S PANNEER SELVAM Vs. M PONMOZHI

JUDGEMENT

(1.) The defendant in the original suit is the appellant. The suit was filed on the basis of a promissory note dated 08.11.2007 and an equitable mortgage created by deposit of title deeds made on 09.11.2007 in respect of the property described in the plaint schedule. The respondent herein/plaintiff had averred that the appellant herein/defendant borrowed a sum of Rs.1,20,000/- on 08.11.2007 and executed the suit promissory note on the same day promising to repay the said amount with an interest at the rate of 18% p.a and on the succeeding day, namely on 09.11.2007, he created an equitable mortgage by depositing his title deed, namely a registered settlement deed dated 13.07.2007 relating to the property described in the plaint schedule, with intention to create a security for the debt. Further averment made in the plaint is that despite repeated demands, the appellant/defendant did not pay any amount either towards interest or towards principal and hence, the respondent/plaintiff had to file the suit for recovery of a sum of Rs.1,27,200/-, the amount due as on the date of plaint, with subsequent interest and cost. Since the suit was filed based on the equitable mortgage allegedly created in respect of the suit property, he had prayed for a preliminary decree for sale of the mortgaged property fixing a date for the payment of the amount due under the mortgage and for a final decree for the sale of the property on default of payment of the said amount and also for a personal decree in case the sale proceeds would not be sufficient to discharge the suit claim.

(2.) The suit was resisted by the appellant herein/defendant contending that the suit promissory note dated 08.11.2007 and the memorandum of deposit of title deeds dated 09.11.2008 were not executed by him in favour of the respondent/plaintiff; that the settlement deed referred to in the plaint was not deposited with the respondent/plaintiff with the intention of creating a security for the loan and thereby creating an equitable mortgage and that those documents were created by using the signatures obtained by the respondent/plaintiff when he had lent money on an earlier date for which he was collecting exorbitant interest. It was the further contention of the appellant/defendant that 2007 to 2008, little by little he borrowed a total sum of Rs.70,000/- from the respondent/plaintiff for which the respondent/plaintiff was claiming interest at the rate of Rs.345/- per day. It was the further averment made in the written statement that the respondent / plaintiff used to make a note of the same in a pocket book that had been handed over to the appellant/defendant whenever default was committed in payment of the daily interest. It was the further contention made in the written statement that till the date of filing of the written statement he had paid a total sum between Rs.50,000/- to Rs.60,000/- and that in view of the collection of exorbitant interest, that too daily interest, a complaint came to be preferred against the respondent/plaintiff by Kaliammal, the wife of the appellant/defendant, on 03.03.2008 and in the enquiry conducted in the police station, the respondent/plaintiff agreed to get a sum of Rs.80,000/- and discharge the appellant/defendant from the liability of making payment in respect of the loan transaction between the plaintiff and the defendant. It is the further contention of the appellant/defendant that after having agreed before the police to accept Rs.80,000/- in full quit, he had chosen to fill up the blank promissory note forms and the blank papers containing the signature of the appellant/defendant and filed the suit. Based on the above said pleadings, the appellant / defendant had prayed for the dismissal of the suit.

(3.) The learned trial Judge, who conducted trial after framing issues, considered the evidence and came to the conclusion that the suit promissory note and the memorandum of deposit of title deed were created with the help of the signatures obtained in the blank promissory note form and blank papers as contended by the appellant/defendant and based on the said finding dismissed the suit without costs by a judgment and decree dated 27.10.2009. On appeal, the learned lower appellate Judge, namely Principal District Judge, Salem, re-appraised the evidence and came to the conclusion that the defence plea of the appellant herein/defendant was not substantiated and accepted the plea of the plaintiff. Resultantly, by a judgment and decree dated 30.09.2011, the learned appellate Judge allowed the appeal, set aside the decree of the trial Court dismissing the suit and granted a preliminary decree for sale of the mortgaged property. The learned appellate Judge quantified the amount due as follows: <FRM>JUDGEMENT_598_LAWS(MAD)1_2013_1.html</FRM>