GURUNADHA RAO Vs. PALUKURI VENKATESWARA RAO

JUDGEMENT

(1.) Heard Sri Kanakaraju, counsel representing the appellant and Sri Ramesh Kumar Nayani, counsel representing the respondent. The plaintiff in O.S.No.130/87 on the file of Subordinate Judge, Vizianagaram, aggrieved by the modification of the Judgment and decree, so far as it relates to the granting of interest at 24% per annum with quarterly rests in A.S.No.60/92 on the file of I Additional District Judge, Vizianagaram, is concerned, had preferred the present Second Appeal, and pending the Second Appeal, the appellant died and the present appellant, appellant No.2, was brought on record in C.M.P.No.15735/2000 by an order dated 11-10-2000 and at present the 2nd appellant is prosecuting the present litigation.

(2.) The facts of the case are very plain and simple. The deceased plaintiff filed the suit O.S.No.130/87 on the file of Subordinate Judge, Vizianagaram for passing a preliminary decree directing the defendants to pay a sum of Rs.24,583-30 together with interest at 24% per annum with quarterly rests on the principal amount of Rs.10,000/- due on a simple mortgage bond executed by the defendant in favour of the plaintiff on 4-10-1982. The 2nd defendant is the minor son of the 1st defendant and both are the members of the joint Hindu family governed by the Mitakshara School of Hindu Law and the 1st defendant is the father, manager and kartha thereof and for their joint family necessity, they borrowed from the plaintiff a sum of Rs.10,000/- on 4-10-1982 agreeing to repay the same with compound interest @ Rs.2/- per Rs.100/- per month within three years therefrom and in evidence thereof the defendants executed a registered simple mortgage bond of even date in favour of the plaintiff giving security of their house property described in the schedule. Subsequent thereto, the 1st defendant made part payments. In spite of repeated demands made by the plaintiff and despite the issuance of registered notices, since the defendants had not chosen to pay the balance, the suit was instituted.

(3.) The 1st defendant filed a written statement on his behalf and also on behalf of his minor son, the 2nd defendant, wherein it was pleaded that the 1st defendant never borrowed any amount from the plaintiff and never signed and executed the deed of simple mortgage in favour of the plaintiff at all on 4-10-1982 or on any other date either by himself and on behalf of the 2nd defendant and the 1st defendant also denied the receipt of notices and had taken a plea that they have no necessity to borrow any amount and equally the plaintiff had no capacity to advance so much of amount and the interest stipulated @ 24% compound interest is excessive, exorbitant, unconscionable and the same is hit by Usurious Loans Act. On the strength of the pleadings, as many as six Issues were settled. The plaintiff had examined himself as PW-1 and the attestor of the mortgage deed dated 4-10-1982 Ex.A-1 was examined as PW-2. Apart from Ex.A-1, Exs.A-2 to A-12 also were marked and none had been examined on behalf of the defendants and hence the Court of first instance granted a preliminary decree decreeing the suit partly with costs for a sum of Rs.24,583-30 with subsequent interest on Rs.10,000/- at the contractual rate of 24% per annum from the date of suit till the date of realization as against the 1st defendant and four months time was granted for redemption. But however, the suit against the 2nd defendant was dismissed, without costs.