NHERAPOYIL N P MOIDEEN Vs. K NARAYANAN NAIR

JUDGEMENT

(1.) This appeal arises from the judgment and decree of the Sub Court, Quilandy in OS No. 55/91.

(2.) The appellant was the defendant in OS No. 55/91 before the Sub-Court of Quilandy. The respondent herein by name Narayanan Nair filed the suit for realisation of the amount due under an equitable mortgage. The facts are that the defendant borrowed Rs. 1,50,000/- from the plaintiff and on 6.6.1988 the defendant executed a pronote in favour of the plaintiff for that amount with interest. An equitable mortgage deed was also executed by depositing title deeds regarding the plaint schedule properties belonging to the defendant. The period fixed for repayment of the loan was 11 months. There was a stipulation in the mortgage deed to take possession of the plaint schedule properties by the plaintiff in case of default of repayment of the amount. After adjusting the payments made, the balance amount due was Rs. 71,400/- with interest. When that amount was demanded a cheque for Rs. 67,800/- was given to the plaintiff. But that cheque was dishonoured by the bank. Then CC No. 112/90 was filed before the Chief Judicial Magistrate's Court, Kozhikode. Thus the suit was filed for realisation of the balance amount by sale of the mortgage properties shown in the plaint schedule. The defendant contended before the lower court that even though the loan was taken, Rs. 2,03,800/- was paid to the plaintiff. His contention was that the plaintiff had not entered all payments. According to the defendants the payments made are supported by his account books. Thus he made a counter claim for Rs. 40,080/- as the excess amount paid by him.

(3.) After framing necessary issues the Trial Court examined RW. 1 and DW 1 to DW 3. Exts. A1 to A5 and B1 to B6 and XI were marked. After hearing both sides the lower court considered the matter and held that the discharge pleaded was not proved. Thus the counter claim was dismissed and the suit was decreed for Rs. 24,571/- with interest at the rate of 6% per annum. Aggrieved by that judgment and decree the defendant filed this appeal.