IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.314 of 2003 Thangavel Padayachi ..Appellant/Defendant Vs. Rajamanickam ..Respondent/Plaintiff Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 17.6.2002 in A.S.No.147 of 2001 on the file of the Principal District Court, Cuddalore, against the judgment and decree dated 28.6.2001 in O.S.No.249 of 1999 on the file of the Additional Sub-Court, Vridhachalam. For Appellant : Mr.R.Subramaniam For Respondent : No appearance JUDGMENT The Second Appeal is filed by the defendant against the judgment and decree dated 17.6.2002 in A.S.No.147 of 2001 on the file of the Principal District Court, Cuddalore, modifying the judgment and decree dated 28.6.2001 in O.S.No.249 of 1999 on the file of the Additional Sub-Court, Vridhachalam. 2. The averments in the plaint are as follows: The defendant is the owner of the suit properties. He borrowed Rs.20,000/- from the plaintiff on 31.10.1988 and executed a mortgage deed in respect of the suit properties and agreed to repay the same with interest @ 12% p.a. But inspite of repeated demands, he never repaid the amount. Hence, he gave a notice and after receipt of the notice, the defendant replied with false allegations. Hence, the plaintiff came forward with the suit for preliminary decree of mortgage and for costs. He prayed for a decree. 3. The gist and essence of the written statement filed by the defendant are as follows: The suit is not maintainable. The defendant's son, the plaintiff and the attestors of mortgage deed are working in abroad. https://hcservices.ecourts.gov.in/hcservices/ The defendant's son Porkai Pandian sent Rs.10,000/- by way of 'hundial' through the plaintiff. He also promised to send another Rs.10,000/- by way of 'hundial' through the other person. Since the defendant got third marriage, Porkai Pandian feared that he has encumbered over the properties and so, he has not sent Rs.10,000/-. The simple mortgage is not supported by Rs.10,000/-. The averments mentioned in the simple mortgage deed are not true. In the year 1972, he dug a Well. He has obtained electricity service connection in 1976 itself and so, the averments in the suit mortgage deed are not correct. At the time of registration of the mortgage deed, no amount has been paid. So, at the time of mortgage, no amount has been received by him. The defendant having financial status, lent money to others and so there is no need for him to borrow money from the plaintiff. So, he is not liable to pay any amount. It is further stated that Rs.9,600/- which was received by him through 'hundial' sent by his son, has been repaid. So, he prayed for dismissal of the suit. 4. The trial Court, after considering the averments made in the plaint and in the written statement, framed two issues and considering the oral evidence of P.Ws.1 to 3, D.W.1, and Exs.A-1 to 4, decreed the suit and preliminary decree of mortgage for Rs.10,000/- has been passed. Against that, the plaintiff preferred appeal. Learned first appellate Judge, after considering the arguments of both the counsel, has framed three points for determination and allowed the appeal and modified the judgment and decree of the trial Court and decreed the suit as prayed for in the plaint and preliminary decree of mortgage has been passed. One month time was granted for payment. Against that, the defendant has come forward with this Second Appeal. 5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration: "(i) Whether in law the lower appellate Court was right in failing to see that once the defendant had discharged the burden of proving that there were doubts regarding consideration for Ex.A-1, it was for the plaintiff to prove his case under Section 114 of the Evidence Act read with Section 118 of the Negotiable Instruments Act? (ii) Whether in law the lower appellate Court was right in failing to see the discrepancies in the plaint and deposition while decreeing the suit in entirety?" 6. Substantial questions of law: The respondent as plaintiff filed the suit for recovery of money due on mortgage. The defendant raised a plea that the mortgage https://hcservices.ecourts.gov.in/hcservices/ is not supported by consideration and discharge. The trial Court has decreed the suit for Rs.10,000/-. Against that, the respondent- plaintiff preferred appeal. The appeal has been allowed, modifying the judgment and decree of the trial Court and the suit has been decreed as prayed for in the plaint. Against that, the present Second Appeal has been preferred by the defendant. 7. Learned counsel for the appellant-defendant would contend that Ex.A-1 is dated 31.10.1988 and the suit has been filed on 16.7.1999. Notice has been issued and the mortgage is not supported by consideration of Rs.10,000/-. He has repaid that amount also. So, the trial Court has considered this aspect and came to the correct conclusion. The first appellate Court has not considered the same. He further stated that as per the direction of this Court, 50% of the decree amount has been deposited. Hence, he prayed for allowing the Second Appeal. 8. The respondent-plaintiff would contend that execution of Ex.A-1 is admitted. Since the appellant-defendant has not repaid the debt amount, notice has been issued under Ex.A-2. The appellant- defendant has given a reply and in that it is stated that the mortgage has not been supported by consideration to the tune of Rs.10,000/- and he also averred that he has repaid the amount of Rs.9,600/- on 10.11.1996. In Ex.A-4--reply notice, the appellant- defendant has stated that he is ready to repay the principal amount of Rs.10,000/- with interest from 30.10.1996. But in his written statement, he has taken a contrary view. His defence and reply notice prove that he has not come to the Court with true facts. The first appellate Court has considered these aspects in proper perspective and prayed for dismissal of the Second Appeal. 9. The execution of Ex.A-1 simple mortgage, is admitted. In his written statement, the appellant-defendant has stated as to in what circumstances, Ex.A-1 came into existence. But it is the duty of the appellant-defendant to prove the same. Except the ipse-dixit of the appellant-defendant in the written statement, no oral or documentary evidence is available to show that Ex.A-1 has come into existence as alleged by the appellant-defendant in his written statement. It is pertinent to note that before filing the suit, the respondent-plaintiff has issued notice under Ex.A-2, which has been received by the appellant-defendant under Ex.A-3 acknowledgement card. The appellant-defendant sent reply under Ex.A-4. In Ex.A-4, he categorically admitted the execution of the mortgage deed, but he has stated that he has received only Rs.10,000/- alone. He also stated that the defendant on 10.11.1996, he calculated interest and paid Rs.9,600/- in the presence of Muthazhagan, son of Perumal and Ramasamy, S/o Govindasamy. Then, he also fairly conceded that in Ex.A-4 that he is ready to pay Rs.10,000/- principal amount and also interest from 31.10.1996. Since he denied that the mortgage is not https://hcservices.ecourts.gov.in/hcservices/ supported by consideration to the tune of Rs.10,000/- and partial discharge, the respondent-plaintiff has come forward with the suit. 10. At that time, the appellant-defendant raised a different defence, stating that Ex.A-1 has come into existence since he got the mortgage and through his son, he has paid Rs.10,000/- by way of 'hundial' to the plaintiff and he agreed to send 'hundial' through another person, but the respondent-plaintiff has not received the same and without safeguarding the properties from his father who has got mortgage, Ex.A-1 came into existence. To substantiate the same, none has been examined. Per contra, the respondent-plaintiff has examined himself as P.W.1 and P.W.2 Chinnappan and even though one Alagaperumal has been examined as P.W.3, he has not supported the case neither the plaintiff nor the defendant. In such circumstances, the earlier version of the appellant-defendant is clearly proved that he executed Ex.A-1 and so, the burden is upon him to prove that it is not supported by consideration to the tune of Rs.10,000/-. As already stated, except the ipse-dixit of the appellant-defendant in the written statement, no one has been examined to prove that Ex.A-1 is not supported by consideration. That fact has been considered by the first appellate Court. I am of the opinion that Ex.A-1 is fully supported by consideration to the tune of Rs.20,000/-. For the reasons stated above, the respondent-plaintiff has proved his case under Section 114 of the Indian Evidence Act that Ex.A-1 is fully supported by consideration. 11. It is to be seen that whether the appellant-defendant has discharged the loan to the tune of Rs.9,600/-. But no evidence is available. In his written statement, in page 4, the appellant- defendant has stated that he has paid Rs.9,600/-. To prove the same, he has not examined any witness. But in his reply notice Ex.A-4, he has stated that he paid Rs.9,600/- on 10.11.1996 calculating interest, in the presence of Muthuazhagen, son of Perumal and Ramaswamy, son of Govindan. But that also has not been proved by him by way of examining his witnesses. So, the partial discharge was also not proved by the appellant-defendant. 12. So, I am of the opinion that the appellant-defendant has not paid any single pie for the amount due under Ex.A-1 mortgage deed. In the previous paragraphs of this judgment, it was decided that Ex.A-1 is fully supported by consideration to the tune of Rs.20,000/- and the discharge has not been proved by the appellant- defendant. So, the appellant-defendant is liable to pay the amount due on Ex.A-1 as prayed for in the plaint. Hence, I do not find any irregularity or illegality in the judgment and decree passed by the first appellate Court. So, I am forced to concur with the findings of the first appellate Court. The substantial questions of law are answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ 13. In fine, the Second Appeal is dismissed. The judgment and decree of the first appellate Court are confirmed. No costs. 14. It is stated by learned counsel for the appellant- defendant that the appellant-defendant has already deposited Rs.19,638/- before the trial Court, as per the order of this Court, dated 27.7.2006 in C.M.P.No.2926 of 2003 and so, the said amount is to be given credit to the present decree amount. Two months' time is now granted to the appellant-defendant for payment of the balance amount. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Principal District Judge, Cuddalore. 2. The Additional Subordinate Judge, Virudhachalam. 3. The Section Officer, V.R.Section, High Court, Madras. + 1 c.c. to Mr. R. Subramanian, Advocate. S.R.No.541. S.A.No.314 of 2003 AR (CO) GSK 22.01.2010. https://hcservices.ecourts.gov.in/hcservices/