K APPA RAO Vs. V L VARADARAJ

JUDGEMENT

(1.) THE defendant in C. S. No. 81 of 1968 on the original side of this Court is the appellant in this appeal. THE respondents are the legal representatives of the deceased plaintiff, who died pending the suit. THE deceased plaintiff laid the suit for the recovery of the amounts due on a promissory note, marked in this case as Exhibit P-1, dated 27th March, 1967, executed by the defendant for a sum of Rs. 49,671 with interest thereon at 10" per cent, per annum. THE defendant contended in the main that he had several money dealings with the deceased plaintiff from the year 1945 that the deceased plaintiff had been a professional money lender that he had been charging interest on arrears of interest due on each loan advanced by him under a promissory note and taking renewal promissory notes for the total amount including compound interest every two or three years that for the suit promissory note, the actual amount borrowed by him was only Rs. 17,300 under four promissory notes, viz., Rs. 4,000 on 4th April, 1955, Rs. 10,000 on 18th November, 1955, Rs. 1,700 on 1st April, 1958 and Rs. 1,600 on 7th August, 1961 that these promissory notes were renewed by three promissory notes with added interest on 10th March, 1958 for Rs. 18,085, on 27th March, 1961 for Rs. 26,779 and on 12th March, 1963 for Rs. 35,341 and that eventually the single promissory note for the consolidated sum of Rs. 49,671 including further interest and interest on interest due up to 27th March, 1967, was taken from him. THE defendant wanted to be relieved and protected against such untenable, usurious, unfair and unconscionable claim of Rs. 32,371 and he sought reliefs under the provisions of the Usurious Loans Act and the Madras Money Lenders Act by re-opening all the aforesaid transactions prior to the suit promissory note and ascertaining the reasonable amount payable for interest. According to the defendant, upon such calculation, the interest lawfully payable on the principal debt of Rs. 17,300 will be less than Rs. 10,000. THE defendant also refers to the prior litigation between him and the plaintiff in respect of the mortgage dated 9th May, 1949, executed by him in favour of the plaintiff for Rs. 3,15,000 and the pendency of the Civil Appeal No. 2175 of 1972 before the Supreme Court of India. According to him, the final decision of the Supreme Court will enable this Court to determine as to whether the suit promissory note also will get discharged or not upon re-opening all the money dealings between him and the deceased plaintiff. THE defendant would also challenge the competency of plaintiffs 2 and 3 to come on record as the joint executors of the codicil purported to have been left by the deceased plaintiff. On the above pleadings, the following issues were framed for consideration: "1. Whether the suit pronote is a renewal of prior pronotes with added interest and interest on arrears of interest"

(2.) IN the event of any excess payment being found in C. A. No. 2175 of 1972, then is the defendant entitled to have the same adjusted in law or in equity in discharge of the admitted claim of the suit pronote"

(3.) ON the first submission, learned counsel for the appellant, wants to rely on Exs. D-1 to D-5, which, according to him, are the copies of the earlier promissory notes which preceded the suit promissory note. Earlier, in the course of the argument, the learned counsel was under the impression that the said copies have been marked without any objection as to admissibility. But this stand of the learned counsel is found to be not correct, because the documents, Exs. D-l to D-5 have, in fact, been marked subject to admissibility. As rightly pointed out by the learned trial Judge, the earlier promissory notes, treated as discharged on the execution of the subsequent promissory notes by the appellant, ought to have been returned to the appellant only. The appellant has no convincing explanation as to why he has not taken back the original discharged promissory notes. Learned counsel for the appellant made much out of the fact that the appellant, in the course of his evidence as D. W. 1, has stated that he has given notice to produce the prior promissory notes and on the basis of the statement of D W.1 learned counsel for the appellant contended that the earlier discharged promissory notes were only with the deceased plaintiff. We are unable to accept this argument. In the first place, by the time the suit was taken up for trial the original plaintiff was dead and, therefore, there was none to admit or deny this statement of D. W, 1. Secondly, the appellant has not produced any copy of the notice which he claimed to have given for the production of the prior promissory notes. In view of this, we are unable to hold that the discharged promissory notes, if any, were only with the deceased plaintiff. Exs. D-l to D-5 are merely typed copies. There is no authentication as a true copy in any of these documents. The appellant has not slated that these copies, Exhibits D-l to D-5 were made from or compared with the originals. Hence no reliance can be placed on these documents to uphold the contention of the appellant that the evidence the transactions that are said to have preceded the suit promissory note. However, as the learned trial Judge points out, Exhibit P-1 itself recites that it was in renewal of a promissory note executed by the appellant in favour of the deceased plaintiff for Rs. 44,775 on 12th March, 1966. Apart from accepting this position, it is not possible to look into these documents to uphold the case of the appellant with regard to the earlier transactions.