MOHANA CHANDRA PILLAI Vs. RAMACHANDRAN

JUDGEMENT

(1.) The petitioner in O.S. 185 of 1994. The suit was filed alleging that for the purpose starting hotel business the defendant borrowed a sum of Rs, 1,50.000/-A on 16.4.1993 agreeing to repay the same with interest at the rate of 18% per annum and that the details of the agreement were reduced to writing in an agreement prepared on a stamp paper on the same day to which both parties affixed their signatures in the presence of witnesses. In addition to the prayer for recovery of the amount from the defendant there was also a prayer that in default of payment the plaintiff might be allowed to realise the amount by sale of the dependent's property. When the plaintiff went to the box to depose as PW1 the question of marking the agreement in question arose. As per the impugned order that was decided. It was found that the document was compulsorily registered since it referred to a charge for the amount borrowed, and in view of Section 49(c) of the REGISTRATION ACT, 1908, the impact of nonregistration was that it could not be received in evidence of the transaction and that in the circumstances the document cannot be let in evidence. On the same date, the Court also proceeded to pass a separate judgment, dismissing the suit based on the findings in the impugned order and finding that the suit was not maintainable.

(2.) According to the learned Counsel for the revision petitioner the impugned order is unsustainable. It is pointed out that the document consists of two severable parts; one dealing with the personal liability of the defendant to pay the borrowed amount and the other with regard to the right of the lender to realise the amount charged on the property of the borrower. According to Mr. Sohan who argued that case of the revision petitioner if the latter part of the agreement was found to be unenforceable in view of the prohibition in Section 49 of Indian REGISTRATION ACT, 1908, the suit can still be proceeded with against the defendant as far as the personal liability is concerned. It was also argued by him that the fact that the Court below passed a separate judgment dismissing the suit does not affect the relief prayed for in the revision and that once the impugned order is found to be unsustainable, the judgment also has to go and the matter has to be sent back. The relevant case law was also cited by him.

(3.) I have heard the learned Counsel for the respondent also.