IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA No. 286/2003 Reserved on: 18.3.2011 Decided on:20.4. 2011 _____________________________________________ Trilok Chander Gour. …Appellant. Versus M/s. Thakur Investments Private Limited and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Neel Kamal Sood, Advocate. For the Respondents: Mr. N.K. Thakur, Advocate for respondent No.1. Mr. Ravinder Thakur, Advocate for respondents No. 2 and 3. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular First Appeal has been directed against the judgment and decree dated 26.6.2003 rendered by the learned Additional District Judge, Hamirpur in Civil Suit No. 4/99 (RBT No. 3/2002). 2. Material facts necessary for the adjudication of this Regular First Appeal are that the respondent-plaintiff 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for recovery of ` 3,16,000/- with interest @ 22% per annum till payment and costs. According to the plaintiff, appellant-defendant No.1 (hereinafter referred to as ‘defendant No.1’ for convenience sake) approached the plaintiff for advancement of loan. Proforma respondents Narinder Nath Awasthi and Kushal Singh stood guarantors. The loan agreement was executed between the parties on 7.1.1997 (Ex.PW-3/A). An Equitable mortgage deed was also created and registered with Sub Registrar, Kullu on 7.2.1997. According to the terms and conditions of the agreement, plaintiff has advanced loan of ` 2 lakhs and the same was to be re-paid in 24 installments of ` 12,000/- per month. However, defendant No.1 did not repay the amount. It is in these circumstances, the plaintiff instituted a suit against defendant No.1 for recovery of ` 3,16,000/-. 3. Defendant No.1 filed the written statement. On merits, taking of loan amount and execution of mortgage deed is not denied. He has further mentioned that certain papers, printed and blank, were got signed by Anil Thakur from him. The printed papers were having some blank columns. He admitted that sureties were also called upon. He was called upon to execute mortgage of immovable 3 property and the same was done accordingly. The issues were framed by the trial court on 24.4.2000. The suit was decreed by the learned Additional District Judge, Hamirpur on 26.6.2003 for recovery of ` 3,16,000/-with interest @ 22% per annum from the date of filing the suit till the decretal amount was paid by the defendants. Since the loan was obtained by defendant No.1 on the basis of registered mortgage deed Ex.PW-1/A with regard to land measuring 1 bigha 18 biswas situated in village Dobhi, Phati Kharahal, Kothi Kais, Tehsil and District Kullu, the same was ordered to be attached in favour of the plaintiff-company. Defendants were found liable jointly and severally to pay the decretal amount. Defendant No.1 has filed appeal against the judgment and decree dated 26.6.2003. 4. According to Mr. Neel Kamal Sood, learned Additional District Judge has misread and mis-appreciated the oral as well as documentary evidence led by the plaintiff. He also contended that defendant No.1 is not liable to pay interest @ 22%, as ordered. 5. Mr. N.K. Thakur has supported the judgment and decree dated 26.6.2003. 6. I have heard the learned counsel for the parties and have perused the record carefully. 4 7. An Agreement was entered into between defendant No.1 and plaintiff-company on 7.1.1997 vide Ex.PW-3/A. An Equitable mortgage was also created and registered with Sub Registrar, Kullu vide Ex.PW-1/A. A sum of ` 2 lakhs was advanced to defendant No.1. Defendants No.2 and 3 stood guarantors. The amount was to be re-paid by defendant No.1 in 24 equal installments of Rs. 12,000/- per month. The total outstanding amount against the defendant was ` 3,16,000/- on 31.5.1999. 8. PW-1 is Bihari Lal. He was Registration Clerk of Sub Registrar, Kullu. He had brought the original mortgage deed No. 266 dated 7.2.1997 on the basis of which land of defendant No.1 was mortgage vide mortgage deed Ex.PW-1/A in favour of the plaintiff-company. PW-2 Rewat Ram is a marginal witness. He was also present when it was registered in the office of Sub-Registrar, Kullu on 7.2.1997. PW-3 Tilak Raj was examined to prove that defendant No.1 executed Ex.PW-1/A and he got the same registered in the office of Sub-Registrar, Kullu. In his cross-examination, he has deposed that defendant No.1 signed the mortgage deed Ex.PW-1/A after going through the contents of the same carefully. Defendant No.1 also executed Ex.PW-3/A after duly understanding the contents of the same. PW-4 Narinder Nath 5 is defendant No.2. He has supported the case of the plaintiff- company with regard to execution of mortgage deed. He also signed the same as guarantor for defendant No.1. According to him, a sum of ` 2 lakhs was advanced to defendant No.1 by the plaintiff-company @ 22% interest per annum. He was required to pay the same in 24 installments @ ` 12,000/- per month. PW-5 is Anil Kumar. He has proved the mortgage deed Ex.PW-1/A and also the execution of the loan agreement Ex.PW-3/A. The plaintiff-company has duly proved the execution of loan agreement Ex.PW-3/A and equitable mortgage deed Ex.PW-1/A. Defendant has not led any evidence. 9. What emerges from the evidence led by the plaintiff-company is that the loan of ` 2 lakhs was advanced to defendant No.1 on the basis of loan agreement Ex.PW-3/A and mortgage deed was executed vide Ex.PW-1/A. Defendant No.1 has made default. Evidence led by the plaintiff-company remained un-rebutted and the plaintiff-company has conclusively proved that it was entitled to claim the amount of ` 3,16,000/- with interest @ 22% per annum as per the terms and conditions of the loan agreement Ex.PW-3/A. 10. Mr. Neel Kamal Sood has strenuously argued that his client could not be ordered to pay interest @ 22% per 6 annum. However, defendant No.1 had agreed to repay the loan amount with interest @ 22% per annum as per the terms and conditions contained in Ex.PW-3/A. 11. Accordingly, in view of the observations made hereinabove, there is no merit in the Regular First Appeal and the same is dismissed. However, in the interest of justice, it is made clear that at the time of execution of the decree, the Executing Court shall take into consideration the principles laid down by their Lordships of the Hon’ble Supreme Court in Ambati Narasayya versus M. Subba Rao and another AIR 1990 SC 119. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 20.4. 2011 *awasthi*