THANGAVEL PADAYACHI Vs. RAJAMANICKAM

JUDGEMENT

(1.) 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. 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.