THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO.96 OF 2006 DATED: 31-01- 2011. Between S.Aruna Kumari … Appellant-Plaintiff And 1.K.Sri Rami Reddy and others …Respondents-Defendants THE HON'BLE SRI JUSTICE K.C. BHANU APPEAL SUIT NO.96 OF 2006 JUDGMENT: This appeal is directed against the judgment and decree, dated 20-10-2005, in O.S.No.265 of 1998 on the file of the Principal Senior Civil Judge, R.R. District, L.B. Nagar, Hyderabad, whereunder and whereby the suit filed for cancellation of mortgage deed, was dismissed and the counter claim of the 1st defendant was decreed for Rs.2,95,000/- with subsequent interest at 6% p.a. from the date of counter claim till the date of realization. 2. Appellant herein is the plaintiff and the respondents herein are the defendants in the suit. 3. The averments of the plaint in brief are as follows: The father of the plaintiff purchased the vacant plot with a room in the name of plaintiff after her marriage and the brothers of plaintiff constructed the schedule house with their money and given to the plaintiff. 3rd defendant is the husband of plaintiff and plaintiff is in possession of the property. After one year of the marriage, 3rd defendant addicted to bad vices. The plaintiff studied up to VII Class and she does not know English and taking advantage of her ignorance, 3rd defendant under pretext that he is purchasing plot in her name, colluded with defendants 1 and 2 fraudulently obtained her signature on mortgage deed, dated 06- 06-1997 under which, he mortgaged the property for Rs.2,50,000/- to be repayable on or before 05-06-1998. On 01-04-1998 defendants 1 and 2 came to the property in the absence of 3rd defendant and demanded the plaintiff to pay Rs.2,50,000/- with interest and also threatened to dispossess her. She enquired with her husband, but he avoided to give any reply and after long quarrel and pressure from the father and brothers of plaintiff, he disclosed that he mortgaged the property to 1st defendant for Rs.2,50,000/- under the pretext of purchasing plot in the name of plaintiff. Again defendants 1 and 2 on 24-05-1998 along with supporters came to the property and threatened the plaintiff to leave the house. Hence, the suit. 4. Defendant Nos. 2 and 3 set ex parte. The 1st defendant filed written statement and counter claim stating that plaintiff and D3 being wife and husband are well known to him and both of them approached and requested him to advance loan of Rs.2,50,000/- and offered to mortgage the house. Accordingly, he advanced Rs.2,50,000/- to the plaintiff who received the amount and voluntarily executed registered mortgage deed in his favour on 06- 06-1997 and D3 and one Ram Mohan Rao are the attestors to the document and the document was executed towards security for repayment of loan. The plaintiff agreed to repay the debt within one year with interest at 18% p.a. with a condition that if she failed to pay the amount, the defendant can take vacant possession of the mortgaged property and dispose off the same. Therefore, he is entitled to recover the mortgage debt with interest and the plaintiff is liable to pay the amount. In stead of paying the amount, the plaintiff colluded with D3 and filed this suit with false allegations. He denied that he played fraud on the plaintiff and obtained mortgage deed. He is not aware whether father of the plaintiff purchased the plot and later constructed the schedule house and given to the plaintiff. As the plaintiff voluntarily executed mortgage deed on receipt of Rs.2,50,000/-, he is entitled to recover mortgage debt with interest at 18% p.a. from 06-06-1997 to 05-06-1998 and penal interest at 30% p.a. from 06-06-1998 till date of realization. 5. The plaintiff filed rejoinder to the counter claim of D1 stating that the counter claim is not maintainable. D2 and D3 who are the attestors to the documents and parties to the suit were set exparte due to non-filing of written statement. The defendant has not come to the Court with clean hands with counter claim. If D1 wants to recover the mortgage debt, he has to file a suit for redemption of mortgage deed or closure of the mortgage deed and hence, she prays to dismiss the counter claim of D1. She also filed written statement to the counter claim stating that the counter claim is not maintainable as she has not received any consideration. D1 stated in the notice that hand loan of Rs.2,50,000/- was taken by the plaintiff, but no details were mentioned in the mortgage deed and in the counter claim. D1 took long time to pay Court fee as such he has no financial capacity to lend the amount. As D2 and D3 were set exparte, the mortgage document cannot be taken into consideration. When the mortgage deed is not genuine, the counter claim cannot be decreed and hence, she prays to dismiss the counter claim. 6. Basing on the above pleadings, the following issues were settled by the trial Court: 1. Whether the mortgage deed, dated 06-06-1997 was obtained by fraud from the plaintiff? 2. Whether the mortgage deed is not binding on the plaintiff and it is legally not enforceable? 3. To what relief? The following Additional issue was framed: Whether D1 is entitled to recover the amount of Rs.2,50,000/- towards mortgage debt and interest of Rs.78,000/- in total Rs.3,32,000/- from the plaintiff? 7. On behalf of the plaintiff, P.Ws.1 to 5 were examined and Exs.A1 to A9 were marked. On behalf of the 1st defendant, D.Ws.1 to 4 were examined and Exs.B1 to B4 were marked. 8. The trial Court after consideration of oral and documentary evidence on record, came to the conclusion that the plaintiff failed to prove that mortgage deed was obtained by playing fraud on the plaintiff and accordingly dismissed the suit. However, the counter claim of the 1st defendant for recovery of amount was decreed. Aggrieved thereby, the plaintiff filed this appeal. 9. Now the point for determination is whether the judgment and decree of the trial Court is correct, legal and proper? 10. Learned counsel appearing for the appellant-plaintiff contended that in a mortgage suit, preliminary decree has to be passed, that the suit was not filed for redemption or foreclosure of the mortgage, that in view of the contradictory statements of witnesses with regard to passing of consideration, the counter claim ought not to have allowed, that the counter claim is not maintainable, that the remedy of the 1st respondent-1st defendant is to enforce the mortgage by filing a separate suit for the relief and hence, he prays to set aside the impugned judgment. 11. On the other hand, learned counsel appearing for the 1st respondent-1st defendant contended that in view of the fact that the registered mortgage deed was not obtained by playing fraud, the counter claim of the 1st respondent was allowed, that as the suit is not based upon the mortgage for foreclosure or redemption, the amount covered by the mortgage was decreed, that therefore, there is no need to pass a preliminary decree and hence, he prays to dismiss the appeal. 12. The appellant herein filed the suit contending that the mortgage deed, dated 06-06-1997 was obtained by playing fraud and therefore, it is not binding on the plaintiff and it is not legally enforceable. Even the 1st defendant admitted that the plaintiff is the absolute owner of the property. According to the plaintiff, her husband signed the document without enquiring into the details of the document and she did not know the contents of the document and she was not well versed with English language. Therefore, the plaintiff is admitting her signature in the document Ex.B1. D3 who is no other than the husband of the plaintiff after receipt of summons did not file any written statement. If really, P.W.1 signed Ex.B1 without knowing the contents or at the instance of her husband, definitely she would have examined her husband to prove the plea taken in the plaint. Similarly, P.W.1 has not given any explanation as to why Ex.B2, original sale deed was handed over to D1 while mortgaging the property. Therefore, in such circumstances, even assuming for a moment that her husband handed over original sale deed Ex.B2 to D1, she would have knowing about handing over of the same, but no explanation was given by the plaintiff. Though it is stated that her husband is not residing with her since a long time, there is no evidence to show that whether there were any disputes existing between P.W.1 and her husband. Even assuming for a moment that there were disputes between P.W.1 and her husband, she would have subscribed her signature to Ex.B1 and consequently handed over the sale deed-Ex.B2 to D3. Except taking a plea that Ex.B1 was obtained by D1 by playing fraud on her, the same was not substantiated with any other evidence. D2 was examined as D.W.2. He admitted that himself and D3 attested Ex.B1. So execution of Ex.B1 has been proved and similarly the consideration of Rs.2,50,000/- was also proved. D.W.4 who is the co-employee of D1 to D3 supported the case of D1. Therefore, from the overwhelming evidence on record, it is clear that Ex.B1 was executed by the plaintiff. The contention that it was obtained by playing fraud cannot be accepted. 13. Further, Ex.B1 was executed duly mortgaging the house site and it is a registered document and the contents have been proved. The evidence of D.Ws. 1 to 4 would go to show that the plaintiff mortgaged the property for a consideration of Rs.2,50,000/-. Therefore, the plaintiff is liable to pay the amount. Though the suit is not filed, even counter claim is not based upon foreclosure of the suit by mortgage or redemption of mortgage and it is only a claim for refund of amount based upon mortgage deed, the trial Court rightly decreed the counter claim for Rs.2,95,000/-. Therefore, absolutely there are no grounds to interfere with the same. 14. Accordingly, the Appeal suit is dismissed. No order as to costs. ________________ K.C. BHANU, J DATED: 31-01-2011 Hsd