plaintiff/respondent to prove their case against the defendant. In Legal Heirs Parbati Devi Malpani & Ors. Vs. Punjab & Sind Bank & Ors. (supra) it was held that: “the elementary rule in Section 101 of the Evidence Act is inflexible and in terms of Section 102, the initial burden of proof is always on the plaintiff and if he discharges that burden and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. The Apex Court in Sayed Muhammed Mashur Kunchi Koyal Thangal Vs. Badagara Jumayath Palli Dharas, (supra), held that the plaintiff can only succeed on the strength of its case and not on the weakness found in the case of defendant, if any. 16. In view of the above, the evidence of the plaintiff/respondent is scrutinized. Mrs. Lalchhuanawmi the Bank Manager of Mizoram Rural bank in her examination-in-chief has stated that the defendant no.1/appellant had approached her and requested her to advance Small Scale Composite Term loan to the tune of Rs. 9,50,000/-for the purpose of business of his stone works. That she had explained all the terms and conditions of the loan and the loan was to be paid in 50 equal instalments of Rs. 19.000/-at @ 135 p.a commencing from September 2004. The loan agreement was executed on 01.03.2004 and the defendant mortgaged his landed property LSC No.89 of 1974 and defendant No.2 stood as the guarantor. The said documents were stated to be exhibited as Exhibit 1, Exhibit 2 as the guarantee agreement and Exhibit 3 as the mortgage landed property but these documents were not duly marked as exhibited in the Court. The defendant no.1/appellant has however admitted that he has signed the loan agreement and thus the said documents are not under challenge. 17. The defendant no.1/appellant who stood as DW2 has however denied that he received the loan money of Rs. 9,50,000/-and stated that he therefore did not give his signature on APR. The plaintiff witness on the other hand, has stated that on 15.03.2004, she had disbursed the sum of Rs. 9,50,000/-for the defendant no.1 through his A/c no/ SSCTL-172 opened by him in their Bank. 9,50,000/-and stated that he therefore did not give his signature on APR. The plaintiff witness on the other hand, has stated that on 15.03.2004, she had disbursed the sum of Rs. 9,50,000/-for the defendant no.1 through his A/c no/ SSCTL-172 opened by him in their Bank. It is however seen that no documents to prove the same has been submitted. The plaintiff witness has also stated that several demand notices were made to the defendant no.1 for repayment of the loan before approaching the court, however no documents in support of this is produced. On cross examination the plaintiff witness, she has also admitted that she was posted as the Bank manager in Lunglei only on October 2011 and admitted that she was not in Lunglei during 2004 and that she was simply representing the Bank. I thus find that statements made by the plaintiff witness are not first-hand knowledge and her statements have not been supported by any documents to prove that the sum of Rs. 9,50,000/-was actually deposited into the account of the defendant no.1/appellant. 18. It is seen that section 101 of the Indian Evidence Act, 1872, states that, ‘Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person’. I thus find that the plaintiff/respondent no.1 had failed to prove that the loan money of Rs. 9,50,000/-was actually deposited into the account of the defendant no.1/appellant. 19. For the above reasons and in view of the mentioned findings of the Apex court in Legal Heirs Parbati Devi Malpani & Ors. Vs. Punjab & Sind Bank & Ors. (supra), I am constrained to hold that the Judgment and Order and Decree dated 16.03.2016 passed by the Senior Civil Judge, Lunglei in Civil Suit No. 22/2010 is liable to be set aside and stands quashed. 20. RFA No.8 of 2016 accordingly is allowed and accordingly stands disposed of. 21. LCR is to be returned to the learned Lower Court.