SURISETTY NOOKARATNAM Vs. SARAGADAM GOWRI RAMALAKSHMI

JUDGEMENT

(1.) THE Appellant -1st defendant - Smt.Surisetty Nookaratham in O.S. No.83 of 1995 on the file of the Senior Civil Judge, Anakapalle, preferred this appeal against respondent -plaintiff -Saragadam Gowri Ramalakshmi Impugning the judgment and mortgage preliminary decree dt.03.04.2002 in said suit filed for the reliefs of recovery of Rs.1,09,209/ - with interest at 21% p.a.(from the default to repay with 18% p.a. within three years of the borrowal), by personal decree and also mortgage preliminary decree for sale of mortgaged property in the event of failure to redeem by said defendant and another(second defendant subsequent vendee from defendant No.1) based on Ex.A1 simple Regd. mortgage deed dated 06.05.1989 executed by the 1st defendant in favour of Pentakota Jagga Rao, which in turn was transferred/assigned in the name of plaintiff under Ex.A2 registered transferred deed dated 21.02.1990 and for subsequent interest and costs.

(2.) BEFORE deciding the appeal lis, the factual matrix of the case from the pleadings and the evidence of both sides before the trial Court which is the subject matter of the appeal is the following: - 2(a). As per plaint in brief, in addition to what is referred above to avoid repetition, that the 1st defendant borrowed Rs.50,000/ - from one Pentekota Jagga Rao and executed Ex.A1 registered simple mortgage bond dated 06.05.1989 with the terms referred above hypothecating plaint schedule property in his favour agreeing to repay the same with interest within three years or else with enhanced rate of interest; that 1st defendant paid Rs.7,125/ - on 20.02.1990 towards part payment and endorsed the same covered by Ex.A5, that the plaintiff paid Rs.50,000/ - to Pentakota Jagga Rao on 21.02.1990 towards full and final settlement under mortgage bond and obtained the Ex.A2 transfer of the same under registered transfer deed and as such the plaintiff is entitled to recover the balance amount, that the 1st defendant having failed to repay within the stipulated time of the mortgage debt by 06.05.1992; also executed Ex.B1 registered sale deed dated 01.02.1993 for the plaint schedule property in favour of the 2nd defendant and thereby both the defendants are liable for payment of suit amount and hence the suit claim with costs and subsequent interest against them.

(3.) (a). The appeal by defendants impugning legality and correctness of trial Court judgment is with the contentions in the grounds of appeal that the decree and judgment of the trial Court is contrary to law, weight of evidence and probabilities of the case, that the trial Court should have held that the Ex.A.1 mortgage deed is not true, valid and binding on the defendant and also the plaintiff did not pay of Rs.50,000/ - to Pentakota Jagga Rao in got obtained transfer under Ex.A.2 registered transfer deed,dt.21.02.1990; that the suit is bad for mis -joinder and also non -joinder of husband and children of the 1st defendant, that the interest claimed is usurious, excessive and penal, that it should have drawn adverse inference against the plaintiff for her non - examination and also her transferor Pentakota Jagga Rao evidencing transfer of mortgage deed under Ex.A.2 for valuable consideration, that the subject matter of simple mortgage deed Ex.A.1 dated 06.05.1989 is the joint family property consisting of 1st defendant, her husband and her three daughters( two are minors) and one son who have joint right in the property mortgaged, that simple mortgage deed Ex.A.1 dt. 06.05.1989 is not true, valid and binding on the persons mentioned supra, that sale deed Ex.B.2 dt.01.02.1993 executed by GPA holder is not true, valid and binding on the 1st defendant, that the 1st defendant is an agriculturist and a small farmer holding Ac.0.10 cents of land situated in Gollagam village, Subbavaram Mandal and her principal source of livelihood is only agriculture as evidenced by pattadar passbook Ex.B.3, that the 1st defendant is entitled to the benefits under the amended Act 7 of 1977 by Act 45 of 1987 and Act 2 of 1990 and also of the amended Act 4 of 1938 and the mortgage even if true thus gets abated, that the plaintiff and 2nd defendant are business people and as such they are not entitled to the benefits under Debt Relief laws and hence to set aside said decree and judgment by dismissing the suit claim with costs.