PRAKASHCHAND DHANDORE Vs. PRADEEP KUMAR JETHWA

JUDGEMENT

(1.) This appeal is directed against the impugned judgment and decree dated 26-08-2010 passed in Civil Suit No.5-A/2007 by the Ninth Additional District Judge, (FTC), Durg, by which, the learned trial Court has dismissed the suit of the appellant-plaintiff.

(2.) The appellant-plaintiff filed a suit against the Respondent-defendant for recovery of possession of mortgaged property, refund/recovery of loan amount advanced as also for decree of specific performance on the pleadings, inter alia, that on the request of the defendant, from time to time, in need of money, loan was advanced by the plaintiff. According to the plaintiff, the defendant was advanced loan of Rs.2,10,000/- firstly on 07-10-1996 and mortgage in respect of the property in dispute was created vide mortgage deed executed on 07-10- 1996, Ex.P-1. Later on, the defendant again needed some more money as he was continuously facing loss in business, therefore, on his demand, further some of Rs.2,60,000/- was paid by the plaintiff to the defendant on 21-09-1999. Promissory Note Ex.P-2 was also executed on the same date by the defendant, acknowledging that he had taken loan of Rs.4,70,000/- and that he will repay the loan on demand and if he fails to repay, the plaintiff would be entitled to get the property in dispute sold in his favour by way of registered deed to be executed by the defendant. It was further pleaded that the plaintiff gave a registered notice, Ex.P-8, raising demand for payment of Rs.4,70,000/-, which, despite receipt of notice, was not repaid, therefore, the plaintiff had to file the suit.

(3.) The defendant denied the plaint allegations of having executed mortgage deed or even the promissory note. According to the defendant, he was in need of money, therefore, he had borrowed Rs.1,10,000/- from Tarachand, father of the plaintiff and not from the plaintiff. According to him, the said amount was repaid by him in installments. Further, pleading of the defendant was that some of the title documents of the defendants were deposited with Tarachand. Later on, when the defendant again needed some more money to carry on his business, he again contacted Tarachand and then Tarachand again imposed certain conditions. According to the defendant, Rs.1,00,000/-, though agreed to be paid him by Tarachand, but neither the amount was paid nor property documents were returned to him. Case of the defendant was that the signatures were obtained on two occasions on blank stamp paper and he never executed mortgage deed or promissory note in favour of the plaintiff.