JOHRILAL CHOWDHARY Vs. D. SHANKAR CHETTIAR

JUDGEMENT

(1.) The first appellant in A.S.No.895 of 2010-Mr.Johrilal Chowdhary/Plaintiff filed a civil suit in O.S.No.22 of 2004 before the District Court, Cuddalore praying for a preliminary mortgage decree directing the respondent/Defendant Mr.D.Shankar Chettiar to pay or deposit into the Court the suit amount with subsequent interest and costs within the specified time to be fixed by the Court, failing which to pass a final decree to bring the mortgaged property detailed in the schedule for sale and apply the proceeds thereon for satisfaction of the decree amount. The Defendant Mr.D.Shankar Chettiar also filed a civil suit in O.S.No.120 of 2004 before the Additional District Munsif Court, Cuddalore praying for a mandatory injunction directing Mr.Johrilal Chowdhary and Mr.Suresh Chand, the first and second appellants in A.S.No.896 of 2010 to deliver the title deeds relating to the properties belonging to him morefully described in the schedule. Later on, both the civil suits were transferred to the file of the Additional District Court (Fast Tract Court No.2), Cuddalore and renumbered as O.S.Nos.19 and 18 of 2006 respectively and aggrieved by the common judgment and decree passed by the Court below dismissing the suit filed by Mr.Johrilal Chowdhary and decreeing the suit filed by Mr.D.Shankar Chettiar, the present First Appeal Nos.895 & 896 of 2010 have been filed. As Mr.Johrilal Chowdhary passed away during the pendency of the appeals, his legal representatives have been brought on record vide the order of this Court dated 5.2.2020 in both the appeals. For convenience, the appellants and the respondent will be hereinafter referred to as "the Plaintiffs" and "the Defendant" in this judgment.

(2.) The Plaintiffs have pleaded that the Defendant borrowed a sum of Rs.27 lakhs from Mr.Johrilal Chowdhary by executing a promissory note on 4.11.99 agreeing to repay the said amount with interest at the rate of 24% per annum on demand either to him or to his order, The previous loan of Rs.21 lakhs borrowed by the Defendant in the year 1998 was discharged by him. Since the Defendant intended to create a security for repayment of the loan amount of Rs.27 lakhs borrowed on 4.11.99 with interest, deposited the title deeds with reference to the subject property to the Plaintiffs at Sirkali Town on 3.3.2000, i.e., equitable mortgage marked as Ex.A7. Since the equitable mortgage under Ex.A7 was created by the Defendant over the subject property for due discharge of the loan amount with interest due thereon as security, the Defendant also issued a notice on 8.10.2002 through his lawyer marked as Ex.A2 calling upon the Plaintiff to return the title deeds. On receipt of the same, the Plaintiffs also issued a reply notice dated 17.2.2003 marked as Ex.A3 that the Defendant had admitted the receipt of the loan of Rs.27 lakhs and also further admitted the deposit of title deeds in respect of the properties situate at Tirupappuliyur and Gundu Uppulavadi village. When these are all the clear admissions made by the Defendant for acknowledgment of the debt, as per Section 58 of the Evidence Act, the facts admitted need not be proved, hence the Plaintiffs claim deserve to be decreed. Moreover, when the Defendant executed a promissory note dated 4.11.99 at the time of borrowing Rs.27 lakhs agreeing to repay the same with 24% interest, on 3.3.2000, he had deposited the title deeds as security to the loan as a simple mortgage under Ex.A7. Thereafter, when the legal notice dated 8.10.2002 was issued by the Defendant, he had clearly admitted therein the receipt of the loan amount, therefore the admission as to the execution of the promissory note and the deposit of the title deeds by the Defendant would prove that the suit filed by the Plaintiffs on 24.3.2004 was on time.

(3.) After the suit was filed by the Plaintiffs in O.S.No.22 of 2004, which stood transferred and renumbered as O.S.No.19 of 2006, the Defendant filed the civil suit in O.S.No.120 of 2004, which stood transferred and renumbered as O.S.No.18 of 2006, for a mandatory injunction directing the Plaintiffs to deliver the title deeds relating to the property belonging to the Defendant, taking a stand that when both the Defendant and the Plaintiffs had regular dealings from the year 1995, the Defendant pleaded that in the year 1998, he borrowed a sum of Rs.21 lakhs from the Plaintiffs and even before disbursing the loan amount, they had obtained gold and diamond ornaments as pledge for the loan advanced; that the gold jewels weighing about 500 grams and the diamond jewels, namely, one pair of bangle, two necklaces, one pair of stud redstoned necklace, one ring and one ring and that the Defendant was making periodical payments for the said borrowal. Thereafter, when the Defendant again borrowed a sum of Rs.27 lakhs in the year 1999, the Plaintiffs obtained signatures of the Defendant and his wife in various printed forms contained in a book, blank promissory notes, in revenue stamp affixed blank papers and printed papers and also obtained the title deeds relating to the properties situate at Tiruppapuliyur and Gundu Uppalavadi village as pledge. When the Plaintiffs received a total sum of Rs.25 lakhs through periodical payments made by the Defendant between 1998 and 2002, more particularly, when the Plaintiffs 1 & 2 in A.S.No.896 of 2010 had purchased 34 plots valued at Rs.39,25,000/- through nine sale deeds bearing Nos.1795 to 1803 of 2002 registered on the file of the Joint Sub Registrar, Cuddalore on 15.7.2002, without making any payment towards the purchase of the said plots including the registration charges, the Plaintiffs ought to have delivered the jewels, title documents at the time of registration of the documents in their favour. But they were evasive. Therefore, a demand was made through the Advocate notice dated 8.10.2002. After a lapse of four months, on 17.2.2003, the Plaintiffs gave a false reply stating that they had not received any amount from the Defendant. Therefore the Defendant was advised to file the suit for a mandatory injunction directing the Plaintiffs to deliver the title deeds relating to the properties owned by him.