D S RAJAGOPALAN Vs. A MOHAMMAD ALI

JUDGEMENT

(1.) Defendants in O.S.No.1/1997 on the file of the Subordinate Judge, Thanjavur, are the appellants in the second appeal. The respondent herein filed the suit for a preliminary decree, directing the defendants to pay a sum of Rs.2,18,250/- with subsequent interest thereon at 6% per annum, and for a final decree for the sale of the mortgage property in default of payment on the following averments:

(2.) The defendants borrowed a sum of Rs.2,25,000/- from the plaintiff through one Mohan, their sister's son, agreeing to repay the said sum with 6% interest per annum within a period of six months and executed a simple mortgage. Towards the amount due they paid a sum of Rs.15,000/- and as they attempted to sell the mortgaged property without paying the amount due, it became necessary to file the suit.

(3.) The defendants resisted the suit inter alia on the following contentions: It was false to say that they borrowed a sum of Rs.2,25,000/- from the plaintiff. Their sister's son Mohan had borrowed moneys on promissory notes from the plaintiff. The defendants were asked to execute the suit mortgage deed as security. No consideration passed to the defendants under the mortgage deed. The mortgage at best was only a collateral security. Without proceeding against the principal debtor and without exhausting the remedies against him the suit as framed, was not maintainable. Even assuming without admitting that the plaintiff could proceed against the defendants on the mortgage, in law, he ought to have discharged all the promissory notes or ought to have assigned the promissory notes in their favour. The suit filed was clearly not maintainable and was liable to be dismissed.