CHELLAMMAL Vs. THANGAM FINANCE COMPANY

JUDGEMENT

(1.) The defendants in O.S. No. 473 of 2004 on the file of the II Additional District Munsif Court, Tirunelveli are the appellants in this second appeal.

(2.) The suit was filed for directing the defendants to pay a sum of Rs.85,462.00 with interest at 36% p.a. and in default, order sale of the schedule property through court and adjust the sale proceeds towards the decree. The plaintiff prayed for passing a personal decree in the event of the sale proceeds being insufficient to satisfy the decree. The suit was filed on the basis that the suit property had been mortgaged by depositing the title deeds. The case of the plaintiff was that the mortgage by deposit of the title deeds took place on 26/5/1995. The plaintiff had advanced a sum of Rs.80,000.00 on the strength of the said equitable mortgage. The loan was repayable in 20 installments. But only a sum of Rs.24,700.00 was paid. The rest remained unpaid. Thiru. Martin who was given loan passed away on 29/5/1995. The defendants have given an undertaking to discharge the debt in three years. They did not however do so. The plaintiff therefore issued notice dtd. 16/5/2003 calling upon the defendants to settle the mortgage dues. The defendant sent a reply dtd. 24/5/2003 repudiating their liability. In these circumstances, the suit came to be laid on 13/10/2003. The defendants filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial court framed the necessary issues. On the side of the plaintiffs, three witnesses were examined. Ex. A1 to Ex. A11 were marked. The defendants 1 and 2 examined themselves as D.W. 1 and D.W. 2. Ex. B1 to Ex. B7 were marked. After considering the evidence on record, the trial court by judgment and decree dtd. 21/10/2005 dismissed the suit. Aggrieved by the same, the plaintiff filed A.S. No. 8 of 2006 before the I Additional Sub Court, Tirunelveli. By the impugned judgment and decree dtd. 27/2/2007, the first appellate court reversed the decision of the trial court and directed the defendants to pay a sum of Rs.95,261.00 with interest at 36% per annum from the date of suit claim till the date of realization. In the event of default, the property was ordered to be sold so as to satisfy the decree. In other words, the suit was decreed by the impugned judgment and decree as prayed for. Aggrieved by the same, the second appeal came to be filed. The second appeal was admitted on 20/7/2010 on the following substantial questions of law-

(3.) The learned Senior Counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellants and set aside the impugned judgment and decree and restore the decision of the trial court. Since the respondent had been set ex parte and remained un-represented, I carefully went through the evidence on record and independently scrutinized the same.