IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SECOND DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 680 OF 2001 BETWEEN: A.Daffedar Ranga Raju (died) by his L.R. …APPELLANT AND Smt. Annemma Angadiparakadival Mathew and others. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 680 OF 2001 JUDGMENT: The defendants in O.S.No. 56 of 1999 (O.S.No. 193 of 1991 on the file of Subordinate Judge, Madanapalle) on the file of Senior Civil Judge, Punganur, is the appellant herein. 2. The suit was filed for recovery of Rs.2,09,400/- being the principal and interest due on a mortgage transaction. 3. The allegations in the plaint go to show that one A.R. Raju is the son-in-law of the 1st defendant and both of them have produced a movie by name ‘PRATHI PHALA’. At the time of production of the picture, they approached the husband of the plaintiff and accordingly, a sum of Rs.1,80,000/- was paid and the 1st defendant executed a registered mortgage deed with regard to the suit schedule property. A sum of Rs.30,000/- was paid on 12-02-1990 and a sum of Rs.50,000/- was paid on 12-04-1990 and inspite of repeated demands, the balance was not paid and legal notice was also issued, but the amount was not paid. Hence this suit. 4. The 1st defendant filed a written statement, admitting that the husband of the plaintiff has taken Rs.2,00,000/- as loan on the security of his N.R.I. deposits and paid a sum of Rs.1,80,000/- the suit mortgage was executed as security for the said amount of Rs.1,80,000/-. He further submitted that on 10-10-1989 one A.Kumar Sekhar had entered into an agreement with A.R. Raju in order to obtain the right of the distribution of Tamil film called “Nagam en Daivam” for a sum of Rs.2,25,000/-. During the said transaction, A.Kumar Sekhar has agreed to pay the distribution amount in favour of Krishnappa, who is the husband of the plaintiff, indebted by A.R. Raju. In furtherance of the settlement, the said A.Kumar Sekhar has paid a sum of Rs.1,60,000/- to the husband of the plaintiff under two instalments. But, N.Krishnappa has issued the stamped receipt, dated 09-12-1989 for a sum of Rs.1,12,000/-. Further, on 12-02-1990 and on 12-04-1990 N.Krishnappa has received a sum of Rs.30,000/- and Rs.50,000/- respectively and the same was duly acknowledged by the plaintiff in the suit document. The plaintiff is only the name lender for all the above transactions and acting to the tunes of her husband N.Krishnppa. Thus, for all purposes, the plaintiff has received the total sum of Rs.2,40,000/- against the suit document. The recitals in the suit document are also crystal clear with regard to the earlier transaction entered between A.R. Raju and N.Krishnappa. The suit amount is completely discharged. Whenever the defendant asked the plaintiff to return the suit document, the plaintiff used to postpone the same under some lame pretexts. The husband of the plaintiff is trying to make dual benefit out of the single transaction. The defendant had already sent the detailed and clear reply to the plaintiff. There is no privity of contract between the suit parties. The suit filed by the plaintiff is frivolous and fictitious. Therefore, the defendant pleaded for dismissal of the suit. 6. On the basis of the above pleadings, the following issues have been framed by the original Court (Subordinate Judge, Madanapalle), for trial: 1) Whether the suit mortgage came into existence under the circumstances mentioned in para 3 of the written statement? 2) Whether the discharge pleaded by the defendant is true? 3) To what relief? 7. Pending disposal of the suit, the 1st defendant died and the legal representatives were brought on record as defendants 2 to 5. 8. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A-1 to A-8. On behalf of the defendants, DWs.1 to 4 were examined and marked Ex.B-1 and Ex.X-1. 8. After considering the evidence on record, the learned Senior Civil Judge, Punganur, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 9. The points that arise for consideration are: 1) Whether the suit mortgage bond is supported by consideration and enforceable against the defendants? 2) Whether the suit is bad for non-joinder of proper parties? 3) Whether the discharge pleaded by the defendants is true ? 4) Whether the judgment and decree passed by the learned Senior Civil Judge, Punganur, is legal and sustainable? 10. POINTS: In this case, the 1st defendant, who is the original executant of the mortgage deed, died and he filed written statement, admitting the execution of the mortgage bond and also the receipt of the consideration by DW-2. As against this plea in the written statement, when the legal representatives were brought on record, the 2nd defendant as DW-1, and DW-2 tried to contend that, as if, the mortgage deed was obtained by coercion and fraud and that the mortgage deed is not true. In fact, such a plea is not open to be raised by the legal representatives when the original executant of the mortgage bond has admitted the execution of it. 11. Further-more, the contention of the 1st defendant that no consideration was received under the mortgage deed cannot be accepted for the simple reason that payments were affected towards the mortgage debt and endorsement of payment was made on the mortgage bond and the said payments are Exs.A-3 & A-4. If really the mortgage bond is not supported by consideration and there is no liability, there is no need for making endorsement of payment of Ex.A- 1. In fact, it is sought to be pleaded on behalf of the defendants that the entire mortgage debt was discharged by DW-3 by paying the amount in two instalments and Ex.B-1 receipt is said to have been issued. Therefore, the contention that no consideration was received under Ex.A-1 and not enforceable cannot be accepted. Further-more, even according to the case of the plaintiff and the 1st defendant, the money was paid to the son-in-law of the 1st defendant, who is DW-2, and as a security to the said debt, the mortgage bond was executed. Any document executed as a security need not show that the consideration was paid to the executant. In many cases, it happens that for the money borrowed by another person, as a security and willingly, the mortgage is created. In this particular case, the evidence on record and the pleadings clearly establishes that the suit mortgage bond is supported by consideration and the lower Court rightly held so. 12. So far as the contention of the counsel for the appellant that DW- 2, who is the beneficiary under the loan, was not added as party is concerned, evidently the decree on the basis of the mortgage bond is for enforcement of the liability on the mortgage debt and DW-2 is not an executant and no contemporaneous document was executed by DW-2 undertaking to repay the debt. Therefore, when the suit is filed for enforcement of the mortgage, the suit can only be filed against the executant of the mortgage bond. Therefore, the above contention of the defendants also cannot be accepted. 13. So far as the payments of the debt under Exs.A-3 and A-4 is concerned, there is no dispute. According to the case of the defendants, a sum of Rs.1,60,000/- was paid in full settlement by DW-3 in two instalments. If really such payments were made and the debt was totally discharged, either the 1st defendant or DW-3 would have insisted for endorsement of the same on the mortgage deed when earlier payments were so endorsed. According to the case of the defendants, DW-3 is said to have been entered into an agreement with DW-2 with regard to the same distribution rights and from that transaction, a sum of Rs.1,60,000/- is said to be paid to the husband of the plaintiff. The said agreement is mortgaged as Ex.A-2. As per the evidence of DW-3, who is said to have discharged the debt due under the mortgage, in one instalment a sum of Rs.1,12,000/- was paid, and in second instalment a sum of Rs.48,000/- was paid. He also admitted that the husband of the plaintiff filed O.S.No. 116 of 1991 and obtained an injunction. According to him, the original of the receipts were retained by the husband of the plaintiff and Ex.B-1 Photostat copy was given to him. Therefore, it is to be seen as to whether the plea of the defendant that amount was discharged by DW-3 is to be accepted or not. Ex.B-1 is said to be dated 09-12-1989 for a sum of Rs.1,12,000/-. For the payment of the Rs.48,000/- subsequently, no receipt was taken. He claims to have paid the amount one month after Ex.B-1. According to him, Ex.A-2 is the Photostat copy of the agreement, dated 10-10-1989 and contents therein are admitted by him to be correct. He admitted that by the date of original of Ex.A-2, only a sum of Rs.15,000/- is payable to the lessors within 60 days. Therefore, it is quite clear that after 10-10-1989 DW-3 was not indebted to DW-2 to a tune of Rs.1,60,000/- to be paid by him. Further- more, if a discharge is made under mortgage debt, receipt, if any, should have given to the 1st defendant. The 1st defendant has not filed it and no notice was given for production of the original from the plaintiff. The evidence of PW-2, who is husband of the plaintiff, clearly goes to show that no payment was received by him under Ex.B-1 or subsequently. The evidence of PW-2 also goes to show that the distribution agreement on 01-10-1988 is also not true. Therefore, the relationship between DW-2 and PW-2 was not cordial prior to Ex.B-1 transaction, or by the date of Ex.B-1 transaction. Any payment without valid endorsement on the mortgage deed is not valid. Evidently, even if the discharge is true, it is not to the plaintiff, who is the holder of the agreement and there is nothing to show that she has authorised her husband to receive the same. When the defendant, who was in business line, is aware of the endorsements to be made on the mortgage deed and if the total amount was repaid, DW-3 at least should have asked for the return of the original mortgage deed if the entire amount was paid. The persons, who were associated with Ex.B-1 were not at all examined. Though DW-4 claims to be present at the time of Ex.B-1 transaction, he did not attest it. Therefore, the lower Court has rightly rejected the claim of the defendants about the repayment of the money and I do not find any infirmity in the judgment and decree passed by the learned Senior Civil Judge, Punganur. Accordingly, issues are answered. 14. In the result, appeal is dismissed. There shall be no order as to costs. Date: 22-02-2011. ________________________ N.R.L.NAGESWARA RAO, J INL